On February 22, as tensions that would soon spill into war mounted on the Ukrainian border, Fox News’ Tucker Carlson opened his show—the most popular cable news program in the country—with a searing monologue ripping into the U.S. foreign policy establishment. At the center of it was a sinister question: Why should Americans hate Vladimir Putin?

In a series of rhetorical questions, Carlson asked: 

Has Putin ever called me a racist? Has he threatened to get me fired for disagreeing with him? Has he shipped every middle-class job in my town to Russia? Did he manufacture a worldwide pandemic that wrecked my business and kept me indoors for two years? Is he teaching my children to embrace racial discrimination? Is he making fentanyl? Is he trying to snuff out Christianity? Does he eat dogs?

“These are fair questions,” he continued, coming to his point. “And the answer is no.”

Carlson’s defense of Putin immediately drew wide condemnation from liberals, who compared it to the way Donald Trump speaks about the Russian dictator. But another common theme of Carlson’s is not so obviously illiberal. In early 2019, for example, he announced that 

Republican leaders will have to acknowledge that market capitalism is not a religion. Market capitalism is a tool, like a staple gun or a toaster. You’d have to be a fool to worship it. Our system was created by human beings for the benefit of human beings. We do not exist to serve markets. Just the opposite. Any economic system that weakens and destroys families is not worth having. A system like that is the enemy of a healthy society.

Carlson is hardly the only Republican striking this note nowadays. Republican Senator Josh Hawley regularly joins the show to denounce Big Tech monopolies. Senator Tom Cotton recently echoed Carlson’s hostility to free markets in a speech in which, even while claiming the mantle of Ronald Reagan, he argued against “open borders, unfettered trade, and globalization,” summing up with the peroration: “We are a nation with an economy, not an economy with a nation.” In January, House Minority Leader Kevin McCarthy joined the new Republican rhetorical war on Big Business when he ripped into the U.S. Chamber of Commerce, saying it had no place in today’s GOP. 

Where is this stuff coming from? Many of Carlson’s ideas and attitudes are shared by the Barstool conservatives in Fox’s core demographic, who are as alienated these days by “woke” capitalism and “forever wars” as they ever were by “feminazis” and “libtards.” But in fulminating against monopoly and NATO expansionism, Carlson is often showcasing or channeling ideas from public intellectuals with perches ranging from the New York Times op-ed page to professorships at Harvard and Notre Dame. Many have pedigrees in Catholic conservatism, but one prominent member of their ranks is the author of a book of political philosophy whose back cover sports a lavish endorsement from Barack Obama. Another guest with whom Carlson has communed learned about the evils of monopoly capital through his love of back-to-the-land, organic hippy culture, while still another has a resume that includes working on bank regulation for Bernie Sanders. 

Many other Democrats and progressives, though they loathe Carlson’s positions on Putin and cultural issues, also share his views (often without quite realizing it) on many key aspects of political economy. AOC and Elizabeth Warren might hate Carlson’s positions on abortion, gay rights, and immigration, but they share and influence his views on the need to beef up antitrust enforcement and rethink the kind of “neoliberal” trade policies that were embraced by the Clinton administration a generation ago. Meanwhile, even many of those aging liberal Baby Boomers, as well as many moderate conservatives turned Never Trumpers, share many of Carlson’s critiques of “woke culture,” whether they care to admit it or not. 

Is there anything we can feel good about here? Throughout the history of democracy, progress has most often been achieved only when different factions come to the same conclusions for different reasons about some point or another. About 10 years ago, for example, many fiscal conservatives persuaded themselves of the need to shrink the prison population in order to cut government spending, while many religious conservatives began talking about prisoners as people worthy of compassion and capable of redemption. Liberals may have quarreled with some of the reasoning but embraced the conclusion. Subsequent bipartisan legislation led to a sharