God help me, I thought of John Eastman as a friend. 

Today he stands accused in the court of public opinion of being the chief legal architect of Donald Trump’s push to overturn the 2020 election and remain in office. But before that he was a law professor, an activist, and a man with a lot of friends. I’ve been one of them.

By “friend” I mean the friendship one law professor develops with another across ideological lines. Eastman is a devoted member of the far-right caucus of the Federalist Society. I am a devoted progressive and longtime member of the American Constitution Society. We have never agreed on much.

But the ethos of the legal academy bids ideological adversaries to reach across philosophical lines. That supposedly furthers the values we claim to believe in—rational inquiry, open-mindedness, a search for truth. Eastman’s career as an academic was highly political and resolutely far right, but it was also distinguished. As professor and eventually dean of Chapman University School of Law, he was respected by people on both sides of the philosophical divide. Most important to me, of all the Federalists whom I have (for my sins) debated over three decades, John was the only one who ever publicly said, “You know, you raise an interesting point—I am going to have to think about that.” 

Today, the strange career of John Eastman raises questions about whether any of those values—civil discourse, careful analysis, mutual respect, the entire small-l liberal intellectual project—have any substance at all, or are just fairy tales that disguise the grim reality that law, and everything else in American politics, is nothing more noble than a knife fight in the dark.

It’s hard to overstate how much trouble John Eastman is in. On January 6, 2021, he spoke to the “Save America” rally on the Washington Ellipse that led to the bloody attack on the Capitol by a mob of Donald Trump’s supporters. Since then, headline after headline has indicated actions taken or threatened against him: Only a few days after he spoke at the January 6 rally, three members of Chapman’s board demanded that he be disciplined. Soon after, the school announced that Eastman would retire and instead concentrate on his visiting professorship in “Conservative Thought and Policy” at the University of Colorado. The Colorado chancellor, meanwhile, said in a statement on January 7 that “[Eastman’s] continued advocacy of conspiracy theories is repugnant, and he will bear the shame for his role in undermining confidence in the rule of law.” Shortly after that, Colorado canceled Eastman’s classes for lack of enrollment and stripped him of his other duties. 

On December 9, 2021, in a deposition taken by the staff of the House Select Committee to Investigate the January 6th Attack on the United States Capitol, Eastman invoked the Fifth Amendment roughly 100 times. He invoked the Fifth again in an appearance in front of a Georgia grand jury investigating the Trump team’s efforts to pressure Georgia authorities into reversing the result in that state and awarding its electors to Trump.

On March 28, 2022, Judge David O. Carter of the Central District of California wrote in a published opinion that “it is more likely than not that President Trump and Dr. Eastman dishonestly conspired to obstruct the Joint Session of Congress on January 6, 2021”—that is, the official certification of the electoral vote totals that made Joe Biden president. If proved, Carter concluded, Eastman’s actions violated 18 U.S.C. § 371, which forbids conspiring to “defraud the United States,” by “dishonestly” conspiring to file false electoral votes for Trump from states carried by Biden. That statute provides a maximum of five years in prison. 

Then, in December 2022, the January 6th Committee, in its final report, issued a “criminal referral” against Eastman by name, proposing a federal indictment for violation of 18 U.S.C. § 1512(c). That statute forbids “corruptly” obstructing, influencing, or impeding “any official proceeding.” Although the committee suggests criminal referrals against Trump, or “President Trump and [unnamed] others,” six times, in only one of these referrals does it name another specific person as a potential defendant: John Eastman. 

In January of this year, the California State Bar Trial Counsel announced public proceedings to strip Eastman of his legal credentials. The bar’s complaint alleged six counts of “Moral Turpitude—Misrepresentation” in Eastman’s public statements alleging that the 2020 election was stolen from Trump; one count of “Seeking to Mislead a Court” because, as a lawyer for the Trump campaign, he signed a motion to join the Texas lawsuit asking the Supreme Court to overturn the election; and one count of “Failure to Support the Constitution and Laws of the United States,” because he allegedly tried to pressure then Vice President Mike Pence into rejecting the electors from states Biden won.

Neither the committee’s “referral” nor Carter’s ruling constitutes even a formal charge of criminal wrongdoing. The case in Carter’s court is a civil, not a criminal, proceeding over a subpoena for Eastman’s emails, and a congressional “referral” is nothing more than a suggestion to the Department of Justice. The California Bar has not taken action against Eastman, and might never do so. Criminal charges might be forthcoming—either from the January 6 special counsel Jack Smith or from a state grand jury in Atlanta investigating Trump-campaign pressure on election officials to reverse Biden’s win in Georgia—or, equally likely, they might not.

But criminal jeopardy aside, I’ve become fascinated with what the January 6th Committee’s final report says Eastman did before, during, and after January 6—from the point of view not of a prosecutor, but of a legal scholar. According to the report, after the 2020 election Eastman took up a role as Trump’s consigliere on all matters having to do with “vote fraud” and the Electoral College. He advised Trump that alleged violations of state law in swing states had favored Biden and thus rendered the elections illegitimate, and that the legislatures of those states could respond by “electing” false slates of electors for Trump. He also advised Trump that Pence, who by the terms of the Constitution presides over the electoral vote certification, had the power to reject votes from states in which “unlawful” elections had been held, delay the certification of Biden’s win, and send the issue back to state legislatures, which might decide to pick the electors themselves. 

One of the committee’s most important charges is that the latter theory is so thin that Eastman didn’t even believe it himself. How did someone with such a firm professional identity, and such credibility within his chosen legal world, risk it all by making a mockery of the Constitution he claimed to revere?

I reached out to Eastman for an interview, and to my surprise, he accepted gladly. When we spoke on the phone, he was exactly as I remembered—charming, voluble, seemingly candid, eager to engage in debates over legal theory. There was no hint that I was talking to a man brought to bay by some very powerful forces and facing the full shaming power of the Twitterverse; indeed, the conversation was more like a skull session one might have with a colleague in the faculty lounge. In no way did he admit, or seem to feel, that he had done anything wrong, or, except in the most general way, fire back against his accusers.

As a class, law professors are among society’s mildest, most rule-oriented members. We cite, analyze, and apply the law; we criticize it; we suggest improvements. We imagine new situations and suggest new doctrines to respond to them. We draft proposed statutes and regulations. We testify before legislative hearings. 

We advocate for our ideas. We push the constitutional envelope and sometimes suggest unprecedented actions. And sometimes we advise private clients, government figures, and other lawyers. We pretty much don’t, as part of a normal career, conspire to violate the law; for constitutional scholars like John Eastman and me, it’s very unusual to be accused of conspiring to overthrow the government. 

I can’t help seeing Eastman’s story as a cautionary tale about the peril that awaits all of us when we venture out of the daily world of rules and norms and into the shadow world created by a figure like Trump, whose persistent message is that he is above the law—indeed, that the very idea of “law” is irrelevant to someone like him—and that if we follow him, we can be above the law as well. I also think Eastman’s story tells us something about a serious wrong turn American conservatism took a quarter century ago, and about the dangerous path the Republican Party seeks to guide the nation on.

John Eastman grew up in Nebraska and finished high school in Texas. He graduated from the University of Dallas in 1982 with a bachelor’s degree in politics and economics; then, a decade later, he gained a PhD from Claremont Graduate University, part of the venerable Claremont Colleges consortium in the suburbs of Los Angeles, with a dissertation on “Public Education at the American Founding.” Claremont, then and now, was a center of a school of highly intellectual hard-right conservatism that foregrounded religious history and values as the supposed core of American law and government. Progress on Eastman’s degree was slowed because he took time off to serve as campaign chair for his dissertation adviser, William B. Allen, in a run for the U.S. Senate in 1986. Allen got 0.65 percent of the primary total—fewer Republican votes than the former Black Panther Eldridge Cleaver—but Ronald Reagan’s administration at that time was on the prowl for aggressive Black conservatives, and Allen fit the bill. In 1987, Reagan named Allen a member, and then chair, of the U.S. Commission on Civil Rights. Eastman became the commission’s press spokesman. 

Allen was one of those flamboyant Reagan conservatives who repeatedly went out of their way to outrage those who did not share their far-right philosophy. In 1989, during the height of the AIDS crisis, he gave a high-profile address to an anti-gay Christian group in California. His speech was titled “Blacks, Animals, and Homosexuals: What Is a Minority?” (“Express laws for minority groups,” he warned, “is the beginning of the evil of reducing American blacks to an equality with animals, and then seducing other groups—including homosexuals—to seek the same charitable treatment.”) That same year, Allen thrust himself into a private child custody dispute that he thought had racial overtones by bringing a film crew onto the White Mountain Indian reservation and, without the permission of her guardians, conducting a filmed interview with a 14-year-old Native girl. Suspecting that they were kidnappers, Arizona sheriff’s deputies and reservation police detained the group for five hours before releasing them without charge. Eventually, the incoming George H. W. Bush administration forced Allen’s resignation to prevent Congress from killing the Civil Rights Commission entirely.

Back in California, Eastman ran for the House in 1990 in a Democratic district, and lost. He worked briefly in real estate, then entered the University of Chicago School of Law. After he got his law degree in 1995, he played a card from the Reagan days—his friendship with Clarence Thomas.

Thomas, like Allen, was an abrasive Black conservative elevated by Reagan and put in charge of an agency (the Equal Employment Opportunity Commission) whose mission he seemed to largely disdain. As Emma Brown and Rosalind Helderman wrote in a detailed Washington Post intellectual biography of Eastman, the staff of the EEOC and the Civil Rights Commission frequently met, and Eastman said later that he and Thomas “had many fond dinners.” But the bond was deeper—it ran through the conservative motherlode that was Claremont. As the Post profile explained, 

At the EEOC, Thomas had hired a pair of scholars from the Claremont Institute, at the base of the San Gabriel Mountains outside Los Angeles, where Eastman had been a research associate during graduate school. As Thomas has told the story, John Marini and Ken Masugi engaged him in a sort of tutorial on the American founding, complete with reading assignments and discussions.

Eastman’s new mentor had been named to the Supreme Court in 1991 by George H. W. Bush. Very few law graduates are social friends and intellectual compatriots of Court justices; Thomas was hiring Eastman not only as a clerk but also as a friend and comrade-in-arms. Eastman himself has repeatedly paid tribute to Thomas as an employer and mentor, and as an influence on his own constitutional thinking.

The clerkship, as such high court positions do, opened many doors for Eastman. After it, he moved swiftly into the professoriate, joining Chapman’s Dale E. Fowler School of Law, which was then only four years old but already in an updraft that brought the school first American Bar Association accreditation and then recognition as a major West Coast institution. In only his second year as a professor, Eastman became part of the Republican effort to stop recounts in Florida after the 2000 election and guarantee the White House to George W. Bush. 

Here’s Eastman’s own summary of his role in the Florida recount standoff, from a court filing in the case before Carter:

Dr. Eastman was called upon by the Florida legislature to give expert testimony about constitutional issues arising under the elector and electoral college provisions of the Constitution; was retained by the Florida legislature to craft legislation that would protect that State’s electoral votes; and participated as an attorney on behalf of the George W. Bush presidential campaign in post-election litigation in Florida.

In the years after that, Eastman swiftly moved from tenured professor to endowed chair holder, and then became dean of the law school in 2007. But, as his mentor William Allen told the Post, “he was a political animal from his undergraduate days”—and so, when his three-year term as dean expired, he ran for the Republican nomination for attorney general of California. Eastman told me he felt called to make that race because California’s then attorney general, Jerry Brown, had refused to defend Proposition 8, the anti-same-sex marriage initiative passed in 2008. “I was involved in the Proposition 8 campaign as well as the litigation,” he said, “and the attorney general of the state was refusing to defend the initiative adopted by the people of the state.” He lost by a 13 percent margin to Los Angeles County District Attorney Steve Cooley, who in turn narrowly lost the general election to Kamala Harris. “I think I would’ve beaten our now vice president had I won the nomination,” Eastman told me. 

Throughout, as director and then chairman of Chapman’s Center for Constitutional Jurisprudence, Eastman maintained a hyperactive career as a conservative legal activist. Under his leadership, his 2014 résumé reveals, the center filed at least 69 amicus briefs in the Supreme Court, weighing in on virtually every high-profile constitutional case that came before the Court—as many as 14 in 2014 alone. He also maintained a busy pro bono practice on behalf of conservative causes like religious freedom and property rights. He was active in his Catholic parish, served as a leader of Boy Scout and Cub Scout troops, and joined the National Executive Committee of the Federalist Society. In 2011, he joined the National Organization for Marriage as board chair. NOM is a well-funded antigay and anti-trans political action group whose greatest success had come in 2008 with the passage of Proposition 8. (The initiative was struck down by the Supreme Court in a 2013 case, Hollingsworth v. Perry, that paved the way for the Court’s 2015 decision in Obergefell that the states must allow same-sex marriage.) 

Eastman’s legal scholarship appeared frequently in law reviews, most often, but not invariably, in journals associated with the Federalist Society or the conservative legal movement generally. His op-eds appeared in news outlets from The Sacramento Bee to USA Today. 

By his mid-50s, in other words, Eastman would seem to have been sitting pretty. Believe me, readers, being a senior law professor is a very sweet gig: You write what you want and people treat you as if you know a lot.

But as it does for many law professors in the middle of their career, politics was still calling to Eastman. Having triumphed in brutal faculty meetings, profs yearn for real power. Most of them are well aware that two of the past three Democratic presidents—Bill Clinton and Barack Obama—served stints in the legal ivory tower. Hillary Rodham Clinton and Elizabeth Warren both tried to follow their example, as did Harvard’s Lawrence Lessig. Missouri Republican Senator Josh Hawley clearly hopes that in some distant post-Trump era he will be the first Republican ex-professor to do the same. And since William Wolcott Ellsworth of Trinity College became the first law professor to join the U.S. House, in 1829, more than 50 other profs have served in the House or Senate.

Every French soldier, Napoleon is believed to have said, carries a marshal’s baton in his rucksack; many a professorial book bag bulges with gavel and robe, just in case the president calls while the prof is sipping sherry in the senior common room. But the definition of a federal judge, in the old saying, is “a lawyer who knew a senator.” Politics is the way to forge those ties.

And then there’s television, which can be a way of furthering political aspirations and drawing the attention of powerful patrons. Eastman’s TV career picked up steam during the Trump years. He made it onto Fox News only once during Trump’s first two years. But when the Republicans lost control of the House after 2018, his green room footprint deepened as he amassed 36 appearances, defending Trump on everything from the Mueller Report to the first impeachment. (The “I need you to do me a favor” phone call with Ukrainian President Volodymyr Zelensky, Eastman told Fox’s Laura Ingraham on January 28, 2020, “was a perfectly appropriate thing to do, because there is massive evidence of corruption that we ought to be looking at in this country.”) 

As a scholar, Eastman was a generalist—his articles, speeches, and op-eds cover a wide range of topics: the possible limits on Congress’s spending power, the case against same-sex marriage, President George W. Bush’s anti-terrorism measures, the privileges or immunities clause of the Fourteenth Amendment, and state “sovereign immunity” under the Eleventh Amendment. They tend, in fact, to focus on the issues the conservative and religious right legal movements were involved with at a given time, and faithfully to promote the far-right line. 

One major preoccupation does show up, however: the proper meaning of the Fourteenth Amendment’s guarantee that “all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside.” The majority of scholars believe that these words guarantee birthright citizenship to any child (with the exception of the small number who are covered by diplomatic immunity) born on U.S. soil—and in the only Supreme Court decision on the issue, the justices in 1898 found that the guarantee covered the California-born child of legal Chinese immigrants. 

Eastman and a few others, however, argue that the words “subject to the jurisdiction” require something additional—perhaps that the parents be lawful permanent residents of the U.S., and thus that children born to undocumented parents (or even those here legally on temporary visas) are born without U.S. citizenship—and perhaps without any citizenship anywhere. This idea has been floating around on the right fringe of constitutional thought for a generation. Eastman’s 2014 CV shows no fewer than 56 speeches, debates, articles, op-eds, or congressional testimonies pushing the restrictive view. One of his constitutional jurisprudence center’s proudest boasts was that one of its amicus briefs espousing this view might have inspired a glancing comment in a dissent by Antonin Scalia that Yaser Hamdi, a Guantánamo detainee who was born in Louisiana to parents on legal temporary visas, was only a “presumed American citizen.” Thus it wasn’t entirely surprising that, after then Senator Kamala Harris, the daughter of immigrants from Jamaica and India, became Joe Biden’s 2020 running mate, Eastman wrote an opinion column in August 2020 for Newsweek suggesting that because her parents were “merely temporary visitors” to the U.S. when she was born, she was not only ineligible to be vice president but also not even a legitimate U.S. senator.

Newsweek later apologized for publishing this extreme position: “We entirely failed to anticipate the ways in which the essay would be interpreted, distorted and weaponized … All of us at Newsweek are horrified that this op-ed gave rise to a wave of vile Birtherism directed at Senator Harris.” Eastman defends the piece to this day. He points out that he didn’t invent the theory as a slap at Harris; he’s been pushing it since at least 2001. 

But it’s certainly possible that Eastman’s creation of a new birther-style meme found favor with America’s foremost birther, Donald Trump. Trump had burst into national politics with his single-minded embrace of the claim that Barack Obama was actually born in Kenya; during the 2016 campaign he loudly proclaimed that children of the undocumented should not be citizens—and, in fact, not just of the undocumented. During the Republican primary campaign he claimed first that Senator Ted Cruz (born in Canada to an American mother) was ineligible to run, then geared up to challenge Senator Marco Rubio (born in the United States to legal immigrants from Cuba) as well. Eastman disclaimed knowledge of who first put his name before Trump. “I didn’t have any dealings with him” until after the election, he told me. 

At any rate, two weeks after the Newsweek op-ed appeared, the Trump lawyer Cleta Mitchell brought Eastman aboard the campaign’s volunteer “Election Integrity Working Group,” which was preparing to contest the expected theft of an election still two months away. By the next month, the nearness to Trump’s orbit seems to have begun working its sinister magic. Erwin Chemerinsky, a prominent progressive who is currently the dean of the University of California Berkeley School of Law and a former dean of the University of California at Irvine’s law school, recalled that he and Eastman had been debate partners for 16 years on the conservative professor Hugh Hewitt’s high-profile radio show. Chemerinsky recalled their association fondly. “I always felt that he was very conservative,” he told me, but “we were arguing the issues” rather than trading barbs. That October, however, Chemerinsky made a joint radio appearance with Eastman on a different program and found him changed. “John was very different than he ever was before,” Chemerinsky said. “He was nasty, he was talking over me. It was almost like debating Trump.”

On December 5, 2020, Eastman signed a formal document assuming a role as counsel for Trump and the Trump campaign in their election challenges. This wasn’t cable news provocation anymore. Now he was in the World Series, taking the pitcher’s mound for a team that was behind by three runs in the top of the ninth inning. He was, in other words, about to get in seriously over his head. 

In his account of events, Eastman was brought in because the campaign was anticipating a challenge to the election results by Texas and other red states. Texas filed that lawsuit three days later, and because this was an “original action” by states against other states, it went directly to the Supreme Court. The next day, Eastman was the sole counsel signing a motion by Trump to intervene in that case. That motion made two claims. The first was that the vote totals were suspicious:

President Trump prevailed on nearly every historical indicia of success in presidential elections. For example, he won both Florida and Ohio; no candidate in history—Republican or Democrat—has ever lost the election after winning both States … Republican candidates for the U.S. Senate and U.S. House, down to Republican candidates [at] the state and local level, all out-performed expectations and won in much larger numbers than predicted, yet the candidate for president at the top of the ticket who provided those coattails did not himself get over his finish line in first place. 

In other words, Trump should have won, and therefore there must have been some fraud when he did not win. Numerous statistical analyses of voting data right after the election, and later looks at actual voter files, rebutted this conjecture. They showed that Trump lost even though many other GOP candidates won, largely because a sufficient number of Republican voters simply chose to vote straight tickets except for Trump—voting instead for Biden, for third-party candidates, or for nobody. Considering that polls showed that Trump was an unpopular nominee, this result seems unsurprising.

The second, separate claim was that courts and officials in the swing states had applied the state’s election statutes in ways that the legislature might not have approved. According to Eastman’s filing, “To the extent these drastic and fraud-inducing changes in state election law were done without the consent of the state legislature, the federal constitution was violated.”

This brings us to the core of the case against Eastman, as laid out in the January 6th Committee report, best expressed in the two famous “coup” memos he wrote in late 2020 and early 2021 outlining a scheme by which Vice President Mike Pence could reject electoral votes from states that the Trump campaign believed Trump should have carried and thus somehow must have carried. As a legal scholar, I have spent considerable time with those memos; they are fascinating documents, and they reveal the Trump theory to have been so flimsy that it is difficult to believe that any serious person took them seriously. 

It’s important to note what the Eastman theory does not say. Although in public (as in the “Save America” speech) Eastman repeated a number of the wildest charges that fraudulent voting machines or fake ballots switched the result in these states, his memos don’t say that; indeed, the second, six-page memo says, “Quite apart from outright fraud (both traditional ballot stuffing, and electronic manipulation of voting tabulation machines), important state election laws were altered or dispensed with altogether in key swing states and/or cities and counties.” 

“Quite apart” does a lot of work here. Read with a professorial eye, the claim is not a fraudulent result exactly—it’s that the states did not follow their own laws to Trump’s satisfaction. It stops just short of claiming that enough votes were somehow switched to change the result. Despite his press statements, I can’t find anywhere in the record where Eastman formally alleged that these actions by state officials switched enough votes to change the result. In our interview, he said, “I never said that there wasn’t enough fraud to have affected the election, because the amount of fraud is very hard to prove after the fact, after the envelopes were separated from the ballots.” 

In fact, Eastman told me, he does believe that the election was stolen, in part because of the $400 million grant given by Facebook founder Mark Zuckerberg to a pair of nonprofits funding improvements to local election boards. “You look at where that money went, and you look at the turnout bump up there—that seems pretty clear to me.” The second piece of evidence he cited was supposed anomalies in the vote totals in 18 “bellwether” counties around the country—including one in Idaho, a state Trump carried by 30 points. When I asked why any Democrat would bother to rig votes in this reddest of red states, he explained that “there’s a major effort to get rid of the Electoral College, and the way they do that is focus on the national popular vote … and so there was incentive to pump up numbers elsewhere too.”

I will simply say that the validity of this inference is not entirely clear to me. 

But the other part of the theory didn’t depend on fraud. The second problem was, apparently, simply that the state elections were “unlawful.” The core of the allegation, both in the “coup” memos and in the Supreme Court motion, was not that ballot boxes were stuffed with votes by dead or nonexistent voters or that lawful ballots weren’t counted; it was that the state courts and state election boards made decisions about details of the voting—hours in which polling places were open, for example, the number and location of drop boxes, or the formalities necessary for submitting a mail vote—that differed in some way from the way the Trump campaign read the wording of the statutes. In the Eastman theory, only the state legislatures are empowered to make any decisions about voting, regardless of what state constitutions say or what authority state courts and officials have under those state statutes. “My view … is that when the election is conducted not according to the manner that it was directed by the legislature, it’s an invalid election,” he told me. 

In other words, it didn’t matter whether Trump had obtained more votes than Biden in that swing state; the mere presence of these “unlawful” votes rendered the entire election “unlawful” and thus voidable by the state legislature. Eastman stands by this theory today. He quotes dictum from some court decisions and scholarly speculation; but the theory is a rickety construct in which several of the major supporting girders are either weak or nonexistent. 

It is the equivalent of a claim that the Kansas City Chiefs didn’t actually win Super Bowl LVII because a review of video after the game showed that one of their players lined up a few inches offsides during the crucial field goal, and that the Philadelphia Eagles will be world champions if they show up in the dead of night and send a running back with the ball across the goal line unopposed. Or maybe it’s even worse than that—because at least there already is a rule against being offsides. 

The claim that only state legislatures can interpret or apply state law governing presidential elections is not the law as it exists today. It’s a very controversial idea, one that has been ridiculed by the majority of scholars who study the Constitution’s electoral provisions. There’s certainly no case that says that, exactly—only some snippets of old cases that Eastman and other contemporary conservatives have fashioned into the “independent state legislature” doctrine. That far-right claim is now pending before the newly conservative Supreme Court—but today, as in 2020, the doctrine has not been recognized as a constitutional rule by any court. And even if the independent legislature theory is eventually adopted by a conservative court, there’s also no precedent providing that the mere fact that a state official deviated from a legislative rule invalidates an accurately counted election. 

The final aspect of Eastman’s theory was that, when Congress met on January 6 to count the electoral votes and declare the winner, Pence would have the unilateral power to reject the slates of electors chosen in the actual swing state elections, and “remand” the vote to the state legislatures for some kind of legislatively contrived “recount”—or a simple legislative resolution designating the Trump electors as the “official” ones. 

Never mind what I think of this—let’s hear what one prominent constitutional scholar wrote about Eastman’s claim as recently as October 2020: 

I don’t agree with this … The Twelfth Amendment only says that the President of the Senate opens the ballots in the joint session and then, in the passive voice, that the votes shall then be counted. [The Electoral Count Act] says merely that he is the presiding officer, and then it spells out specific procedures, presumptions, and default rules for which slates will be counted. Nowhere does it suggest that the President of the Senate gets to make the determination on his own.

The scholar who flatly refuted the John Eastman theory was, in fact, John Eastman. The January 6th Committee report documents correspondence in October 2020 between Eastman and a Trump supporter named Bruce Colbert. The refutation I quoted above is from that correspondence—in which Eastman responded to Colbert’s suggestion that Pence had that power. I asked Eastman about the charge that he gave phony advice to his clients, and he responded that when he wrote the memo to Colbert, he was still “treating the Electoral Count Act”—the federal statute that provides congressional procedures for the electoral certification—“as controlling, because I’d never had the need to do the deep dive in assessing whether in fact there were unconstitutional aspects of the Electoral Account Act.” By December, he said, he’d done the research and he had “come to the conclusion that [the act is] not constitutionally valid.”

In our interview, Eastman was very careful to state that though his “coup” memos raised the possibility that Pence could simply reject enough Biden electors to make Trump the winner on the spot, he himself did not and does not endorse that idea. He does, however, stand by the idea that Pence could have declared a pause in the certification process so the state legislatures, which were beginning to assemble for their yearly sessions, could, in his words, “delay at the request of the more than a hundred state legislators who had written [to Eastman] and said, ‘Our elections were conducted illegally and opened the door for enough fraud to have affected the outcome. We want to look at this now that we’re back in session. Give us a week or 10 days.’ ” 

It has to be said that the “Pence delays” scenario has even less law backing it than the “Pence rejects electors” scenario does. The Electoral Count Act specifies that the votes shall be counted on January 6. Nowhere does it give the vice president the authority to delay the count. Eastman deals with that uncomfortable fact by asserting in both “coup memos” that the act itself is “likely unconstitutional.” Outside a few law review articles, there’s no case law to support that idea. So, in essence, Eastman’s argument is that both the states and the federal government have been running unconstitutional elections since 1888. 

Here’s the final and in some ways most damning fact about Eastman’s conduct before January 6: He advised Pence to do things that on their face seemed clearly illegal—but to try to do them in a way that would prevent any court from stepping in. In his first memo discussing a “vice president blocks electors” scenario, he wrote, “The main thing here is that Pence should do this without asking for permission—either from a vote of the joint session or from the Court.” This strategy is in line with what Trump proposed to two officials of the U.S. Justice Department on December 27 when they protested that the department had not found evidence of fraud to support the president’s claims: “Just say the election was corrupt and leave the rest to me and the Republican congressmen.”

In other words, it looks as if Trump and Eastman were looking for an excuse to block or paralyze the certification and allow Trump to proclaim that the election was, in some way, a failure that could be rectified by Republican legislatures or Republican members of the House. “Unlawful” votes that were not enough to change the result? Well, they were still “unlawful” so we get a mulligan. Outlandish vice presidential power theory? Well, we can get away with it as long as no court has time to step in. 

For lawyers, this is a bit like advising a client, “If you want to grab merchandise from the shelves without paying, all you need to do is make sure there are no security guards between you and the store entrance.” Considering that in the Eastman case the advice deals with the heart of the U.S. Constitution, the Pence scenario seems deeply questionable for a scholar to concoct, ethically shaky for a lawyer to recommend, and legally dangerous for a citizen to act on.

It is chilling to think that if even one of the guardrails had failed—if even one state legislature had met in special session, for example, and caved to Trump and sent an “official” slate of fake electors, or declared their state’s popular vote invalid, or if Pence had agreed to suggest that there was doubt about the swing state vote totals or had let himself be evacuated from the Capitol and not permitted to return in time—it could very easily have worked.

But it failed, and on January 11, 2021, Eastman sent an email to Rudy Giuliani asking to be included on the “pardon list.” At some point between October 17 and January 6, Eastman crossed all kinds of lines, and he apparently knew he had crossed them. Startlingly, he has not even tried to scramble back. Having offered the bogus theory that the legislatures could block Biden’s election before January 6, he has suggested to some legislators that their state legislatures, even now, halfway through Biden’s term, could somehow “decertify” their electors and perhaps even remove Biden from office. I asked him about this, and he eagerly tackled the theory. He granted that the Constitution provides only two ways to remove a president: impeachment or removal under the Twenty-fifth Amendment. But, he said, the Constitution doesn’t say there can’t be a third way. If a court finds that a presidential election was fraudulent, he suggested, “you fall back on basic common law principle” in which “proven fraud … vitiates [voids] the act taken”—presumably by evicting Biden from the White House. This theory leaves behind the entire world of precedent and the Constitution, and boldly goes where no lawyer, to my knowledge, has ever gone before.

Eastman hastened to add that he had advised the legislators that as a matter of politics, “it’s not gonna happen.”

Reasonable people can disagree on some points of the ability of state legislatures to control the selection of electors during the time before a president is chosen. But once we get into the idea that partisan legislators can even try to jam the defeated candidate into office at midterm, we have booked business-class reservations on the last train to Crazy Town. 

How did he get here? Perhaps, after all the pro–Trump administration speeches and Fox News spots pushing far-right talking points, Eastman in the fall of 2020 was now the dog who had caught the car—or Chauncey Gardiner in Jerzy Kosinski’s Being There, the random bystander who blunders into a position of influence because listeners mistake his musings for wisdom. At any rate, having carved out extreme positions, Eastman now found himself in the orbit of a president who expected him to make good on them—and who could, if reelected, not only make Eastman’s far-right policy wishes come true but also reward Eastman himself in very concrete ways. He might have had an occasional thought about his own possible role in a Trump second term—as an official in the White House, the Justice Department, or even … the Supreme Court?

Besides this, the prospect of jimmying the Electoral College offered Eastman a chance to pursue a legal white whale that he had been chasing for at least 20 years—the role of state legislatures in the Electoral College. And that takes us back to the Florida 2000 electoral standoff.

Immediately after the 2000 election produced an agonizingly close result in Florida, Republican staff and legislators in Tallahassee began discussing the possibility of having the Republican-dominated legislature step in, proclaim a winner, and select a set of Bush electors. When the state senate convened a hearing, two eminent law professors—Bruce Ackerman of Yale and David Strauss of the University of Chicago—testified that the legislature’s constitutional power to “direct” the “manner” by which electors are to be selected did not include the power to revoke an election that had already been conducted. The committee, which wanted to do exactly that, quickly sought an expert who could explain the Electoral Count Act. Eastman tells this part of the story with Homeric gusto: “What happened is they had a four-hour hearing”—on the legislature’s supposed power to designate its own electors—“and nobody had any idea what they were talking about.” Committee staffers realized that they needed an expert on the proper procedures, and there was none available. “Nobody,” Eastman said, “had looked at the electoral count or the Twelfth Amendment since 1887.” Someone suggested the name of a junior professor at Chapman Law School: John Eastman. 

According to Eastman, a Republican staffer called him and asked whether he could opine on the issue. “I said, ‘I don’t know anything about it, but I do know a lot about the structural Constitution. When do you need me to testify?’ And he said, ‘Tomorrow.’ And I said, ‘Well, get me a first-class ticket.’ ” He and half a dozen Chapman law students spent the next 12 hours reading microfiche records of congressional debates. “They pulled me together about four binders of microfiche stuff and I read it on the plane and I go testify the next morning,” he told me. 

Eastman, who had been a professor for less than two years, was suddenly at the center of history—and empowered to talk back to superstar profs like Ackerman and Strauss. The plan of the legislature proclaiming victory for Bush electors did not come to fruition, but only because the Supreme Court stepped in and halted the state’s recount process.

Nonetheless, the experience seems to have left an indelible impression on Eastman. By 2022, his version of the “independent legislature” theory had become such a rococo construct that it’s not hard to imagine that it had been growing in his mind since the near rendezvous with history in 2000. By 2020, the entire electoral process—as set out in both the Constitution and the Electoral Count Act—had become, in Eastman’s analysis at least, nothing more than a collection of ambiguities, unresolved paradoxes, and open constitutional questions. 

Eastman’s advice to Trump and Pence seems to flow directly out of his experience in Florida. But that advice went considerably beyond what the Florida legislature was prepared to do. In fact a lot of Eastman’s 2020 plan depended on essentially defying parts of the Electoral Count Act as unconstitutional, and allowing the vice president to act in an unprecedented way in the electoral count—without any serious court precedent to back this up. 

Eastman, however, says there is “scholarship” to back up both contentions, and it is an “open question.” He frequently cites a snippet from an 1892 Supreme Court case, McPherson v. Blacker, in which the Court dismissed a challenge to a system of popular vote by districts rather than statewide. Eastman relies on this line: “There is no doubt of the right of the legislature to resume the power [to direct the manner of selecting electors] at any time.” 

Eastman claims the line means that the legislature could provide for a popular election, then revoke it after Election Day because it suspects skullduggery at the polls. That, however, wasn’t the issue in McPherson—nor is that part of the Court’s actual reasoning in the case. In fact, it is a quotation, simply noted by the Court, from a Senate report for a bill considered in 1874—a bill that did not pass.

Eastman’s other argument is that an “invalid” election is void—and thus that the state has, in the language of the Electoral Count Act, “failed to make a choice,” meaning that the legislature can make a new choice. The problem with this argument is summed up in the old anecdote about Abraham Lincoln, who asked an aide, “How many legs does a cow have if you call a tail a leg?” When the aide answered, “Five,” Lincoln responded, “No, four—because calling a tail a leg doesn’t make it a leg.” The people of the 2020 swing states did not “fail” to make a choice; they made one that the Trump campaign did not like and wanted to revoke even if accurate. 

To me, the reasoning during those preelection weeks in 2020—building castles of inference on snippets of tortured text and scraps of statutes—bears the firm imprint of Eastman’s friend and mentor Clarence Thomas. Almost since his earliest days on the Supreme Court, Thomas has specialized in separate opinions (separate, because no other justices, liberal or conservative, would join them) in dozens of cases contending that the Court should simply sweep aside decades of established precedent and impose his individual view on the nation. For most of Thomas’s three decades on the Court, his colleagues have simply ignored these opinions. It may be that, after the Trump administration’s annexation of the Court, their hour has come round at last; but neither his views, nor his method of reasoning, is part of the law in 2023.

Beyond that, I find myself wondering whether the 2020 imbroglio was the downstream result of Florida 2000. The Florida battle left an indelible impression on the entire Republican Party and the conservative movement. Though history has so far spoken in restrained terms about what happened there, the brutal fact is that one American political party hijacked the electoral process, prevented an honest count of votes, assumed state power, and plunged the nation into a destructive war from which it has not yet fully recovered. It’s possible that, as some historians claim, Bush would have won an honest recount in Florida, but it is undeniable that he was willing to accept the state’s electoral votes without one. 

Florida 2000 marks a turning point—perhaps the turning point—in the history of American democracy. The Republican Party got away with muscling its way into power, and the effect of that success is powerful even today. Consider the following:

On November 22, 2000, one week before Eastman’s testimony to the legislators in Tallahassee, a mob of Republican staffers, under the leadership of party officials and activists, swarmed the room where Miami-Dade election officials were attempting to complete a recount so the state’s vote could be certified by December 12, the federal statutory “safe harbor” deadline. Party cadres, under the direction of a member of the U.S. House, swarmed the room, shouting, “Shut it down!” After a melee in which several people were trampled, punched, or kicked, the mob managed to intimidate the election board into suspending the count.

A generation of Republican legal activists, from future Solicitor General Theodore Olson to future Senator Ted Cruz to future Supreme Court Justices John Roberts and Brett Kavanaugh, went to Florida and fought in the trenches in the battle shaped by that lawless action—a battle that paid little heed to legality and much attention to brute political force.

As a recount ordered by the Florida Supreme Court proceeded, Eastman and members of the Republican majority in the state legislature prepared to set aside the results of that count and designate a slate of electors who would guarantee Bush’s election, regardless of the result of any order from the Florida Supreme Court.

Finally, the U.S. Supreme Court stepped in and simply ordered the recount halted on the flimsy ground that recounting the vote somehow violated George W. Bush’s rights under the equal protection clause—and that the Florida Supreme Court, the supreme authority on Florida law, had read that law wrong. This decision made rubbish of all the pieties that the conservative majority had spouted about federalism; indeed, it hardly pretended to be law. The only direct defense of it anyone on the Court has ever offered was Justice Scalia’s rhetorical upraised middle finger: “Oh, get over it!” 

Has either the Supreme Court or the Republican Party ever really gotten “over it”? Florida 2000 was in effect the Big Bang for the authoritarian streak of the GOP. It hardly seems like a coincidence that Florida in 2023 has advanced much farther down the road to outright, explicit fascism than any other state. Governor Ron DeSantis and those around him had a detailed lesson in how a party can step over the lines of decency and law—and reap rich rewards for doing so. 

The conservative majority on the Court in 2000 won what they wanted: continued Republican dominance. Both John Roberts and Samuel Alito know they would not be on the Court if a full recount had swung the election to Gore. And the conservative majority made the delightful discovery that, after this most consequential and lawless power grab, the Court suffered only the most minor impairment to its prestige. 

The riot in November 2000 was at least in part organized by the Republican operative Roger Stone—the same Roger Stone who, convicted of witness tampering and then pardoned by Donald Trump, strolled, jaunty in Homburg hat and supervillain shades and surrounded by a bodyguard of far-right paramilitary thugs, into the January 6 “Stop the Steal” rally that preceded the attack on the Capitol. It’s not hard to imagine that Stone and other veterans of the Miami-Dade demonstration (and, for that matter, Trump himself) wanted to repeat that performance by shutting down another vote count, this one not in a local election but in a proceeding at the heart of the Constitution, the vote of the Electoral College. 

John Eastman was there in 2000, and again in 2021, spouting constitutional theories even flimsier than the recounting-is-unfair-to-Bush notion, and bidding doubters not to worry about courts or law. 

The Trump years served as the modern conservative movement’s version of the myth told in the Christian gospels, in which Satan carries Jesus onto a high mountain, below which are spread all the kingdoms of the world, and says, “All these things will I give thee, if thou wilt fall down and worship me.”

In the gospel myth, Christ passes the test. But how many of us mortals would? Some Republicans seem to have made it—Georgia Secretary of State Brad Raffensperger, Arizona House Speaker Rusty Bowers—but many did not. Consider William Barr, formerly a respected figure who reduced himself to vile toadyism and outright deceit to defend Trump from legal danger; consider Lindsey Graham, formerly, like his late friend John McCain, a figure with a reputation for independence who now crawls in Trump’s wake croaking “my precious”; consider Rudy Giuliani, once presidential timber but last seen by history as Pagliacci, hair dye dripping as he stumbled through a parody of legal argument on behalf of Trump. 

No one goes into politics because they glory in seeing neutral processes play out and really don’t care who wins the game as long as it is fair. All of us—from minor players to protagonists, from politicians to professors—have devout wishes for what we believe the country can become; many of us see those who oppose us not as colleagues or friends but as enemies. Today’s right has convinced itself that the tepid progressivism on offer from the Democratic Party is actually aimed at, and capable of, leading us all to a godless, murderous Gehenna like Pol Pot’s Cambodia. Michael Anton, a colleague of Eastman’s at the Claremont Institute, wrote a famous article in 2016 calling that year’s vote the “Flight 93 election,” because the election of Hillary Clinton would be so disastrous that conservatives, like the heroic passengers who crashed one of the hijacked planes on 9/11 rather than allow it to be flown into a target, should wreck the entire political system if necessary to block her from the White House. For many conservatives, hating and thwarting liberals has become the sole imperative for the salvation of the nation and the souls within it. 

To people with this level of hatred, the tempter whispers that their deepest wishes can come true if they will just give up this nonsense about “legality,” “fairness,” and “democracy.” You were never really serious about that, were you? he murmurs. Step over this line, and you will sit at the right hand of power and the evildoers will depart into everlasting fire. 

Donald Trump had the unique ability to offer these conservatives their heart’s desire. The serpent tempted them, and they fell. 

Is that what happened to my friend John Eastman? I can’t say; I am no examiner of hearts. But if it is, God help him. 

And God help us all.  

The post The Dangerous Journey of John Eastman appeared first on Washington Monthly.

On January 6, soon after being sworn in to a second term as Florida governor, Ron DeSantis appointed six new conservative members to the board of New College, a tiny public liberal arts institution that few Americans have heard of. The move drew national attention—in part because DeSantis, a likely 2024 presidential candidate, had made taking on “wokeism” in his state’s education system a defining feature of his first term, but also because of the audacity of his plan for New College. 

The school’s progressive culture, the governor charged, is failing to give its students the grounding they need to become productive workers and citizens. He therefore tasked the board with remaking it in the image of Hillsdale College, a conservative Christian institution in Michigan focused on the “great books.” “The core curriculum must be grounded in actual history, the actual philosophy that has shaped Western civilization,” DeSantis said. “We don’t want students to go through, at taxpayer expense, and graduate with a degree in zombie studies.”

Politically, DeSantis chose his target well. Founded in 1960 as a private college and later merged into the state university system, New College is famous for its alternative learning style and left-leaning population, with a high percentage of LGBTQ students. Professors give written evaluations rather than grades, and students follow a “contract” system in which, each semester, they agree to pass a certain number—not necessarily all—of their classes. Courses on offer include “Race and Ethnicity in Global Perspective,” with readings from the social justice scholar Ibram X. Kendi, and “Going Viral: Making Video Art for the Internet.” (No textbook required.) Located on Sarasota Bay just down the road from Siesta Key Beach, it is affectionately called by its students “Barefoot U.”

New College, however, is an odd choice for DeSantis’s ire in one crucial respect: On most measures of actual outcomes, the school performs at a remarkably high level. Indeed, on the Washington Monthly’s latest college rankings, which rate colleges on measures of upward mobility, research, and service, it comes in 41st out of 203 liberal arts colleges in America. On U.S. News’s more conventional list, it ranks 76th. Indeed, New College outperforms other Florida public institutions of higher learning and most of the conservative colleges and universities that DeSantis’s trustees point to as models for how they want to remake the school. 

DeSantis and his appointees levy seven specific charges against New College. 

First, they say, the curriculum is lightweight—“zombie studies,” as the governor put it. But by their own standards of what’s serious, the subjects New College teaches and the texts it uses are no less substantive than most other liberal arts colleges, and in many ways more so. According to an in-depth article in The Bulwark, a conservative Never Trump publication, New College students study the satires of Horace in Latin, Homer’s Iliad in ancient Greek, Voltaire’s Candide, and other mainstays of the Western canon from the Medieval Age on through the Enlightenment. The more progressive classes focused on race and identity are academically rigorous. “An art class on the history of museums includes modern-day controversies on ‘decolonialization’ and diversity but also provides solid coverage of historical material,” The Bulwark observed.

Of course, it’s possible that New College students are too busy playing beach volleyball to absorb any of this weighty curriculum. But the Washington Monthly’s ranking metrics don’t support that conjecture. New College graduates go on to earn PhDs at a higher rate than many of the nation’s more prestigious liberal arts colleges, such as Smith (21st on the Monthly’s rankings) and Bowdoin (28th), and considerably higher than conservative Claremont McKenna College (82nd). As Republican state Senator Joe Gruters approvingly wrote in an op-ed in 2020, “New College has become a top producer of students who earn prestigious fellowships. Their students have been awarded 74 Fulbright Fellowships over the past 15 years. That is more scholars per capita than Harvard and Yale.”

The second criticism DeSantis and company make is that New College is a liberal echo chamber that produces unproductive graduates lacking the grounding to contribute as citizens. One of the governor’s new trustees, the conservative activist and critical race theory opponent Christopher Rufo, says he plans to hire faculty who will teach “civic virtue” and “American principles”—implying that the school isn’t promoting those qualities now. 

But as the Monthly’s college rankings show, New College is already doing just that. New College ranked 19th out of 203 liberal arts colleges in America in the percentage of its students who go on to serve in the Peace Corps and in its support for students who serve in AmeriCorps. That’s considerably higher than Claremont McKenna, which comes in at 81st place on that measure. (Hillsdale College, the institution DeSantis holds up as his primary model, takes no federal student aid funding and therefore, conveniently, doesn’t have to publicly disclose its outcome data.) New College is the middle of the pack in the share of its students participating in ROTC—on par with a number of conservative colleges, like Liberty University and Dallas Baptist University. It devotes 13 percent of its work study slots to community service jobs, better than most colleges. It earns the highest possible score on the Monthly’s measure of whether a college encourages students to vote, with a student voter registration rate of 92.6 percent in 2020. The Monthly’s data shows that the vast majority of New College students are already active participants in American democracy, speaking to the school’s success in producing good citizens. 

The third, related grievance is that New College is one of those left-leaning campuses that are “hostile to academic freedom,” as DeSantis put it, and “impose ideological conformity to try to provoke political activism.” It’s true that social justice ideals, when misused, can lead to illiberal decision-making by college administrators. We saw this in the recent firing of an adjunct professor at Hamline University in Saint Paul, Minnesota, who provoked anger for tactfully showing a historically significant painting of the Prophet Muhammad in an art history class. Such silencing, however, is not unknown at the handful of conservative colleges in America—such as Liberty University, where a prominent anti-Trump Christian author was escorted off campus by university police. 

In any event, New College has not had any such controversies. In fact, in 2010, its administration resisted pressure from students and alumni to kick out R. Derek Black, an undergraduate who is the godson of the Ku Klux Klan leader David Duke and at the time an avowed white nationalist.

Ironically, the DeSantis administration’s heavy-handedness could well undermine the school administration’s evident dedication to freedom of thought. During a tense January 25 meeting with students and faculty, Rufo and fellow new trustee Jason “Eddie” Speir—the cofounder of a private Christian charter school—implied that state funding would be tied to the school’s compliance with the trustees’ ideological goals. “When we show we are moving in that direction and understand the assignment … I think the coffers will open,” Speir said. 

The fourth criticism voiced by DeSantis and the trustees is that too few New College students graduate. At 64 percent, the school’s eight-year graduation rate certainly has room to improve. But that rate is roughly average for the state and well ahead of such schools as Florida State College at Jacksonville (39 percent) and Florida Polytechnic University, the school closest to New College’s size in the state university system, which had a graduation rate of 56 percent. That raises the obvious question of why the DeSantis administration singled out New College for draconian restructuring over poorer-performing state schools.

The fifth critique is that New College graduates have low employment rates and incomes in the year after graduation. But the narrow time window they cite does not give the full picture. The Monthly’s “social mobility” ranking factors in actual versus predicted earnings of students 10 years after college entry, capturing graduates as well as dropouts over a longer and more representative time frame. That metric shows that New College students earn $43,994 10 years out—toward the low end of peer liberal arts colleges but higher than the University of West Florida ($43,063) and conservative Bob Jones University ($40,853) and Liberty University ($42,395). 

The sixth charge that DeSantis and company muster is that New College has not met its own enrollment benchmarks. That is true: In 2016, the school set an enrollment goal of 1,200 students by 2024, and it’s now at only 700, having fallen from a high of about 850 in 2019. But New College’s enrollment struggles are typical of small, nonselective liberal arts colleges around the country, 60 of which have closed their doors in the past five years. And there is solid evidence that New College was turning the situation around before DeSantis intervened: The school’s 2022 freshman class was the largest in six years—a 30 percent increase over fall 2021. 

The seventh and final argument the DeSantis administration makes is that New College’s admission standards are too low. The school admits about 75 percent of applicants, Rufo chided New College students and professors in January: “Most liberal arts colleges try to keep that number under 20 percent. You accept more or less anyone who applies.” 

This criticism is rich, to say the least, coming from conservatives who claim to be champions of the working class and scourges of upper-middle-class privilege. With an annual $7,194 net price of attendance for students from families below the $75,000 income threshold, New College is the ninth most affordable liberal arts college in America. As such, it enrolled 12 percent more Pell Grant recipients in 2022 than would have been predicted after taking into account student test scores and family income levels in Florida. 

The school’s largely open admissions criteria is a key reason why it scores higher on the Washington Monthly’s rankings than on U.S. News’s, which rewards colleges for their exclusivity. Indeed, what is most extraordinary about New College is that it achieves outcomes comparable to those of some of the nation’s most elite colleges—ones that play the U.S. News selectivity game—with students who are far more representative of American society as a whole. 

Beyond these metrics, New College also serves the public good as a welcoming educational institution for LGBTQ students in a state where they often face violence and discrimination. According to a 2021 report by the office of the Florida attorney general, 28 percent of hate crimes in the state were motivated by anti-LGBTQ prejudice. And in 2022, researchers found that online hate against the LGBTQ community rose dramatically following DeSantis’s signing of the “Don’t Say Gay” law.

New College is a public institution, funded by taxpayer dollars. Ron DeSantis won reelection in a landslide on an anti-woke platform, and can claim a mandate to change Florida’s institutions, at least until the public tells him differently. 

The problem is that he is restructuring a college that is already performing at a fairly high level based on the measures that students and parents care most about, like whether the college offers degrees at a reasonable price that earn graduates decent salaries, and whether it encourages them to be good, active citizens. There is certainly room for improvement at New College on these measures, and maybe DeSantis and his appointees will boost its performance. But there is a lot more room to make the college worse, and plenty of reason to think that’s what the DeSantis administration will accomplish.

The post Why Does Ron DeSantis Want to “Fix” a High-Ranking College? appeared first on Washington Monthly.

Local sovereignty is integral to Texas’s frontier, “Remember the Alamo” self-image. But Texas Governor Greg Abbott, a spirited critic of federal overreach, has gone to war against the self-governance of Texas localities. This is not “the United States of Municipalities,” Abbott proclaimed in 2017. Over his two-plus terms, he and his GOP-controlled legislature have overridden the ability of local governments in Texas to, among other things, mandate paid sick leave, require COVID-19 vaccines for workers, expand voting options, and regulate oil and gas drilling within their own borders. 

Other Republican governors have been doing the same. Georgia’s Brian Kemp signed legislation in 2021 criminalizing the provision of food and water to voters waiting in line at local polling places. Florida’s Ron DeSantis has not only dictated what books local school libraries can and cannot stock but also signed a 2021 law making it illegal for municipalities to mandate electric charging stations at local gas stations.

The penchant of state-level Republicans for squashing municipal policies they don’t like has been made easier by the way the federal government has traditionally funded programs to help localities: by routing the money through the states. When Hurricane Harvey struck Houston in 2017, city lawmakers expected the state to pass along the more than $1 billion Congress had appropriated for emergency aid. Instead, they received nothing: The entire package was doled out to largely white, inland communities less affected by the storm. Houston Mayor Sylvester Turner accused Abbott of a “money grab.” The U.S. Department of Housing and Urban Development later found that the stunt put Texas in violation of the Civil Rights Act. “Let me just tell you, that remains a sore spot,” Turner recently told me. His ire was further piqued when the Texas Department of Transportation announced in February 2021 that it would expand a highway that cuts through the city without changes requested by the mayor and other Houston lawmakers. The planned expansion would displace nearly 1,100 homes, 340 businesses, five churches, and two schools.

In the 21st century, the arrival of an educated, multiracial workforce in places like Houston has collided with the disproportionate power Republicans have accrued at the state level to create a novel political phenomenon: Increasingly blue metro areas are finding themselves up against increasingly red state governments—and losing. If demographics are destiny, governors facing an in-migration pattern that worryingly resembles the long-term marginalization of their conservative politics are exploiting the legal and fiscal preeminence states have over localities in new and extreme ways. “Don’t California My Texas” has become Abbott’s trademarked mantra. In February, Georgia Representative Marjorie Taylor Greene captured the mood when she suggested that red states should block new arrivals from blue states from voting for a period of five years. Governors like Abbott and DeSantis, with the backing of a conservative Supreme Court supermajority determined to buttress the power of states, are steamrolling the will of cities to govern in ways their voters think best.

But that dynamic is not going unchallenged at the national level. One of the least noticed but most profound changes in Washington over the past two years has been a concerted effort by Joe Biden’s administration and Democrats in Congress to liberate localities from the overweening power of state governments—a change the Washington Monthly called for in January 2021. (See “How Biden Can Use Federal Power to Liberate Localities,” by Daniel Block.) 

This has happened in innumerable ways, large and small. For instance, in March 2021, Biden’s Department of Transportation told Texas to halt the Houston highway project until a federal investigation of civil rights and environmental justice concerns could be completed. (The project resumed after two years and will now reflect many of the changes Turner requested.) More significantly, the administration has worked to restructure spending bills in ways that shift the balance of power from state to local governments. For example, the COVID relief package Donald Trump signed in 2020, the CARES Act, sent almost four times as many federal dollars to state governments ($110 billion) as to cities ($29 billion), and none to municipalities with fewer than 500,000 residents. Those smaller communities had to apply to their state governments for the funds, and nearly 30 percent got nothing. By contrast, under the COVID relief bill Biden signed in March 2021, the American Rescue Plan Act, Washington sent $130 billion directly to municipalities of all sizes, more than half as much as the $220 billion states received. In an even greater break from past practice, the Bipartisan Infrastructure Law, which Biden signed in November 2021, appropriated $196 billion—a third of all surface transportation spending in the bill—for competitive grants that municipalities can apply for directly, without having to seek permission from their state governments. Competitive spending in previous infrastructure bills was negligible. 

Spending priorities in Washington seldom change so dramatically and quickly. Yet the mainstream press has almost completely missed this shift. In part, that’s because the administration itself doesn’t talk much about it, and when it does, it is in resolutely nonpartisan terms. “Having been a mayor, I noticed [that] however well intentioned folks in the state capital were, they didn’t always see things quite the way they looked on the ground,” Pete Buttigieg, the ever-careful transportation secretary, told the Washington Monthly.

Giving localities more freedom to deploy federal dollars as they see fit isn’t, in fact, inherently partisan. It only seems so in the context of GOP-controlled states trying to do the opposite. Moreover, the anger liberal cities feel toward their repressive Republican state governments is more than matched by the fury conservative towns in blue states feel toward the policies and spending priorities of their Democratically controlled state governments—to the point where, in red regions of states like Colorado and Oregon, there is open talk of secession. That’s why reasonable leaders in both parties who worry about American democracy going off the rails should want the pro-locality shift in federal policy Biden has started not only to continue, but to expand. 

In January of this year, Joe Biden spoke before a group of mayors in the East Room of the White House and did a little compare-and-contrast bragging. “With the CARES Act we passed under the previous administration,” he said, “you had to go to your legislatures for permission to get the money.” That, he said, ran counter to his longtime belief in how federal aid should be structured. “When I wrote the COPS bill years ago, you didn’t have to go to the legislature or your governor to determine—you could apply directly. 

“Well, that’s what we’re talking about,” he went on. “We made sure the American Rescue Plan empowered you directly—directly.” 

In truth, as a U.S. senator for 36 years, Biden voted for bills that funneled federal funds primarily through the states, with little directed to municipalities. And as president, he refused to veto a bill in Congress to overturn a Washington, D.C., city council measure to reduce mandatory minimum sentences in the District—a decision that might have been politically expedient but is hardly consistent with respect for local decision-making.

Still, Biden’s sympathy for local government leaders is long-standing and rooted in a little-known fact about his political career. The first public office Biden was elected to, in 1970 at the age of 27, was commissioner for New Castle County in northern Delaware. “I learned early on, if you’re in the county, you got to go through someone else to get help—you gotta go to your governor, you gotta go to your state legislator, you gotta go to the state senators,” he recalled at a conference for county officials in February. “We always did better when there was direct funding for the things that related to the county.” 

Then, as now, tensions existed between urban and rural interests over spending and other decisions. For instance, politicians representing cities wanted funding for projects like mass transit, whereas those from more rural areas wanted money spent on roads. But back in the 1970s—indeed, for most of U.S. history—disagreements between rural and urban interests weren’t necessarily partisan in nature. Rural lawmakers (depending on the state) were as likely to be Democrats as Republicans, and spending battles typically involved bipartisan dealmaking—for instance, urban Democrats aligning with suburban lawmakers, who were largely Republicans, to get money for metro-wide bus service. 

Only in the past 20 years, as the parties sorted more starkly geographically—with metro areas becoming overwhelmingly blue, and rural and exurban areas becoming overwhelmingly Republican—have the battles over the funding of local communities become reliably partisan and ideological. In 2011, for example, Wisconsin Governor Scott Walker, the Ron DeSantis of that era, signed legislation preempting the ability of local governments to mandate that private businesses in their jurisdictions offer paid sick leave, as Milwaukee had done. Soon after that, 15 more states passed similar statutes. In 2012, Barack Obama took 69 percent of the vote in cities with more than 500,000 residents while winning just 22 percent of total counties, the lowest share in history. Meanwhile, the Republican Party was methodically consolidating power over state governments: Between 2010 and 2013, the number of states with a Republican ruling trifecta jumped from nine to 25, their largest state lawmaking majority since the 1920s. Governors and attorneys general launched an endless barrage of lawsuits against Obama’s government. 

Defying federal rules and turning down funds became fashionable, and governors in Ohio, Wisconsin, Florida, and Louisiana rejected aid for building high-speed rail, despite the protestations of city dwellers. The Supreme Court faithfully served the interests of states in disputes with the federal government, striking down the Obamacare mandate to expand Medicaid in 2012. (More than a decade later, 11 states, Texas and Florida among them, have still not expanded Medicaid. In those two states and other holdouts, polls suggest that support for expansion has a strong majority.) 

With the election of Donald Trump in 2016, this revenge tale against cosmopolitan progressives reached a crescendo. The new president followed alarming threats against immigrants with an executive order to withhold federal funds from so-called sanctuary cities that declined to hold in jail inmates who would otherwise go free, pending checks on their immigration status by federal authorities. Courts ultimately blocked Trump’s order on the grounds that he didn’t have the statutory authority. Nevertheless, some Republican governors, including DeSantis, Abbott, and Arkansas’s Asa Hutchinson, signed legislation banning sanctuary city policies. 

When Biden took office, he signaled a new era with the appointment of three former mayors to his cabinet: Pete Buttigieg at the Department of Transportation, Marcia Fudge at the Department of Housing and Urban Development, and Marty Walsh at the Department of Labor.

His first major piece of legislation, the American Rescue Plan, was a life raft for cities and towns in financial free fall during the pandemic. States had not lost as much revenue as predicted, but localities were struggling. Of the 1.3 million jobs lost among state and local governments between February 2020 and March 2021, three-quarters were at the local level. The huge influx of cash helped localities avoid planned layoffs, backfill lost revenue, and fund vaccine outreach and distribution. The money helped Washington, D.C., offer free testing and vaccines across the city seven days a week, and Boston to set up a grocery delivery program for food stamp recipients. Houston received $607,769,139, most of which went to budget deficits; extra funds were put toward programs like an initiative to house 7,000 homeless Houstonians, which got a $35 million earmark. “Those dollars are getting out the door,” Mayor Turner told me. “That is an example of a successful design of how to distribute federal dollars.” 

Biden’s second major legislative achievement, the Bipartisan Infrastructure Law, is helping localities finance long-awaited projects starved for funds by the recalcitrance of their state governments. In Chattanooga, Tennessee, the 70-year-old Wilcox Bridge has deteriorated to the point that it can’t support heavy vehicles anymore, forcing fire trucks to take long detours to reach certain neighborhoods; city officials say a $25 million grant funding a renovation will drastically improve emergency response times. In Clearwater, Florida, the regional transit CEO Brad Miller told the Tampa Bay Times that he is “the fourth transit authority director over the past two decades to try to secure funding” for a new public transit center in the city’s downtown. With a $20 million BIL grant, the project can finally proceed. 

And in Houston, Biden’s infrastructure bill is funding a long-sought revamp of Telephone Road, one of the most heavily trafficked arteries of southeast Houston. Despite cutting through densely populated city neighborhoods, the six-lane thoroughfare is notoriously ill-accommodating of pedestrians and bikers. With BIL funds, Telephone Road will get a facelift: safer bike lanes, wider sidewalks that connect to transit hubs, and CCTV cameras. “It’s really exciting to see the Department of Transportation investing federal funds in projects that are going to advance pedestrian infrastructure, not just vehicular infrastructure,” Gabe Cazares, the director of LINK Houston, an organization that advocates for a more equitable transportation system in the city, told me. 

Biden’s other major legislative achievements also redound to the benefit of localities. Last August’s CHIPS Act gives local governments a seat at the table when it comes to permitting federally funded microchip manufacturing. The billions of dollars in tax incentives the Inflation Reduction Act, signed a week later, provides for renewable energy would not normally be available to tax-exempt entities like cities, but the bill includes a novel mechanism that allows municipalities to take advantage of these credits in the form of direct payments. 

For many local officials, Biden’s disposition toward localities stands in stark contrast with that of Republican governors. The difference is “night and day,” Wayne Messam, the Democratic mayor of Miramar, Florida, and the president of the state’s League of Mayors, told me. “DeSantis claims that Florida is the free state, but every time you turn around, he’s telling us what we cannot do,” said Messam, who is planning to apply for federal infrastructure grants to build EV charging stations in his city. “Yet you have a Biden administration that has worked hand in hand with mayors across this country … I just think that it’s just a difference between the two parties.”

The Biden administration, and Democrats generally, have been relatively quiet about how their biggest legislative wins of the past two years do so much to liberate localities from state GOP oppression. Why? A major reason is that, traditionally, Democrats have been deeply wary of local control. Indeed, for decades, the liberal agenda often involved passing regulations that constrained local decision-making in order to advance national goals—typically for good reason. In the 1960s, Democrats passed civil rights laws that overturned racist state and local voting and segregation laws. In the 1970s, they passed environmental laws that mandated restrictions on local zoning and land use. 

But this activist period of Democratic policy making inspired a backlash that Republicans exploited. In the early 1980s, Ronald Reagan spun the narrative that the progressive reform agenda and centralized spending programs of the decades prior had encroached on local autonomy. He swept into office promising “to put an end to the merry-go-round where our money becomes Washington’s money, to be spent by the states and cities exactly the way the federal bureaucrats tell us it has to be spent.” He soon replaced the federal bureaucracy’s multitude of narrow categorical grants with consolidated block grants that states could use as they wanted. His appeals to states’ rights helped enshrine Republicans as the party of local autonomy in the public imagination thereafter through the subtle conflation of these two distinct levels of government. Thanks to Reagan, it’s Democrats who are thought to imperiously prescribe policy from on high. 

But the Republican Party proved to be no friend of municipalities. Under Reagan, federal aid flowing directly to local governments without first passing through states declined from 12 percent to 4 percent of total municipal revenue, and it has never recovered. For a generation now, GOP governors and state legislators have been gleefully overriding local government initiatives, typically in the service of conservative culture war issues or corporate interests looking to minimize economic regulations. 

As a consequence, local governments, which have no independent powers under the U.S. Constitution, have for many years had no real champions in either party. This is true not just in terms of direct government programs, like infrastructure funding, but also in the way the federal government has chosen to structure markets. Over the past four decades, both parties have supported the deregulation of key industries, like finance and transportation, and refrained from enforcing anti-monopoly statutes. As a result, in cities and towns all over America, locally owned businesses—be they banks, retail stores, news outlets, or manufacturing firms—have been put out of business or gobbled up by large oligopolistic corporations. Meanwhile, smaller cities and towns have found themselves without reliable and affordable—or even any—airline and rail connectivity. In these and other ways, the federal government has contributed to the evisceration of local communities that sociologists like Robert Putnam have documented. 

The Biden administration, with its stepped-up antitrust enforcement and pro-localities spending legislation, has taken a welcome first step in changing that. But the administration has not articulated a vision of local empowerment that unifies these policies, perhaps assuming that it wouldn’t compute with liberals who associate the concept with “Don’t Tread on Me” libertarianism. Yet explaining and defending his empowerment of local communities could be both good politics for Biden and his party and good policy for the country. Contrasting his support for localities with state-level GOP hostility to them would be especially useful if the opponent Biden winds up facing in 2024 is Ron DeSantis, the Republican governor who most conspicuously flaunts his despotism over local communities. 

A pro-localities agenda, taken further, could allow Democrats to advance their goals in an era of GOP dominance at the state level. To get around the 11 states that are stonewalling expansion of Medicaid, Democrats could pursue legislation that allows local jurisdictions to opt into the federal program independent of their states. Municipalities have proved more willing partners for Democrats’ policy agenda than states, and routing the largest possible shares of future infrastructure, water, housing, and disaster relief funds directly to localities would help ensure that federal money is spent more judiciously.

Democrats may also be able to protect localities from state preemption laws through legislative means. As the Lehman College sociologist Nathan Newman has suggested, Democrats could push legislation that makes preemption a civil rights violation when it disproportionately impacts people of color. 

A pro-localities agenda could also be a way to lower the temperature on some of the country’s most divisive issues. While Democrats should fight hard to pass legislation enshrining Roe v. Wade as the law of the land, if that proves politically impossible they should consider offering a compromise bill that would allow individual municipalities to decide if abortion should be legal in their jurisdiction. In the unlikely event Republicans supported such a measure, the practical effect would be that women in red states that ban abortion and even abortion pills could more easily get to towns and cities in their states rather than having to travel hundreds of miles to seek reproductive health care in other states. 

Crucially, Democrats may find a receptive audience for a local-empowerment agenda outside their base. Polls show that local governments are the most trusted by conservatives and liberals alike. Republican governors’ attacks on big cities infuriate progressives, but their neglect of basics like clean drinking water, broadband access, and crumbling infrastructure also frustrates some voters and officials in red areas of those states. That’s why bipartisan groups of mayors in Ohio, Indiana, North Carolina, Wisconsin, and elsewhere across the country celebrated the infrastructure bill’s new investments in localities. “Mayors have been consistent over 10 years,” David Holt, the Republican mayor of Oklahoma City, told PBS. “Mayors have come to that same White House in the Obama administration, in the Trump administration, and now in the Biden administration, seeking virtually the same thing.” Finally, he said, they got it.  

The post How Biden Is Using Federal Power to Liberate Localities   appeared first on Washington Monthly.

 Most of us who follow government know what the line of succession is should a president die in office. We see it at every State of the Union address: On the dais, the president stands in front with the vice president and the speaker of the House seated behind. Cabinet members occupy seats closest to the rostrum in the House chamber, except for the one secretary designated to stay away in the unlikely event that the whole place blows up and somebody has to run the country. Senate leaders, including the president pro tempore, sit in the rows behind them.

But recent history tells us that an event that kills all or most of the line of succession is not far-fetched. It came frighteningly close on September 11, 2001, when three airplanes piloted by terrorists struck the World Trade Center in New York and the Pentagon. What if the fourth and possibly a fifth plane had hit their marks? Instead, the fourth plane, which was headed for Capitol Hill, was brought down by passengers in a field in Pennsylvania. A purported fifth plane aimed at the White House may have been thwarted when one of the terrorists was arrested. 

Almost 20 years later, the events of January 6, 2021, starkly reminded us again of our vulnerability. Those who attacked the Capitol that day came perilously close to being able to execute the vice president, the speaker, and Senate leaders. 

But don’t we have a plan to reconstitute the government quickly after almost any catastrophe? In fact, we don’t. The laws and constitutional framework now in place address some scenarios adequately, but not the most dire ones. 

The nightmare scenario is one that occurs, as the January 6 attack did, in the delicate period between Election Day and the inauguration. Imagine there’s been an ugly, contentious election that is very close, marred by occasional outbreaks of violence and threats against election workers. The outcome is being challenged in the courts. The incoming president and vice president are dead and the speaker of the House, next in line to the presidency, represents the party that narrowly lost. Both parties are determined to claim the White House. If this political tinderbox exploded in violence, potentially decapitating the national government, it would make January 6 look tame.

This sort of scenario has long alarmed serious scholars of government in both parties, perhaps none more so than Norm Ornstein and John Fortier. In 2020, they convinced the American Enterprise Institute, where they were both resident scholars, to reconvene a commission on the continuity of government as a follow-up to a similar commission they led at AEI and the Brookings Institution after 9/11. The new bipartisan 14-member Continuity of Government Commission, which began meeting in earnest in 2021, was co-chaired by Arthur B. Culvahouse, a White House counsel in the Reagan administration, and Donna Shalala, secretary of health and human services in the Clinton administration and a former member of Congress. Fortier served as executive director of both commissions and Ornstein as senior adviser. Almost nothing had been done by Congress since 2001, yet new threats continued to emerge—the anthrax mailings starting a week after 9/11 that killed five people and sickened congressional staff and members, attempted assassinations of House members of both parties, the coronavirus pandemic, and January 6. 

This renewed commission, on which I served, issued its recommendations on continuity of Congress in April 2022 and on presidential succession last December, to little fanfare. A House select committee held a hearing on congressional continuity and recommended establishing a joint select committee to study it, but it would take a constitutional amendment to change the requirement to fill House vacancies by election. Problems related to presidential succession aren’t as difficult to fix, however. They only require that legislation be passed by Congress and signed into law. 

The line of succession has bedeviled us since the nation’s founding. The 25th Amendment provides for the vice president to become president if a vacancy occurs, and Article II, Section 1 of the Constitution gives Congress authority to legislate who’s next in line in the case of vacancy or incapacitation of both the president and the vice president. But part of the problem has hinged on one surprisingly confusing word: “officer.” The Constitution says Congress may by law declare “what Officer shall then act as President,” but what that means has been muddied over the years by successive acts of Congress.

The first Congress considered legislation to fill out the line, but ultimately couldn’t pass a succession bill. “It would appear that at least as much time was spent debating postponing the matter entirely as was spent on debating actual candidates for filling the [vacancy],” says William diGiacomantonio, a historian and associate editor of The Documentary History of the First Federal Congress 1789–1791. 

Through the Presidential Succession Act of 1792, the second Congress made the Senate president pro tempore and the speaker of the House successors, in that order. James Madison, the man who authored much of the Constitution, and was a representative from Virginia when Congress passed the act in 1792, strenuously objected to congressional members being in the line at all. Seeing the need for a strong executive, he argued in favor of Cabinet members, starting with the secretary of state. But too many in Congress detested the idea of placing Secretary of State Thomas Jefferson so close to the presidency. 

The next 94 years underscored how inadequate the 1792 line of succession was. Before the 25th Amendment was passed in 1967, there was no way to replace a vice president, even though the country was without one for more than 37 of its first 178 years. Between 1792 and 1886, four presidents and five vice presidents died in office, making it clear that the short line of succession was a frail thread on which to hang the fate of the country. 

There were many unnerving moments during those years. William Henry Harrison, the first president to die in office, in 1841, was only 31 days into his term when he was succeeded by Vice President John Tyler, whose policies differed sharply from Harrison’s. Tyler himself nearly died in a shipboard explosion on the Potomac that killed two of his key Cabinet members. Abraham Lincoln was assassinated only 42 days into his second term in 1865, in a plot that was meant to also kill Vice President Andrew Johnson and Secretary of State William Seward. Lincoln was succeeded by Johnson, whose anti-Reconstruction policies were dramatically at odds with those of most Republicans. The consequences of the law of succession played a role, some scholars argue, in Johnson’s being acquitted by the Senate in his impeachment trial by only one vote. Too many senators simply disliked the aggressive president pro tempore, Benjamin Wade, whose radicalism worried them and others. 

Then, when Vice President Chester A. Arthur became president in 1881, after the assassination of President James Garfield, there was no one in line to succeed him; at that time, Congress wasn’t in session for months at a time, with no speaker or president pro tem in place. Recognizing the dangers of such a situation, Arthur called Congress into session to name its leaders and fill out the line. Grover Cleveland, who followed Arthur, had a vice president who died before Congress had even elected its leaders.

These events prodded Congress to at last undertake a drastic overhaul, passing the Presidential Succession Act of 1886. The act eliminated Congress from the line of succession and replaced it with Cabinet secretaries, ordered by the date on which their agencies were created: State, Treasury, War, Attorney General, Postmaster General, Navy, and Interior. It further cleared up confusion around that pesky word “officer,” declaring that the law applied “to such officers as shall have been appointed by the advice and consent of the Senate to the offices therein named.” It also eliminated the 1792 law’s provision for a special election under certain circumstances.

This would seem to have resolved the succession problem—but it didn’t. President Harry Truman had his own ideas about who should follow him should he die in office. After he became president when Franklin D. Roosevelt died in 1945, only a few months into his fourth term, Truman proposed putting the speaker of the House first in line, then the Senate president pro tem, and then members of the Cabinet. (Truman’s roots were in Congress, and he wasn’t in favor of Cabinet succession on principle.) In a message to Congress on June 19, 1945, Truman declared, “In so far as possible, the office of the President should be filled by an elective officer.”

Truman even referred back to Andrew Johnson, saying, “Some of the events in the impeachment proceedings of President Johnson suggested the possibility of a hostile Congress in the future seeking to oust a Vice President who had become President, in order to have the President Pro Tempore of the Senate become the President.” Indeed, the problem of inadvertently creating incentives for political assassination or impeachment continues to loom over the ongoing debate over succession.

The 1947 Presidential Succession Act incorporated most of what Truman wanted, and, as amended for new agencies, it prescribes the line of succession, following the vice president, that we have today (the speaker of the House; the Senate president pro tempore; and Cabinet heads in order of the establishment of their departments—State, Treasury, Defense, Attorney General, Interior, Agriculture, Commerce, Labor, Health and Human Services, Housing and Urban Development, Transportation, Energy, Education, Veterans Affairs, and Homeland Security).

The second Continuity of Government Commission urged Congress to return to a Cabinet-only line of succession in order to prevent a political crisis in the midst of a national disaster. “The deaths of the president and vice president, and the succession to the presidency of a speaker of the House or a president pro tempore of the Senate from the other party, thereby negating the results of the most recent election, would be profoundly destabilizing,” says Culvahouse, the recent commission co-chair. “Given that many experts deem such legislative branch officials as ineligible to serve in the line of presidential succession, I can’t imagine a worse constitutional crisis.”

During the drafting of the 1947 law, matters were muddled again. Not only did it insert lawmakers back into the line of succession, it can be read as including acting secretaries in the line of succession. This troubles scholars who worry that it could lead to mischief or simple incompetence. Congress could eliminate this confusion simply by restoring the language of the 1886 law.

Congress also inserted a strange new provision in 1947 commonly referred to as the “bumping provision.” This would allow a Cabinet member already acting as president to be “bumped out”—replaced—by a speaker or president pro tem. This could happen, for example, if those legislative positions were vacant and later filled, or if a speaker or president pro tem decided not to resign their seat for the presidency and later changed their mind. In theory, this might mean that several different people could become president within a short period. Or Congress could employ the bumping procedure as a means of controlling the executive. In short, it’s a recipe for political chaos.

Not surprisingly, the second Continuity of Government Commission found this deeply disturbing. Would an acting secretary of state be in line ahead of the secretary of treasury or defense, because of agency precedence? And what happens if a secretary died during the crisis? “Departments have their own internal lines of succession, and the death of a department head might result in the automatic ascension of an acting secretary,” the commission report states. “The acting secretary might then claim to be in the line of succession ahead of cabinet officers from other departments.” Congress could easily clear up this confusion by excising bumping from current law.

The responsibilities of Senate presidents pro tem have changed since the 18th and 19th centuries, when the leaders were elected temporarily to preside when the vice president couldn’t. The roles of vice president and pro tem both have evolved over time. In 1890, the president pro tem became a more permanent position, and after World War II it began to be awarded to the longest-serving member of the majority party in the Senate. Yet the law of succession wasn’t altered in light of this new context, and we had 98-year-old Strom Thurmond and 92-year-old Robert Byrd only two heartbeats away from the White House. Earlier this year, Democrats broke with this tradition when 89-year-old Senator Dianne Feinstein deferred to 72-year-old Senator Patty Murray, who was next in Democratic Party seniority.

Another gap in continuity—what to do when a president is alive but unable to serve—was largely addressed by ratification of the 25th Amendment. It authorizes the vice president to trigger a process with the Cabinet to declare that the president is incapacitated. But if the vice president is also incapacitated, there is no one to start the process. This could easily have happened during the height of the COVID crisis or could occur in a future, more lethal pandemic. Using its authority under Article II’s succession clause of the Constitution, Congress should fix this by authorizing the Cabinet member next in line to initiate the process.

“Current law does not provide a procedure for deciding whether both the president and vice president are incapacitated or how they might later regain their powers and duties,” says Roy E. Brownell II, a commission member and attorney. “There is a similar legal gap when it comes to resolving whether the vice president alone is incapacitated, which has serious ramifications for the operation of the 25th Amendment.” 

For the second Continuity of Government Commission, the impact of timing on succession hit home in a new way. Imagine if the 9/11 attacks had fully succeeded and had occurred in December or January after a presidential election, especially if one party had been swept out of office and the other were poised to control the White House and Capitol Hill. One Congress would have adjourned and the new one would not yet have been sworn in. No speaker or suitable president pro tem might be in place yet. As is customary, most Cabinet members in the outgoing administration would have already resigned, and the agencies would be temporarily in the hands of acting heads with little political experience or national recognition. 

This perilous time between Election Day and the inauguration offers a kaleidoscope of hazards. Should the incoming president and vice president die, the existing laws governing succession could get us into a political quagmire at the worst possible time—when the party that won the national election could not take the White House because the speaker and the president pro tem would be from the losing party. “The scenarios of catastrophe are more than theoretical,” warns Norm Ornstein. The Constitution requires the sitting president to leave office on January 20, but would that hold? 

Several times in our history the specter of having no president on Inauguration Day has haunted us. The most dramatic case was the election of 1876, at a time when the president wasn’t inaugurated until March. The dispute dragged on in the House until a few days before the inauguration, when it chose Rutherford B. Hayes. The issue of a vacancy on Inauguration Day was raised again by the delays in resolving the election in 2000, and once more in 2021 when the attack on the Capitol nearly thwarted the electoral vote count. 

Congress ultimately may craft a solution of its own, but in the meantime, the commission’s recommendations are a start. The problems Congress needs to address vary slightly according to when the critical vacancies occur: after Election Day but before the Electoral College meets; after the electors have cast their votes in December but before the votes are counted on January 6; or after the electoral votes are counted and before Inauguration Day. But broadly speaking, Congress should ensure that the new president on January 20 is of the same party as the winning candidate who died. And when the 20th Amendment applies, Congress is not limited to choosing among “officers,” so the dispute over executive versus legislative branch succession is moot.

The recent commission recommended, in addition to a Cabinet-only line of succession, that Congress pass a special succession law to cover these three time periods and proposed two additional ideas. The first is that the House leader of the party of the winning candidates would become president on January 20. That could be either the speaker or the minority leader. Alternatively, all House and Senate members of the winning presidential candidate’s party could meet and elect a successor who would take office on Inauguration Day. The commission recommended additional language for the periods before January 6 to reassure electors that they could vote for the deceased candidates and Congress would count those votes as valid. The deceased candidates could then be declared the winners and designated as president-elect and vice president-elect. This tiered approach would culminate in a vacancy in the presidency on January 20 that would be filled by the process outlined in the new special succession law.

Over the past 20 years, two Continuity of Government Commissions and many other scholars and experts have raised the alarm about our system of presidential succession as one threat after another has put us at risk. Existing law is adequate for the straightforward and more likely event of a president dying in office in normal times. But it is not calibrated for remote yet far more devastating cases. 

It is impossible to anticipate every possible way in which the complex mechanisms that govern who becomes president could be disrupted, but Congress could do much more to put into statute processes and assurances that have bipartisan support, are as unambiguous as possible, and reflect the fundamental principles of democratic rule. 

We’ve been lucky for more than 200 years, with some narrow squeaks, but one day our good fortune might run out. If a calamity wipes out the president and vice president, we need to know without political or constitutional uncertainty who will lead the country. Congress has neglected these risks to our democracy for far too long.  

The post The Disorder of Succession   appeared first on Washington Monthly.

Two years into the pandemic, America faced a silicon-coated crisis. Semiconductors, the electronic components that power computer chips in countless machines essential to everyday life—from laptops and cars to defibrillators and pacemakers—were in short supply, thanks to stress on the global supply chain from COVID-19 and the war in Ukraine. In the summer of 2022, the semiconductor shortage had affected nearly every sector of the U.S. economy. Retail shelves were empty of gaming consoles and other consumer electronics, and auto companies were rolling new cars from assembly lines into fields to wait for new chips to arrive. A global distribution system hollowed out by corporate greed and mismanagement was nearing collapse.

Fixing this sprawling problem fell to Congress, but the task was daunting. Lawmakers in charge of crafting the CHIPS and Science Act needed expert knowledge of technical fields, including microprocessing, manufacturing, distribution, and economic development, as well as high-level guidance on how to navigate complex, interdependent global supply chains and thorny geopolitical relationships. The chips in your personal computer are designed in the U.S., built in Taiwan, assembled in China, and then shipped by companies based in Denmark, Switzerland, Germany, and France. The system is fragile, relying on single sources for some materials—one company in the Netherlands manufactures components essential to many advanced chips—and vulnerable to international conflict. China, for instance, considers itself the rightful owner of Taiwan, and has positioned its military to threaten the island country. Congress, meanwhile, is aging and famously tech illiterate. Chuck Schumer, who leads Senate Democrats, still uses a flip phone, and Senator Lindsey Graham boasts that he has never sent an email. Congress clearly was going to need some help. 

Thankfully, three years earlier, in 2019, Congress had created a new office designed to provide lawmakers with precisely what they needed in this case: informed, impartial assessments of sophisticated technological issues. The newly minted office of Science, Technology Assessment, and Analytics—hardly a name to make the poets tremble—was at the ready. When Congress began to debate the CHIPS Act, STAA experts compiled more than 70 policy options to address the semiconductor crisis, briefed legislative committees behind the scenes, and later released a report that explained the issue in plain English. The final bill, a $280 billion package meant to shore up American R&D, bring factories back within U.S. borders, train a generation of scientists and engineers, and fix the supply chain problems of a dozen publicly traded companies, ultimately reflected many of the agency’s recommendations. The CHIPS and Science Act became law in August 2022; in anticipation of its passage, companies began announcing plans to bring multibillion-dollar semiconductor fabs back to the U.S. The bill’s passage marked a signature victory for Congress, and an encouraging sign that it had the capacity to pass sweeping legislation to address complex technical issues. 

It also marked yet another victory for the STAA, which has filled a critical void in the legislative branch. For decades, lawmakers have relied on a patchwork of advice from executive branch agencies, academics, lobbyists, and legislative agencies pinch-hitting on subjects they didn’t specialize in. The STAA now has 150 full-time employees, including nuclear physicists, engineers, and computer scientists, who can offer guidance on topics including artificial intelligence, cryptocurrency, and fusion energy. In its first four years, the STAA has educated members of Congress and their staff on emerging technology such as virtual reality and 5G broadband; designed interactive web tools that help federal agencies make their services easier and safer to use; and likely saved the government billions of dollars by helping federal defense programs avoid expensive boondoggles based on faulty science. It has also published dozens of in-depth “Technology Assessments,” forward-looking reports on emerging fields such as quantum computing and artificial intelligence, helping to alert Congress to challenges looming on the horizon. 

In a sea of bleak analyses about the future of the American experiment, the STAA offers a measure of hope, not only for the wonks who care about the federal government’s ability to craft smart policy, but for anyone interested in preserving and strengthening our democracy. In the past 30 years, as U.S. lawmakers cut their own budgets, the executive branch has grown in both size and influence. Now, Congress appears at last willing to respond by boosting its own capacity too—and not only through the creation of the STAA. Since 2019, the legislative branch has made steady increases to overall funding for staff, along with other policies—instituting a pay floor, lifting a pay cap—that are meant to recruit and retain experienced personnel. Reversing the brain drain among legislative staff and in its research offices puts Congress in a position to once again act as a coequal branch of government, capable of reining in presidential overreach, clarifying its legislation in the face of activist meddling by the conservative Supreme Court, and restoring citizens’ faith in the ability of legislators to govern.

None of this is to say that the STAA is perfect or a panacea to Congress’s ailments. It’s neither. The office is structured to be less ambitious and independent than many of its proponents would like; instead of making the STAA a free-standing agency, lawmakers placed it within the Government Accountability Office, an agency that is well respected for its audits of federal programs, but not as known for sweeping, vision-setting work. The STAA is also still very young, and it is still learning to conduct the kind of research that might shape Congress’s vision for the future. Its analysis on semiconductors, for example, was helpful but hardly transformative. It came late in the bill-writing process and lacked detail about how to turn ideas into concrete policy. Even the STAA’s director, John Neumann, told me the agency’s influence on the CHIPS and Science Act was likely limited. 

But whether this little office succeeds matters. If it earns legislators’ trust and if committees begin to rely on its expertise, it will be allowed to grow bigger and better. And as it becomes increasingly indispensable, it will serve as a model for other sources of expertise and forward-looking, thoughtful policy recommendations. At a time in U.S. history where know-nothing politics drowns out scientific knowledge, citizens’ faith in government institutions is at a record low, and Congress struggles to even pass a budget, whether—or how—this wonky outpost succeeds might very well chart a path forward. 

Looming over this new office is the shadow of its defunct predecessor, the Office of Technology Assessment. Known for making bold pronouncements, but killed off over a political grudge, the OTA shaped the creation of the STAA through its rise and fall. First authorized in 1972, the OTA was part of Congress’s response to the growing power of the executive branch—a means of monitoring expensive and potentially wasteful programs while providing Congress with the expertise it needed to pass effective legislation on complex technological issues. 

Time and again, the OTA’s forward-looking studies, written in clear language but backed by scientific rigor, alerted Congress to technological issues it hadn’t yet considered. As the Washington Monthly noted in a 2019 story about the OTA, Congress added mammograms and Pap smears to Medicare coverage after the agency found that they provided health benefits at a low cost. (See Grace Gedye, “How Congress Got Dumb on Tech—And How It Can Get Smart,” April/May/June 2019.) Congress banned most private employers from using polygraph tests after an OTA report questioned their accuracy. The agency also prevented government waste by flagging ill-conceived projects based on bad science, just as the STAA and the GAO do today. When the OTA found that the Jimmy Carter administration’s $86 billion synthetic fuel project wouldn’t be a cost-effective alternative, Congress pulled close to three-quarters of its funding. Back then, the OTA was so widely respected that a delegation from the Netherlands came to study its methods. (Imagine that happening today.) 

Part of the OTA’s effectiveness was the result of its structure—an arcane topic that nevertheless became critical in recent years when Congress began considering how it might revive the agency. For instance, to ensure that the OTA’s work was relevant to Congress’s needs, studies were approved and overseen by a bipartisan, bicameral body of legislators called the Technology Assessment Board. And to access all the science and technology brainpower America had to offer, the OTA devised a system to bring in outside experts—academics, private-sector researchers—as rotating staff members and as coauthors of its technology assessments. Another strength of the OTA’s was its ability to translate that technical know-how for nonexpert readers. As the late Scott Shuger wrote in a 1989 Monthly story on the OTA, the formula for success was “readable, compelling reports written by authors who understand the human dimensions of technological problems.”

Eventually, however, the OTA poured cold water on the wrong head—Ronald Reagan’s. In the mid-1980s, the president had been touting a missile defense project that would stop Soviet nukes by, among other high-tech means, zapping them with lasers. Detractors dubbed it the “Star Wars” program. Ashton Carter, the young OTA physicist writing the agency’s report (and later secretary of defense under Barack Obama), concluded that the chances of the project working were “so remote that it should not serve as the basis of public expectation or national policy.” Star Wars was abandoned, but Republicans’ resentment lingered.

A decade later, in 1995, Republicans took control of both chambers of Congress for the first time in 40 years, having campaigned on shrinking the bloated federal bureaucracy. The new Republican House speaker, Newt Gingrich, set his sights on the OTA. Scrapping the small agency would allow him and his colleagues to honor their central campaign promise while also settling an old score. To prove it was serious about limiting government, the Republican Congress cut its own budget, reducing overall staff by a third and zeroing out the OTA entirely. The resulting blow to the legislative branch’s institutional knowledge would be felt for decades. (In 2010, the Tea Party Congress followed suit by again slashing its own budget.) 

Though the rancor over Star Wars likely contributed to the OTA’s demise, it was an easy target. For one, eliminating this small, independent office provided Republicans with a savory headline: They could claim to have cut an entire agency, making the savings sound bigger than they were. For another, the OTA had strong relationships with committee staffers and the senior legislators on its advisory board, but had fewer ties to the rank-and-file members whose support it needed when leadership turned over.

Almost immediately after the OTA vanished, former employees, legislators, and good-governance advocates began clamoring for its return. Lawmakers introduced bills year after year to re-fund the agency, which was still authorized by statute. None of the bills passed. A key advocate in the early 2000s was Democratic Representative Rush Holt, a physicist who watched with alarm as Congress fell behind the rapidly accelerating technological curve. Though his efforts, too, were unsuccessful, Holt retired in 2015 having devised an architecture for a new science and tech office that would be housed within the GAO. The Holt plan would come in handy just a few years later.

The moment came in 2018, after Congress called a series of hearingswith tech executives over scandals such as the Cambridge Analytica affair—the revelation that the data broker had improperly gained access to millions of Facebook users’ information as part of its efforts to help the 2016 Trump campaign. Cambridge Analytica was part of a cascade of troubling news about tech in American politics. Russian operatives during the election had seeded discord and disinformation in social media, whose attention-seeking algorithms encouraged the bile to spread. These weren’t all liberal concerns fueled by the rise of Trump; conservatives complained that tech companies were censoring right-leaning views. The stakes for these hearings were high. Lawmakers needed to show that they understood the problem and were prepared to act.

Instead, the hearings were a catastrophic embarrassment. The late Senator Orrin Hatch, then in his 80s, who was apparently not briefed on the basics of Facebook’s business model, asked how the company could survive financially without collecting money from its users. “Senator, we run ads,” replied CEO Mark Zuckerberg. In another hearing, Representative Ted Poe, a Republican from Texas, waved an iPhone around as he quizzed Google CEO Sundar Pichai about location tracking. “I have an iPhone, and if I move from here and go over there and sit with my Democrat friends, which will make them real nervous, does Google track my movement?” he asked, brandishing a product that Google does not make. Pichai demurred, noting that it would depend on whether the user had Google apps installed. But that only served to enrage Poe. “It’s not a trick question,” the congressman said. “You know, you make $100 million a year. You ought to be able to answer that question.” In reality, Google does track many iPhone users who use its services, but the opportunity to dig into that issue was wasted. Poe’s grandstanding showcased only his own tech illiteracy.

News coverage afterward focused on legislators’ woeful lack of knowledge rather than on the very real concerns about the future of online privacy and American democracy. Compilations proliferated on YouTube of gray-haired lawmakers asking rambling, nonsensical questions about what their grandchildren were up to online. But there was a silver lining: The humiliation pushed Congress to act. 

The Facebook hearing took place in April 2018. At a House Appropriations Committee hearing later that month, legislators called for a new office that would advise them on science and technology. “No agency has stepped in to fill the void since OTA was abruptly defunded,” including existing agencies like the GAO and the Congressional Research Service, Democratic Representative Mark Takano told the committee. On the advice of advocates like Zach Graves, then director of technology policy at the R Street Institute, Congress commissioned a study on what to do next. Meanwhile, Gene Dodaro, the comptroller general of the GAO, signaled during hearings that his agency was ready and willing to host the new office. In January 2019, the GAO announced the launch of the STAA, responding to a Senate report that urged the GAO to create a dedicated science and tech office. 

Nevertheless, the debate over where to direct funding to improve Congress’s understanding of science and technology raged all through that year. On one side, admirers of the OTA, including Representative Sean Casten, a Democrat from Illinois, pushed to create an independent office that would look like the defunct agency. Casten told the Appropriations Committee that he had relied on the OTA’s assessments when he worked as a private-sector chemical engineer in the 1990s—a testament to the strength of the analysis. Congress needs an independent agency that gives it objective advice, he said, adding, “I am pretty sure I am the only freshman member of Congress who made a campaign pledge to restore the OTA.”

On the other side, many members were hesitant to create a new, standalone entity with conservative resentment still lingering over the OTA. Almost 40 years later, Star Wars was still a sore subject. In an appropriations hearing, Representative Bill Posey, a Florida Republican, accused the OTA of endangering national security by revealing sensitive information in its missile defense analysis. Posey also charged that the agency had made “wasteful use of taxpayer dollars” and “strayed from its nonpartisan origins … and published biased studies.” 

In February, Dodaro, the GAO chief, put in his bid to host Congress’s new research office, noting that his agency’s oversight work in recent years had saved an estimated $124 for every dollar spent, and that GAO already conducted technology assessments similar to what Congress was calling for. “I am here to assure you that we are prepared, if you decide to go that way, to handle those additional responsibilities,” he told the Appropriations Committee. 

In October, the report that Congress had commissioned from the National Academy of Public Administration arrived. Though the authors mostly punted on the question of what a revived OTA might look like, they recommended that Congress invest in the GAO, noting that the agency had been writing forward-looking technology assessments since 2002. The NAPA report seemed to give the lawmakers who supported the GAO plan permission to act, so Congress approved a budget request from the GAO that fully funded the STAA. “Congress chose the path of least resistance,” Graves told me. “There was some skepticism that the OTA would be viable in the current political environment.”

Setting aside the discussion about its ideal form, the STAA has already proved itself a dynamic and ambitious presence in the congressional policy-making scene. The office is now roughly the same size as the OTA was in 1994, before it was defunded, and is hiring still more scientists and engineers. 

In general, the STAA’s mandate is similar to the OTA’s. The STAA produces OTA-like projects such as technology assessments, but it moves much more quickly. Back in the 1970s and ’80s, OTA assessments took as long as 18 months to complete—far too long in today’s fast-paced environment, where members of Congress might request information about a policy discussion unfolding in real time. So the STAA has also introduced “spotlights”: two-page explainers of emerging technology issues tailored to legislators’ here-and-now needs. With phones still technically banned on the House floor, the spotlights are just the right length to be printed out and put in the hand of a member of Congress standing up to debate. The new office has also embraced video explainers, colorful infographics, and interactive online tools that can help policy-makers visualize the complex concepts, like long COVID or blockchain technology, that their work must address. 

Inheriting the GAO’s accountability-focused architecture brings certain benefits, as well. Like its parent agency, the STAA is good at evaluating whether federal programs are running on time and on budget, and whether their underlying technology will work—analysis that saves taxpayer money and makes us safer. Take, for instance, the Department of Homeland Security’s BioWatch program, which tracks air quality measurements in dozens of U.S. cities in order to provide early warning of bioterrorist attacks. A recent inspector general’s report found that BioWatch, established after the 2001 anthrax attacks, was prone to false positives and also couldn’t detect many of the biological weapons that could be used against the U.S. (Perhaps for security reasons, the public version of the report is light on details as to what those might be, though the word variola—smallpox—makes an appearance.) In 2021, the STAA evaluated the DHS’s latest candidate to replace BioWatch, a program called Biological Detection for the 21st Century, or BD-21, which would use advanced machine-learning algorithms to more quickly and reliably parse sensor data to detect potential threats. The program, the STAA concluded, “faces technical challenges due to inherent limitations in the (underlying) technologies” that could lead to still more false alarms. DHS officials concurred with the agency’s assessment and pulled the program, at least for now. 

It’s difficult to know exactly how much money was saved, especially since the DHS hasn’t said whether or how it might revive the project. But one can compare the withdrawal of BD-21 to an earlier program designed to replace BioWatch, which also proved to be ineffective. That project, called Gen-3, would have cost $5.7 billion, but would have been similarly unreliable, the GAO found in an audit before the STAA came online. The STAA estimates that the government saved about $2.1 billion by canceling Gen-3 and repurposing some of the work that went into it. Not bad for what was then a three-year-old office. 

Beyond BioWatch, the STAA has audited numerous other defense projects, including the $127 billion Columbia-class submarine, which the U.S. Navy claims it will deliver in record time. (The STAA had its doubts, and advised the Department of Defense to adopt a risk assessment schedule and provide updates on its implementation.)

Supporters of the old OTA, especially those who would have preferred to see it return as a free-standing agency, hope that the STAA will take a cue or two from its predecessor. Peter Blair, a former assistant director of the OTA who now studies congressional science and technology policy, laments that the STAA so far has been more focused on accountability work than on vision-setting analysis, such as the old OTA’s cutting-edge studies on solar power satellites and artificial hearts. “I fear that the culture of the GAO creeps into its technology assessments,” he says. 

To add vision and relevance to the STAA’s work, some advocates have recommended adopting OTA-like traits such as a Technology Assessment Board. Graves, for instance, cowrote a paper with Daniel Schuman, a policy director at Demand Progress who has been instrumental in building back Congress’s staff and research capacity, that recommends such a “hybrid” approach. By creating an advisory panel of lawmakers who oversee its research, the STAA could ensure that its work is relevant to Congress. And Blair, for his part, suggested that the STAA could add more heft to its analysis by creating a stronger mechanism to bring in outside experts and conduct peer reviews of its studies. 

Consider the CHIPS Act, for instance. Though the STAA’s advisory work on semiconductors was done on deadline, with a more detailed paper to follow, it was relatively anemic. Rather than presenting original research or new policy ideas, the 39-page report was a summary of policy options that appeared in other sources, along with the opinions of academic, government, and industry experts interviewed by the agency. Curiously, those experts aren’t named, which gives little context for the reader to evaluate their motivations for preferring one policy over another. (Especially when they opine that the private sector is “better positioned” than government to regulate the supply chain.)

The STAA’s leadership is aware of the concerns that Blair and others share, and appear receptive to at least some of them. The former codirector Tim Persons, who left the STAA for the private sector late last year, told me the office is building its capacity to bring in outside help. Right now, authors of STAA studies convene one-time meetings with leading experts, and then informally consult them as they research and write. But the agency doesn’t include outsiders as coauthors, nor does it appear to have plans to institute true peer review. And Persons said the STAA is unlikely to take on an OTA-like advisory board, either. All of those paths would likely clash with the GAO’s institutional culture, which puts a premium on its own independence. “The evolution has been slow,” Persons said. “It takes time to develop because that’s not how we’ve done things.” 

In some ways, the STAA’s creation is a lesson in pragmatic politics. Its structure—as an entity within the GAO—may not have been exactly what its proponents had hoped for, but it got the job done. The STAA exists today after nearly 25 years of hand-wringing and failed bills. And its accountability-focused, collaborative GAO architecture may also pave the way for its survival in a world where scientific truth is so often politicized. 

The GAO is successful in part because of its “just the facts, ma’am, approach,” Don Kettl, a professor emeritus and former dean of the University of Maryland School of Public Policy, told me. The agency’s auditors know how to frame their analysis to make clear why they’re scrutinizing a program, where their information comes from, and how they arrive at their conclusions. “They are super scrupulous in not doing anything that could be perceived as partisan,” Kettl said. Members of Congress will sometimes demand information from legislative researchers that they hope will embarrass their rivals. But the bureaucrats at the GAO are masters at narrowing the question, Kettl said, or burying the request in a queue, or giving a response that cites other sources, putting the sensitive parts in someone else’s words. (The OTA had some experience in that as well, according to Blair, who remembers once receiving a request from a representative who wanted proof that an expensive supercollider could not be built in a rival’s district because of dangerous fire ants.) 

Beyond that, the GAO and subsidiary offices like the STAA have a collaborative, rather than adversarial, approach that may be more likely to encourage members of Congress to embrace their conclusions—as well as ensure the office’s long-term persistence. Rather than hanging its targets out to dry for a mistake, the GAO will work with them to correct the problem. The joke, Kettl said, is that the agency’s average report will conclude, “Progress is being made, but more improvement is needed.” 

Neumann, the current director of the STAA, told me his office had good relationships with members of Congress, who appreciate that the agency presents multiple policy options and lets lawmakers decide what’s best. The STAA has built a reputation for impartiality and robust assessments, he said, so when it publishes a critical report, agency officials will say, “ ‘I’m not happy about it, but I see how you got there.’ ” Neumann added, “They can see our evidence and it stands for itself.”

Despite Congress’s reputation as the most sclerotic of branches, politicians in both parties have recognized that they need knowledge and resources to do their jobs, and have gotten it together to act. If what they have created is a more courteous, collaborative animal, able to tackle substantive issues while ruffling fewer feathers, perhaps that’s suited to the times. If the STAA can earn the trust of the lawmakers it serves, its fact-based, results-focused advice will result in policy that better anticipates the future. And it may even serve as a model for other offices. In an era where standing up for objective fact is perilous, government agencies need the ability to speak scientific truths—and survive.

The post How Congress Got Smart on Tech appeared first on Washington Monthly.

When the story of the collapse of local news is told, there are usually two villains: internet companies, especially Facebook and Google, gobbling up revenue that had once gone to newspapers; and the hedge funds that bought and gutted newspapers.

But strangely, while politicians have called for stern action against social media companies—the Justice Department recently filed an important lawsuit against Google’s domination of digital advertising—the role of private equity and hedge funds has prompted a collective shrug. No one likes what the financiers did, but there seems to be an air of inevitability, a sense that media consolidation just couldn’t be helped. 

That assumption is wrong. Antitrust enforcers could have done more—and must play a bigger role in saving local news. 

First, it’s essential to understand the gravity of the crisis. Since 2004, 2,100 newspapers in the United States have closed. On average, two newspapers shut down each week. Some 1,800 communities that had at least one newspaper now have none. The number of newspaper newsroom employees dropped 57 percent between 2004 and 2020, according to Bureau of Labor Statistics data analyzed by the Pew Research Center. Although hundreds of start-ups have emerged to fill the gap, they are too small and rare to compensate for the loss of traditional local news outlets.

These drops have happened, of course, as both the U.S. population and state and local government spending have increased. As a result, the number of newspaper newsroom staff per 100,000 people living in the U.S. has declined 62 percent, and the number of reporters per $100 million in local government spending has fallen 67 percent.

What’s more, today there are at least another 1,000 “ghost newspapers,” defined as papers that have lost at least half of their staff. Larger newspapers have cut back on coverage of counties outside the city center, and significant beats affecting residents’ lives, such as education, health care, and criminal justice. Between 1999 and 2017, coverage of local politics dropped by 56 percent, according to a study of 121 newspapers by the professors Danny Hayes and Jennifer Lawless. Between 2003 and 2017, newspaper stories about school boards dropped by a third. The falloff was even worse among smaller publications. And according to a study of 16,000 stories in 100 communities conducted by Duke University’s Phil Napoli, only 17 percent of the content in local newspapers was about local communities and addressed a critical information need. 

Media consolidation was not the initial cause of the local news collapse—but in many cases, it has intensified the harm, promises to make the situation worse, and has limited the ability of communities to respond. 

The crisis in local news stems primarily from the internet undercutting traditional business models. Advertisers reduced or eliminated their spending in local newspapers and instead placed ads on websites, search engines, or social platforms. The combination of factors led to a staggering 71 percent decline in newspaper ad revenue from 2006 to 2018. 

But mergers and acquisitions played an ever more important role in diminishing local news. In 2005, an “M&A frenzy” gripped the newspaper industry, writes Margot Susca, assistant professor of journalism at American University, in her forthcoming book, Hedged. Lee Enterprises, a newspaper chain, bought the Pulitzer newspapers. Gannett purchased the HomeTown chain. GateHouse bought 124 papers—and, in the biggest deal, McClatchy bought one of the best chains, Knight Ridder, financed with $2 billion in debt. In 2004, the 25 largest chains owned less than one-third of America’s daily newspapers. By 2020, they owned 70 percent. In the past 15 years, due to serial acquisitions, the number of newspaper owners has dropped from about 4,000 to 2,400. “Massive consolidation in the newspaper industry has shifted editorial and business decisions to a few large corporations without strong ties to the communities where their papers are located,” concluded a major study of news deserts led by Penny Muse Abernathy when she was a professor at the University of North Carolina school of communications.

Private equity firms and hedge funds are driving much of the recent consolidation. In 2016, six of the 10 biggest newspaper chains were owned by private equity firms or other financial firms, Abernathy found. Since then, many iconic newspapers—the Chicago Tribune, The Baltimore Sun, New York’s Daily News, and dozens of others—have been acquired by private equity or hedge funds. The study also found that more than 1,000 newspapers are now controlled by “hybrid” companies that are publicly traded but controlled by financial institutions.

Thanks to the intense pressure to either provide strong returns to investors or repay debt, these mergers have hurt communities. The Tribune Company eliminated the physical newsroom of the Hartford Courant, the oldest newspaper in America—and at the Capital Gazette of Annapolis, Maryland, where the staff put out a newspaper the day after their colleagues were slain in a mass shooting. A recent study by Michael Ewens, Arpit Gupta, and Sabrina T. Howell found that newspapers acquired by private equity firms were likelier than other papers to cut the amount of local coverage, and the number of reporters at those papers fell from roughly 7 to 5, compared to a more modest decline at other papers. Relative to non–private equity acquired papers, the number of articles about local government in newspapers fell 22 percent after acquisition. The authors even found that these changes in coverage led to lower voter turnout, closer elections, and more residents having no opinion about their member of Congress. “The composition of news shifts away from local governance, the number of reporters and editors falls, and participation in local elections declines,” they concluded.

By contrast, the study showed that family-owned newspapers had higher levels of local news coverage. An increasing number of local news organizations, both nonprofit and commercial, have achieved financial sustainability when they don’t have the burden of debt payments or high EBITDA goals required by publicly traded companies. (EBITDA stands for Earnings Before Interest, Taxes, Depreciation, and Amortization.) Another study, by Benjamin LeBrun, Kaitlyn Todd, and Andrew Piper, examined 130,000 articles produced at 31 corporate-owned local newspapers. It concluded that “corporate acquisition leads to a significant reduction in the amount of local news disseminated by affected publications.”

Mergers financed with significant debt put even more pressure on local news when newspaper revenues declined. For instance, GateHouse’s purchase of Gannett, a much larger company, was financed through $1.8 billion in debt financing. The combined entity, called Gannett, now owns 560 newspapers, and since 2019, it has shed almost half of its staff. During much of that period, GateHouse was managed by the private equity giant Fortress, and much of its debt is held by Apollo Capital Management, another private equity behemoth. Even if managers are well intentioned, their options are limited by the crushing burden of servicing bonds and loans. In its 2021 annual filing with the Securities and Exchange Commission, Gannett declared that one of its risk factors was that “we are required to dedicate a substantial portion of cash flow from operations to fund interest payments.” In Hedged, a former executive of Lee Enterprises said the debt service pressure made it impossible for his company to invest in the digital makeover that would have given its papers a better shot at long-term stability. “We should have taken 15 percent profit margins instead of 25 percent profit margins, so we could do the work,” he told Susca.

You might wonder: If newspapers in the digital age are a lousy business, why would private equity firms want to own them? Because there is still short-term cash to be squeezed from them. A newspaper chain that slashes the number of reporters by, say, 50 percent will not see an immediate decline in revenues. Cost savings, however, happen right away. Extra revenue declines resulting from making the paper lousy will take more time to materialize. So hedge funds actually make quite a lot of money by buying newspapers, even now.

There are, of course, exceptions and nuances. For instance, acquisition by a private equity firm is, in the short term, sometimes the only way to keep the newsroom open. The study by Ewens, Gupta, and Howell found that while newspapers snapped up by private equity firms were more likely to cut the number of local stories, they were less likely to shut down the newspaper. The McClatchy newspaper chain, now owned by the private equity firm Chatham Asset Management, has said that it is maintaining or growing staffing levels. It could well be that the problem is not bigness per se but mergers involving particular types of entities (with particular return-on-investment demands) or particular types of financing, especially in an economically declining sector.

There’s one final, less obvious way consolidation has undermined local news: by reducing the number of advertisers. We have seen many grocery, health care, and banking mergers. If there once were five local bank branches and now there are two, that probably resulted in fewer local advertising dollars being spent. And then there’s the effect of Amazon on local retailers. I was at a gathering recently of local newspaper publishers in Wyoming, and they were complaining about the impact of the tech companies. To my surprise, they were mostly referring to Amazon rather than Google or Facebook. It is undoubtedly true that Amazon provides cost and convenience benefits to consumers. Still, we should at least acknowledge that one of the side effects is undermining the retail business whose advertising powered local news and strengthened democracy.

Local news shortages profoundly harm communities. Voters with lousy local news systems know less about candidates and public officials. One study showed that a decline in local coverage led to voters being less likely to have an opinion about their member of Congress. At the same time, another demonstrated that such residents were less likely to be able to name things they like or dislike about their representative. They are less likely to be able to place their representative on an ideological spectrum. The collapse of local news appears to have contributed to a significant drop in Americans’ knowledge of local civic affairs. In 1966, 70 percent of voters could name their mayor; in 2016, only 40 percent could. 

Ask the constituents of Representative George Santos, the fabulist New York congressman. A small community weekly in Nassau County exposed a tiny portion of his fraud before the 2022 midterm election, but the paper did not even have a Twitter account and didn’t post its story on Facebook. And remarkably, there was no follow-up (or original reporting) from Newsday, The New York Times, local TV stations in the nation’s biggest media market, WNYC (the local public radio station), the Daily News, or any other print outlet. When we think about threats to democracy, we tend to focus, appropriately, on election integrity and voter suppression. But neither was a problem in New York’s Third Congressional District. Yet, in part because of a dysfunctional local news system, almost no voters had the basic information they needed when they entered the voting booth.

Communities with less local news also have lower voting rates and fewer contested races. In Cincinnati, after the closure of one of the city’s newspapers, The Cincinnati Post, fewer candidates ran for office, “incumbents became more likely to win reelection, and voter turnout and campaign spending fell.” In their study, Lawless and Davis concluded that most explanations for Americans’ waning interest in local politics “don’t account for the most dramatic change in the civic life US communities have experienced in the last 20 years: the decimation of the local news media.”

The damaging effects of the local news crisis even affect the likelihood that people will participate in other civic activities. After the closure of newspapers in Seattle and Denver, there was a significant drop in the probability that people would volunteer in civic organizations such as the PTA, the American Legion, or a neighborhood watch. Conversely, those who do follow local news closely are more likely to engage in sports leagues, church groups or charity organizations, or other civic activities. Local news makes people more connected to their communities. 

The decline of local news may even affect physical health. During the pandemic, local news was essential in pointing citizens to testing and vaccination sites and countering misinformation. Public health officials say the decline of local news has made it more challenging to track disease outbreaks. Before COVID-19, one study found that communities with less local news are likelier to have more toxic emissions. Companies are more likely to commit serious regulatory violations—including environmental and workplace infractions—in communities that have diminished local news coverage.

There’s growing evidence that the decline of local news affects the economic health of communities. One study found that communities with less local news had lower bond ratings, higher financing costs, and higher taxes. Investors apparently figure that if no one is watching the government, it will become more wasteful. 

The decline seems to be feeding polarization. In communities with less local news, voters are more likely to vote on a party line basis, splitting their tickets less frequently. And the members of Congress who get less coverage in the local press are less likely to vote against the party line.

So why did neither the Justice Department, the Federal Trade Commission, nor the Federal Communications Commission do anything about this?

As readers of this magazine know, for more than 40 years, antitrust regulators—and the courts—believed that mergers should only be blocked if they increased inefficiency, reduced competition, or otherwise harmed consumers in the form of higher prices. Any other considerations were considered speculative and hard to measure. This “consumer welfare standard” focused on efficiency and competition. 

But what has been happening in the newspaper world doesn’t fit that paradigm. These mergers have rarely reduced competition in a literal sense because, in most markets, there was one newspaper before the merger and one after. It didn’t generally lead to dramatically higher subscription prices because the cost of a newspaper hadn’t changed.

The mergers caused tremendous harm—just not of the sort that the regulators and courts deem relevant and important. Indeed, the newspaper industry is an excellent example of the limitations of the dominant antitrust vision. As the chair of the Federal Trade Commission, Lina M. Khan, has written, the consumer welfare standard “disregards the host of other ways that excessive concentration can harm us.”

Can anything be done? 

First, regarding print media, Congress could modify antitrust law to resemble the FCC’s approach to overseeing the broadcast industry. 

In February 2023, the FCC stalled a merger between a hedge fund and TEGNA, which owns 64 TV stations, saying that more study was needed to determine whether “the Transactions will reduce or impair localism, including whether they will result in labor reductions at local stations.” 

This concept of localism has long been a goal of communications regulation. “Fostering localism is one of this Commission’s core missions and one of three policy goals, along with diversity and competition, which have driven much of our radio and television broadcast regulation during the past 70 years,” wrote the Republican chair of the FCC, Michael Powell, in 2004. Stations were required to maintain a studio in the community and track programming about the community. The FCC saw—and sees—local control and programming as necessary aspects of a community, a view that the Supreme Court affirmed. Congress expressed a similar sentiment when it came time to regulate cable television, declaring in the 1992 Cable Act, “A primary objective and benefit of our Nation’s system of regulation of television broadcasting is the local origination of programming.”

But localism need not be a consideration only in TV station mergers. The concept was once a vibrant theme in antitrust debates, too. When Congress amended the 1914 Clayton Antitrust Act in 1950, it was concerned about the effects of business mergers on local control. Senator Estes Kefauver, one of the lead authors of the 1950 amendments, explained that “local independence cannot be preserved in the face of consolidations such as we have had during the past few years … The control of American business is steadily being transferred … from local communities to a few large cities in which central managers decide the policies and the fate of the far-flung enterprises they control.” In United States v. Aluminum Co. of America,Justice Learned Hand wrote, “Throughout the history of these statutes, it has been constantly assumed that one of their purposes was to perpetuate and preserve, for its own sake and in spite of possible cost, an organization of industry in small units which can effectively compete with each other.” In United States v. Von’s Grocery Co., the Court cited one of the prime sponsors of the antitrust amendments of the 1950s, Representative Emanuel Celler: “Small, independent, decentralized business of the kind that built up our country, of the kind that made our country great, first, is fast disappearing, and second, is being made dependent upon monster concentration.”

Another theory—perhaps even one that wouldn’t require statutory changes—would be to look at the diversity of voices. The Justice Department and the FCC have also blocked mergers that would reduce “viewpoint diversity.” If you think the idea of media diversity is only of interest to progressives, listen to Donald Trump’s attorney general, William Barr, who told the National Religious Broadcasters in 2020,

In 19th-century America, the press was so fragmented that the power of any one organ was small. The multiplicity of newspapers, even in one city, cultivated a wide variety of views and localized opinion. Tocqueville contrasted this to the situation he saw in Europe, where news outlets were consolidated in major urban centers, such that a few voices were capable of influencing the opinions of the entire country … The key to restoring the press in that vital role is to cultivate a greater diversity of voices in the media.

Media diversity is usually measured by the number of news outlets. But the current environment prompts us to consider a different type of diversity—the need for residents to have access to both national and local information. A dearth of local journalism is as consequential a constraint as a paucity of outlets. Residents have fewer tools for important life choices, whether it is where to send their child to school or for whom to vote in local elections. 

One way of rethinking the traditional antitrust model would be to look at information as a commodity akin to a physical product. We see that, in general, the production of local news stories declines rapidly when private equity firms acquire newspapers. In Boise, Idaho, coverage of the mayor in the Idaho Statesman dropped from 7.7 percent of the available space in the print newspaper to 3.5 percent after a private equity takeover (between 2001 and 2011)—and turnout declined by almost the same amount (from 24.8 percent to 11.4 percent), according to the study by Hayes and Lawless.

These people may not be deprived of product choices, but they are deprived of candidate choices. They may not have fewer newspapers, but they have less local information. They are less likely to have good city services and more likely to pay higher taxes because such communities are more likely to have more corruption and waste. 

These impacts may be harder to quantify than price changes. But the losses to these “consumers” are often far more severe than those assessed by traditional antitrust analysis. 

The remedies need not be limited to a binary rejection or acceptance of mergers. In the case of acquisition by a financial firm, the best step may be for the government to force a pause to allow for local bid offers. Mergers may be assessed not only in isolation but compared to other alternative acquisitions, such as a buyer’s group organized by a place-based foundation. The parties in a merger could be required to make a good-faith effort to find a buyer that would do more for localism, the community, or the employees. 

It is true that many of the horses have already left the barn. But that shouldn’t paralyze us. One big horse is still left in the barn, and its name is Gannett. The largest newspaper chain by far came from the 2019 merger (not scrutinized) between GateHouse newspapers and Gannett. The merged chain controls more than 500 papers. Gannett is hanging by a thread financially. They have laid off a fifth of their reporting staff in the past year. Recent SEC filings note that they have limited ability to invest in better local journalism or digital transformation because of the massive debt payments they must make because of the merger.

If Gannett declares bankruptcy, the most likely buyer will be private equity or a hedge fund. Soon, most local newspapers in America would be owned by a financial firm. Right about now, it might be worth remembering that the press is the only industry mentioned in the First Amendment because the Founders understood its centrality in maintaining a republic.

The failure of antitrust regulators to exert some influence—to use the stick—has made it harder for those in communities to try to save local news. In 2021, Alden Global Capital, a hedge fund with a reputation for slashing local newspaper staff, bid to acquire the Tribune Newspapers company, which owned The Baltimore Sun, the Chicago Tribune, the Orlando Sentinel,and other major papers. The businessman Stewart Bainum organized a counteroffer that would have involved local buyers. The newsrooms would have had local ownership, led mainly by nonprofits committed to greater investment in local journalism. But Alden outbid the philanthropic group and refused to sell the papers to them. Without antitrust scrutiny from the Justice Department, Alden had no pressure to keep the papers in local hands, and it could set unreasonable sale prices for the local papers.

But blocking future mergers isn’t enough. We need a strategy beyond antitrust policy that can prevent more consolidation and trigger de-consolidation—“replanting” newspapers back into communities. With papers already part of a chain, we could offer financial incentives to local nonprofit organizations or mission-oriented businesses that buy newspapers. Chicago Public Media, the parent organization of radio station WBEZ, with help from philanthropy, recently acquired the Chicago Sun-Times and turned it into a nonprofit. The government could incentivize more deals like that.

Maybe we should even provide incentives to the sellers. That might mean we’d be giving tax breaks to hedge funds. But to be crass, it might be best to pay the ransom to get the child back home. We should also amend the plant-closing laws to require that any chain planning to close a newspaper must give the community 90 days’ notice so they might organize a bid to buy the paper.

In addition, we need a strategy to prevent newspapers that are currently independent from getting scooped up because the family owners have no other choice. Owners of important Black and Hispanic newspapers, as well as weeklies in rural America, are in this position. Incentives for local ownership would help those communities too. 

These steps must be combined with improvements in business models, better engagement with communities, a greater role for philanthropy, and public policies that facilitate sustainability. For instance, the Local Journalism Sustainability Act would provide payroll tax credits to encourage the hiring and retaining of local reporters, tax credits for small businesses to buy advertising in local news organizations, and a tax credit for consumers to subscribe or donate to local news publications. Perhaps the Justice Department’s lawsuit against Google for “monopolizing digital advertising technologies” can push more ad dollars back toward local news. A victorious judgment would not eliminate the advertising technology that has hurt local media. But it would likely force Google to disgorge DoubleClick and some of the companies it acquired to form what the Justice Department considers an anticompetitive “stack” of ad services. 

We must vanquish the resignation that says a healthy local news environment is something we cannot have. We must create a reasonable, First Amendment–friendly public policy strategy for blocking or restricting mergers that are self-evidently bad for communities.

The post How to Stop Vulture Funds From Killing Local News appeared first on Washington Monthly.

A decade ago, if you’d asked politicians and citizens about “ranked-choice voting,” you’d have gotten a collective “Huh?” Today, it’s one of the fastest-growing reforms in the world of elections. Starting in Maine, where the first statewide ranked-choice elections took place in 2018, the practice has spread to Alaska’s statewide elections and more than 60 localities by the 2022 midterms.

Ranked-choice voting is a system where voters indicate not just one but all of their top preferences—No. 1 for the candidate they’re most enthusiastic about, No. 2 for the second best, and so on. If no candidate wins the majority of first-choice votes, then the lowest-performing candidate’s votes are redistributed to their supporters’ second choices. The process continues as many times as needed for one candidate to break 50 percent, ensuring that whoever wins the election has some support from a majority of voters. Under ranked-choice voting, argues Deb Otis, research director at FairVote, a nonprofit that advocates for the system, “every voter’s vote is counted, and everybody’s voice is heard.”

There are indeed many good reasons why reformers are pushing ranked-choice voting and why more and more jurisdictions are adopting it. In the United States’s prevailing “first past the post” mode of elections, the candidate with the most votes wins—regardless of whether most voters support them. With only two major political parties to choose from and an increasingly ideologically divided public, that can lead to results where a candidate disliked by the majority of their constituents wins with a minority of total votes.

In Maine, for instance, Paul LePage won a five-way gubernatorial election in 2010 with 38 percent of the vote, was reelected in 2014’s three-way race with 48 percent, and left office with a disapproval rating of 54 percent. LePage governed for eight years despite never having most Mainers’ votes; his tenure inspired the state to introduce a ranked-choice system that would make that impossible. (Maine’s highest court, unfortunately, has blocked the use of ranked-choice voting in gubernatorial elections, though the system is now in place for other statewide elections.)

Another potential benefit of ranked-choice voting is that it allows voters to support third-party and unaffiliated candidates, who might better represent their political views, without empowering a “spoiler” and elevating a candidate they strongly oppose. Had the system been in place in Florida in 2000, for instance, left-wing voters could have selected Ralph Nader as their No. 1 candidate and Al Gore as their No. 2 without inadvertently handing George W. Bush the White House.

Even if those third-party candidates don’t win, their presence on the ballot puts pressure on more mainstream candidates to reach out to their supporters to become their second or third choice. If the mainstream candidates win, then they will be on record as having signed on to some of the third-party candidate’s policy positions—legalizing marijuana, for instance, or cutting sales taxes—and will be under at least some pressure to deliver on those promises. In that way, ranked-choice voting makes democracy work better not only for voters who hold minority viewpoints, like socialists and libertarians, but also for independent voters who claim to be alienated from both major parties and in many places constitute the majority of voters. Research shows that ranked-choice voting also increases the number of women and minority candidates who run for office.

And perhaps most significantly, ranked-choice voting prevents polarized election campaigns by discouraging negative campaign strategies; you are less likely to trash other candidates if you are trying to convince their voters to make you their second or third choice. In a 2016 study, the political scientists Todd Donovan, Caroline Tolbert, and Kellen Gracey surveyed voters across the country and found that residents of ranked-choice cities consistently reported that their elections were less negative. The study’s authors attributed that in part to a loss of incentive under the preferential voting system to drag down one rival in order to win.

But to realize the full potential of ranked-choice voting, advocates would be wise to recognize and deal with a potential snag: Properly casting ballots this way requires voters to expend considerably more time studying the ballot. Ranked-choice voting works best if voters learn more about the different candidates than they typically do in a conventional election, where they only get one vote per race and so tend to ignore third-party and independent candidates. It is also likely to incentivize more such candidates to enter the race. That, in turn, requires voters to learn even more.

That’s a lot more research for voters, and it’s much harder to do that on the spot in the voting booth. The polls already can be a stressful place. You may have limited time to travel to your voting center, wait in line (which in some jurisdictions can take hours), vote, and get back to work or your family. Now imagine taking the extra time to rank four, five, or six candidates for each of 10, 20, or 50 (depending on where you live) elected offices, not to mention ballot initiatives. With kids at home waiting for dinner and a long line of impatient citizens behind you, that’s a recipe for voter stress. For election officials, who already face increased pressure from far-right conspiracy theorists, the prospect of backed-up lines filled with aggravated voters is no peach either.

To be sure, voters don’t have to do the extra research, nor are they obligated to rank every candidate. They can just rank the ones they know; their votes will count just the same. But to unlock the full power of ranked-choice voting, to blunt the edge of zero-sum, winner-takes-all politics while injecting new ideas into the ossified two-party system, voters need to be able to take their time and perform due diligence.

The best way to make that happen is for states and jurisdictions to adopt another reform that is gaining in popularity: vote by mail. If we’re giving voters more work to do, why not let them do it from the comfort of their kitchen table over the course of an evening, or a week or more, rather than standing in a voting booth with their neighbors tapping their feet and looking at their watches?

So says Phil Keisling, a former Oregon secretary of state who pioneered the use of mail-in voting in that state. In Oregon, every registered voter is sent a ballot to their homes weeks ahead of an election. They can fill it out at their leisure and either mail it back or drop it in a secure drop box or polling center. The vote-by-mail system and ranked-choice voting “pair extremely well, like a fine Oregon wine or microbrew with lots of good meals,” Keisling, now chairman of the National Vote at Home Institute (and a contributing editor to this magazine), told me.

Since Oregon launched its full vote-by-mail system in 2000, seven other states and the District of Columbia have followed suit, and since the pandemic, another seven states have loosened their vote-by-mail requirements—for instance, no longer requiring a doctor’s note to get a ballot mailed. Roughly 35 percent of the U.S. electorate cast mailed-out ballots in the 2022 midterm elections, up from 25 percent in 2018, according to the National Vote at Home Institute.

The rapid spread of the vote-by-mail and ranked-choice systems is evidence of the popularity of both. Even many Republicans who bought into former President Donald Trump’s baseless accusations that voting by mail invites fraud are embracing the practice after the party’s lackluster performance in the 2022 midterms.

There is also evidence that both reforms increase voter turnout. The data is more mixed for ranked-choice voting but increasingly strong for vote by mail. The most interesting question, Keisling observes, is whether pairing the two reforms might boost turnout more than either would do individually.

Want a more participatory, more informed electorate? An electorate with more and better choices of candidates? An electorate that can send a signal to traditional politicians in power that their old methods aren’t working—without throwing away a vote on a no-hope candidate? Then combine the strengths of these two voting systems and witness the results.

The post Two Great Election Reforms That Go Great Together appeared first on Washington Monthly.

In June 2021, Florida Governor Ron DeSantis signed legislation blocking local governments from requiring that gas stations in their jurisdictions provide electric vehicle charging stations. It was a classic DeSantis move, like his effort to ban certain books from school libraries: aggressively use state power to overturn decisions by local officials that he doesn’t like. 

Six months later, Joe Biden threw those local officials a lifeline. The $1 trillion infrastructure bill he signed includes billions of dollars in grants for municipalities to build EV charging stations—and, in a major break with past federal practice, it routes those funds directly to local governments, rather than through state departments of transportation. Wayne Messam, the Democratic mayor of Miramar, Florida, is planning to apply for one of those grants. “DeSantis claims that Florida is the free state, but every time you turn around, he’s telling us what we cannot do,” Messam recently told Washington Monthly editor Will Norris. “Yet you have a Biden administration that has worked hand-in-hand with mayors across this country … I just think that it’s just a difference between the two parties.”

This policy duel between Biden and DeSantis over EV charging stations has garnered zero press attention (aside from Norris’s story about it in the current issue). But it will almost certainly become national news, especially if the two men wind up facing each other in the 2024 presidential race, because it perfectly highlights both their governing philosophies and the place where the tectonic plates of American politics are colliding: local government. 

Rhetorically, conservatives love to defend localities against an overweening state. Open any of the loftier right-wing political journals and you’ll find essays, complete with their own nomenclature—“subsidiarity,” “little platoons”—praising the virtues of localism. In practice, conservative politicians have spent the past decade using state power to crush local initiatives. That’s because the more populous municipalities in GOP-controlled states have become bluer, and attacking their progressive policies plays well with voters in the increasingly red rural, small-town, and exurban parts of those states. In addition to DeSantis’s actions, Republican governors in Texas, Georgia, and elsewhere have overridden municipal efforts to mandate paid sick leave, protect LGBTQ rights, expand voter options, and regulate oil and gas drilling within their own borders.

Liberals, by contrast, have long been wary of local government sovereignty because, back in the day, municipalities were often resistant to civil rights and environmental laws. Yet in practice, Biden has spent his first term engineering two major shifts in federal policy to empower local communities. First, the big spending bills he has signed—on infrastructure, green energy, and COVID-19 relief—target far larger portions of their funding to local governments, as opposed to states, than any federal legislation in generations. Second, his administration has stepped up antitrust enforcement—and thereby begun to undo four decades of Washington green-lighting the growth of oligopolistic corporations that have put smaller locally owned companies out of business. That consolidation has gutted the economies of smaller towns and cities across the country and been especially damaging to local news outlets, whose purchase and plunder by hedge funds, Steven Waldman notes elsewhere in this issue, have measurably diminished the ability of local communities to function democratically. 

Ever since the political scientist Robert Putnam published Bowling Alone 20-plus years ago, evidence of the economic and civic evisceration of local communities—other than the most prosperous ones—has become overwhelming. There’s also a greater understanding that changes in federal policies can reverse the decline. That has been a consistent theme of this magazine for more than a decade. It is also the thesis of a 2020 book Putnam coauthored, The Upswing. It argues that Progressive Era and New Deal reforms at the federal, state, and local levels led to dramatically greater income and geographic equality and social and political cohesion during the middle years of the 1900s, until those trends reversed in the latter third of the century. Strengthening local communities outside the most affluent zip codes is one of the greatest challenges America faces. Undermining the capacity of local governments to deliver the policies their voters want is not, to say the least, helpful.

DeSantis’s style of manhandling local governments has nevertheless benefited him politically in Florida. But it could be a problem for him nationally. Polls consistently show that voters, conservative and liberal alike, have more confidence in local government than in government at the state and federal levels. 

But it is only a vulnerability if Biden exploits it. For that to happen, he needs to make clear that his spending and anti-monopoly policies are specifically designed to empower local communities. This he has not done, for reasons that remain mysterious. And so, we have a situation in which Republicans talk glowingly about local control even as they undermine it, and Democrats stay silent about local control even as they strengthen it. 

The post In a Biden-DeSantis Race, All Politics Will Be Local appeared first on Washington Monthly.

Rebecca Boggs Roberts opens Untold Power, her delightful new biography of First Lady Edith Bolling Galt Wilson, with a gripping scene that seems scripted for Hollywood. To set the stage: In the fall of 1919, after a grueling seven months in Europe negotiating the end of World War I, a bruising battle with the Senate over the treaty’s ratification, and a cross-country train tour to promote the League of Nations, President Woodrow Wilson suffered a series of strokes that left him partially paralyzed, intellectually diminished, and often incoherent. Remarkably, Edith Wilson—the president’s second wife, of just four years—along with a tiny coterie of loyal aides successfully conspired to hide the president’s illness from the public, government officials, and even from the president himself. For months, Wilson remained bedridden while the White House insisted that he was merely suffering from nervous exhaustion. 

As the wheels of government churned and the president convalesced, Edith installed herself as the ultimate gatekeeper, determining which matters of state were worthy of her husband’s attention, shielding him from bad news and well-meaning advisers, and meeting personally with Cabinet members and visiting dignitaries. Rumors abounded that Edith was acting as president. On the floor of the Senate, a political rival asserted that the first lady was running a “petticoat government.”

Hoping to fan the flames of scandal, Wilson’s political foes demanded an audience at the White House. In an astonishing tableau, Wilson’s personal secretary, doctor, and wife shaved and dressed the invalid president, propped him up in bed, covered his paralyzed side with a blanket, and adjusted the lighting to ensure that he remained in the shadows. Miraculously, Wilson rose to the occasion, conversing comfortably—albeit briefly—with the visiting senators. Roberts wryly comments, 

The resulting news coverage was everything Edith and her confidants could have wished for … For the moment, everyone believed the president was running the country. Edith just had to make sure everyone kept believing it until it was true or until the 1920 election, whichever came first.

Edith, assisted by the president’s closest advisers, continued this charade for an astonishing 17 months, right up until the inauguration of Republican Warren G. Harding. 

Edith Wilson has been a controversial figure for more than a century, with historians debating whether she fully inhabited the role of the executive (her detractors dubbed Edith the “first woman president”) or merely acted as a devoted wife and “steward” (as she insisted in her revealing, self-deprecating memoir).

The facts about the controversial final 17 months of the Wilson presidency are well known. But while there’s not much new factual material for presidential scholars, for the armchair historian, this richly embroidered narrative is a pleasure to read. Roberts is a fine storyteller, and she offers a compulsively readable, analytical biography of a complex woman too often depicted as a simple caricature. 

Like most scholars of women’s history (the author’s prior books concern the American suffrage movement), Roberts widens the lens traditionally focused on great white men to consider a broader set of historical actors, and to think about politics and power in a more nuanced way. Edith Wilson’s own life is proof, Roberts argues, that “serving as a duly elected executive is not the only history worth making.” 

And yet, first ladies present a particular challenge for biographers. Unlike say, an Elizabeth Cady Stanton or a Shirley Chisholm, who entered the historical record as political actors in their own right, first ladies exercise a soft power that can be harder to document, and for many Americans—even today—remains deeply uncomfortable. After all, as Roberts notes, “No one elected Edith.” 

Modern history is full of small scandals and awkward revelations of first ladies’ unspoken influence—Nancy Reagan’s consultation with a psychic on foreign policy matters, Bess Truman’s advice on deploying the atom bomb, and, most recently, the revelation that Melania Trump was in the Situation Room during the 2019 raid that killed the ISIS leader Abu Bakr al-Baghdadi. 

We should not be surprised that first ladies are so influential—they are, after all, often their husband’s closest confidante, and the isolation within the White House can be profound. And yet, compared to even the most activist first ladies, like Eleanor Roosevelt and Hillary Clinton, Edith Wilson stands alone.

Only Edith filled the vacuum created by her husband’s infirmity, an unprecedented action that Roberts terms “clearly unconstitutional.” In only one prior administration had there been a similar power vacuum, when James Garfield lingered for more than two months after he was shot by an assassin in 1881. During the period before his death, no one—not Vice President Chester Arthur, nor members of the Cabinet, and certainly not the first lady—stepped in to fill the gap. 

Indeed, as Roberts points out, at the time, the Constitution was “maddeningly vague” about how to determine whether a president was unable to serve, and who was responsible for making that difficult call. It was not until the ratification of the 25th Amendment in 1967, in the wake of President Dwight Eisenhower’s heart attack and John F. Kennedy’s assassination, that the Constitution clarified the process of presidential succession and explicitly directed how the president might be removed if deemed “unable to discharge the powers and duties of his office.”

Edith’s actions during the president’s infirmity were not merely unprecedented, they were also consequential. It was during this period that Congress rejected both the Treaty of Versailles and Woodrow’s pet project, the League of Nations. Roberts suggests that the president’s unwillingness to compromise, abetted by Edith, who shielded him from all political criticism, doomed both proposals, with global consequences. Additionally, the first lady ignored legislation she deemed unworthy of her husband’s time and dozens of bills became law by default, lacking a presidential signature. Letters from trusted advisers remained unread; even decades later, when they were donated to the Library of Congress, some were still sealed.

Roberts makes the compelling argument that while Edith’s actions following her husband’s strokes were unmatched in history, they were not altogether surprising. From the earliest days of their relationship, Edith was deeply—and, perhaps, inappropriately—engaged in the daily affairs of the presidency. Long before Woodrow’s illness, the Wilsons’ marriage was an exceptional partnership.

Woodrow’s first wife, of 30 years, died during his first term as president. Within months of her death, Woodrow began courting Edith, a stylish widow sixteen years his junior. The two met serendipitously through Woodrow’s cousin, who worked as the president’s personal secretary. 

Edith was a somewhat surprising choice for the staid, erudite president. One of nine children, she was raised in rural Virginia in the foothills of the Blue Ridge Mountains. Edith’s father was a judge, well respected in the community, but the family lived in a shabby apartment above a general store. Her grandfather had owned more than a hundred slaves on his tobacco plantation, but the family lost nearly everything in the Civil War. There was little money to waste on the daughters’ education, and Edith was casually homeschooled until age 15, then spent two years at a boarding school.

Despite Edith’s humble background, she possessed an impressive lineage—her family traced their roots to the so-called First Families of Virginia who had settled in Jamestown, and Edith boasted that she was a ninth-generation descendent of Pocahontas. As a teenager, Edith lived with a married sister in Washington, a city with greater social mobility than New York or Boston, where a young woman of modest means but good breeding could find footing. And so she did. After four years of patient courtship, Edith eventually agreed to marry Norman Galt, the owner of a successful jewelry store. (Galt & Bro. is still in business, across the street from the White House.)

When her husband died unexpectedly in 1908, Edith was just 35, childless and financially secure. The heir to her late husband’s business, she continued to run the store from afar, traveled to Europe for months at a time, and enjoyed Washington’s social life. Cosmopolitan, outspoken, and adventurous, she was the first female licensed driver in Washington, and drove an electric car. By all accounts, Woodrow was immediately smitten with the young widow, and proposed just six weeks after they met. Roberts quotes extensively from Woodrow’s swoony, romantic letters from their whirlwind, scandalous courtship. 

Along with love notes and flowers, Woodrow wooed Edith by treating her as his most trusted political adviser. Edith, who had limited formal education and had spent 20 years in the capital with no apparent interest in or knowledge of official Washington, was flattered by the president’s presumption of a partnership. In the months before they were married, Woodrow sent Edith daily packets stuffed with diplomatic correspondence and drafts of speeches, asking for her advice and editorial judgment. He wrote, astonishingly, “Whatever is mine is yours, knowledge of affairs of state not excepted.” 

Woodrow used his love notes to introduce the argument Edith later used to justify her incursion into government affairs—that her role as political partner, confidante, and later steward was her patriotic duty. 

It would be easy to dismiss Edith as an ambitious social climber, drawn to the celebrity of the presidency and to political power. But Roberts demonstrates that Edith was ambivalent at best, first rebuffing the president’s advances, then initially agreeing to wed Woodrow only if he lost the 1916 election, asserting that she had no interest in public life. In fact, Edith, who had thrived as an independent young widow, had a lot to lose by remarrying. 

But once married, she was all in. Publicly, Edith embraced the role of first lady, hosting parties at the White House, entertaining visiting dignitaries, and volunteering with the Red Cross. Privately, the couple was inseparable. Edith spent hours each day side by side with the president, poring over official correspondence and drafts of speeches. Woodrow’s passions, including golf and horseback riding, became hers as well. She joined her husband on the campaign trail, and for seven long months in Europe as he negotiated peace. When Woodrow caught a cold days after his inauguration, he asked Edith to act as his agent in highly classified meetings regarding the American defense against German U-boats. Roberts writes, “This visibility was unprecedented. Many First Ladies had advised their husbands about world affairs in private, but Edith was the first to have a literal seat at the table.”

Strikingly, throughout Wilson’s presidency, even as she amassed political power and ultimately served as the president’s proxy, Edith insisted on describing herself solely as a wife. Roberts summarizes, 

Edith could, with a straight face, maintain she was “not political,” even as she attended congressional sessions and edited diplomatic correspondence. She rationalized she was simply studying up to be the best helpmeet her husband could ask for. She was not the First Lady; she was Mrs. Woodrow Wilson.

This chasm between the way Edith viewed herself and the established factual narrative is one of the most interesting aspects of this biography. Roberts leans on Edith’s own memoir (published in 1939) as a source of information, but recognizes the first lady as an unreliable narrator of her own life, calling out factual inconsistencies, omissions, and deliberate misdirection. 

In a poignant example, Edith talks about an article Woodrow wrote in 1922. In Edith’s telling, an agent begged for a chance to represent the former president and even found a publisher for the article, but Woodrow rejected the offer—and a very generous payment—in favor of the more reputable Atlantic Monthly. In reality, the agent in question said the article was “a shallow attempt from a man who once had been known as a deep thinker” and urged him to abandon it, fearing that Wilson would be mocked if it were published. (Ultimately, it was printed in the Atlantic in a much shorter form.) Roberts notes, “Even in an episode as minor as this one, she would not admit Woodrow’s mental faculties were not what they once were.” 

Roberts relies heavily on secondary literature and a handful of well-plumbed archives, but does include one significant new primary source. She is the first scholar to access the unpublished chapters of Edith’s memoir, which cover the 15 years after Woodrow’s 1924 death. The anecdotes from these chapters include Edith’s many feisty complaints against those, including President Herbert Hoover, who failed to honor her late husband. Edith’s publishers, however, evidently concluded that this part of her life was not a tale worth telling and removed those chapters from the final manuscript. This publishing decision is itself, alas, a metaphor for the life of a first lady.

Most surprisingly, Edith, who feigned political naïveté during her husband’s own administration, became an important figurehead in the Democratic Party after his passing. She attended the party’s political conventions, supported Democratic candidates, and served as a mentor to later first ladies of both parties. She spent much time writing her own memoir and preserving Woodrow’s memory, even engaging in a protracted campaign to control all of the former president’s correspondence. 

While the political crisis precipitated by Woodrow’s illness forms the climax of the biography, Untold Power gives nearly equal weight to the years preceding and following the presidency. Edith’s pre–White House years, in particular, make good reading. While Edith herself gives these years short shrift in her own memoir—dispatching with the death of her first husband in a single sentence and making no mention at all of the heartbreaking death of her only baby—Roberts does a fine job conjuring up Gilded Age Washington and persuasively argues that Edith’s early years in the capital, both as a newlywed and then, critically, as a young widow, were formative. She writes, “In a deeply patriarchal world, her husband’s death allowed her to become the independent, worldly, woman-about-town that she always imagined, but perhaps never before wholeheartedly believed, she could be.” 

Untold Power is not a perfect biography. Roberts notes Edith Wilson’s many “firsts”—she was the first to establish a ceremonial role in international diplomacy for the first lady, the first to stand by her husband’s side when he took the oath of office, and the first to write a memoir. But Roberts could have done more to place Edith in context with earlier and subsequent first ladies. She also steps too lightly into recent revelations surrounding Woodrow’s support for segregation within the federal government. It seems likely that Edith approved of this policy—Roberts notes her “casual racism and snobbery” and lifelong sympathy with the Confederate cause—but Untold Power provides little evidence of either Edith’s reaction to the policy or her troublesome language, thereby shielding its subject from criticism.

Roberts is more successful wrangling with Edith’s seemingly surprising opposition to women’s suffrage and how her position aligned with the president’s. Roberts convincingly concludes that Edith’s opposition to women’s suffrage was most likely grounded in her genuine belief in the cult of True Womanhood, which held that men properly inhabited the public sphere, while women remained in the domestic arena. 

Ironically, this philosophy justified her own political engagement. Only by being the best possible wife could she support Woodrow in his critical work as president. Once he fell ill, it was her duty to do all she could to ensure that he healed, even if that meant taking on some of his responsibilities in his stead. So Edith rationalized her actions by asserting that shielding her husband from stress would aid his recovery, and that his recovery was vital to the nation and possibly world peace. Fifteen years after Woodrow’s death, Edith had no apologies: “Woodrow Wilson was first my beloved husband whose life I was trying to save, fighting with my back to the wall—after that he was the President of the United States.”

What are we to make of Edith Wilson’s legacy? Today, the 25th Amendment makes clear the protocol in the event of the president’s incapacity (though that protocol desperately needs tweaking—see Jean Parvin Bordewich, “The Disorder of Succession“). No one will ever serve as the president’s proxy the way Edith did during her husband’s second term. But what of her larger legacy? In many ways she was a trailblazer, establishing a role for presidents’ spouses on the public stage, both domestically and internationally. She established a precedent for first ladies’ engagement in substantive issues, and modeled patriotic behavior during wartime. And she demonstrated that a stylish, articulate, modern wife could be a political asset during a campaign and in meetings with government officials. 

But a century later, it is troubling that Edith’s instinctive understanding that raw power is best disguised as wifely duty still seems relevant. The public’s discomfort with first ladies with substantive careers persists—consider conservatives’ mockery of Jill Biden’s use of the earned title “Dr.” and the universal presumption that Michelle Obama would abandon her legal career during her husband’s presidency. First ladies’ campaigns are most palatable when they concern apolitical issues like highway beautification and children’s fitness. The soft power that all first ladies exercise remains their most potent (and largely invisible) political tool. Even after a century of progress in women’s rights and social equality, Edith Wilson’s insistence that she was a wife first, and first lady second, still rings true. Her biographer concludes by describing Edith as a woman both feminine and fearless who, defying the odds (not to mention ethical and constitutional prohibitions), “would go on to become the most powerful woman in the nation. She would go on further to pretend she was nothing of the kind.”

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The search for the origin story of modern conservatism has taken many routes. Some historians have found it in the 1930s, when a truculent right, led by figures such as Herbert Hoover and Robert McCormick, the publisher of the Chicago Tribune, warned that the true dictator was not Adolf Hitler but Franklin D. Roosevelt. Others have pointed to the early 1950s and the rise of Senator Joe McCarthy and his defenders at William F. Buckley Jr.’s fledgling magazine, National Review.

Now comes Matthew Dallek to argue that the John Birch Society, formerly dismissed as a bunch of kooks, was a key influence in the formation of the political right. Dallek, a professor at George Washington University, has waded through thousands of documents to offer a compelling and richly detailed account of the society’s activities in the 1960s. His new book, Birchers, maintains that the group was the ultimate counter-establishment movement on the right and that many of its themes were later adopted and mainstreamed by Donald Trump.

The John Birch Society founder, Robert H. W. Welch Jr., was a Harvard Law School graduate and wealthy candy manufacturer from Belmont, Massachusetts. He pinned the blame for what he saw as America’s decline on Woodrow Wilson, who had, in Welch’s words, set “this nation on its road to totalitarianism.” The New Deal heightened the peril. Welch had a charitable view of Hitler and the Nazis, and believed that communism was the real threat to America. He opposed entry into World War II and joined the America First movement. In 1941, he wrote The Road to Salesmanship, which bemoaned federal intrusions into the free market. 

After the war, Welch railed against federal agencies, global financiers, the Council on Foreign Relations, and the UN, which he believed represented sinister forces out to destroy American free enterprise and liberty. In 1954, he wrote The Life of John Birch, a biography of a U.S. Army intelligence officer who was killed in Mao Zedong’s communist insurgency in 1945. Welch was convinced that the State Department was engaged in a cover-up of the killing by officials sympathetic to Mao. He hoped that President Dwight D. Eisenhower would stymie the worldwide communist revolution, but he lost faith in the GOP after his hero McCarthy was censured by the Senate. In his book The Politician, Welch speculated that Eisenhower might be a “dedicated, conscious agent of the communist conspiracy.” According to Dallek, “Welch’s conspiratorial understanding of American life had escalated, and he now concluded that the true allegiance of some of America’s leaders was to the Communist Party, not to the Constitution.”

In December 1958, Welch met for two days at an Indianapolis motel with 11 friends, several of whom had served on the powerful National Association of Manufacturers, to launch a new organization that would educate the public about the communist conspiracy. Despite their wealth and influence, these businessmen saw themselves as victims of a cabal of shadowy elites. They were enraged by what they viewed as Eisenhower’s fecklessness in the face of the communist threat and his support for racial integration. Eisenhower and his fellow Republican establishment grandees quickly became the Birchers’ target. “The John Birch Society,” Dallek writes, “functioned as a third-party force within the larger American polity that sought to erode the perceived national consensus and remap the political geography of Eisenhower’s America.” 

One industrialist who espoused the Birch credo was Fred Koch. In the 1930s, Koch had built oil refineries in Joseph Stalin’s Soviet Union and in Hitler’s Germany. He was horrified by the former but warmed to the latter. “Koch,” Dallek writes, “thought the people in fascist nations were better off and more motivated to work hard than in countries where a central government had established a safety net for workers.” A militant anticommunist, Koch played a decisive role in spreading the Birch gospel throughout the Midwest in the late 1950s.

Welch capitalized on current events to heighten the group’s influence. Dallek explains that Welch—emulating the communists he feared—created cells of 20 members at the local level and established front groups, including the Committee Against Summit Entanglements, which denounced Eisenhower’s diplomacy with Soviet Premier Nikita Khrushchev. Leading figures on the right ranging from Arizona Senator Barry Goldwater to Buckley signed the committee’s letter decrying a summit with the Soviets and reminding readers that the Cold War was “a war to the death.” 

By 1959, the movement had started to attract support outside the world of senior business leaders, and boasted 82 chapters nationally. These local chapters disseminated books, pamphlets, and films touting the “Americanist” faith, and conducted petition drives and letter-writing campaigns to pressure public libraries and businesses to sign on to the society’s anticommunist crusade. The biggest campaign, launched in early 1961, demanded the impeachment of Supreme Court Chief Justice Earl Warren for promoting racial desegregation.

As the Birchers gained a higher profile, John F. Kennedy’s administration sought to exploit their new prominence as a handy political foil. Matters came to a head when Major General Edwin A. Walker, the commander of an infantry division in West Germany, was found to be instructing his men in the society’s teachings. (He also stated that everyone from Eleanor Roosevelt to President Harry S. Truman was “definitely pink.”) After an investigation, Walker resigned in 1961 and went on to take a leading role in opposing desegregation in the South. Numerous Republican legislators defended him, while Kennedy urged Americans to shun “counsels of fear and suspicion.”

For the GOP and many conservative intellectuals, the Birchers offered a tempting source of support. Dallek emphasizes that though Buckley has been praised for breaking with the Birchers in separate editorials in 1961 and 1962, he tried to walk a careful line—disavowing Welch’s lunacy while praising the movement’s foot soldiers. (In 1962, Buckley said, “I don’t think in my life I have made a single unfavorable reference to any members of the John Birch Society.”) Goldwater, for his part, called the Birchers “fine citizens.” Fine citizens? In the summer of 1964, Revilo P. Oliver, a member of the society’s ruling council who had written a widely condemned essay about the assassination of Kennedy called “Marxsmanship in Dallas,” stood on a brightly lit stage, a large American flag behind him, and told 1,300 Orange County residents about the “profound biological differences between human races.” 

The society began to splinter after the failure of George Wallace’s American Independent Party campaign for the presidency in 1968. According to Dallek, “by around 1970 the movement seemed more open to joining the ranks of white supremacists” and hitched its wagon to Lester Maddox, the racist governor of Georgia.

In Dallek’s view, the Birchers inspired a political tradition based on explicit racism and conspiracy theories that laid the groundwork first for the Tea Party, then Trump. But the truth is that the Birchers probably did more to sustain these impulses than they did to invent them. Non-interventionism, a belief in the superiority of the Anglo-Saxon race, and a suspicion of democracy were hallmarks of the right during the 1930s, when foes of the New Deal publicly declared that democracy was synonymous with communism. Still, Dallek deserves high praise for disinterring the history of the movement in such minute detail. He amply demonstrates that the conspiracism and hate propagated by the Birchers helped lay the groundwork for the MAGA movement decades later.

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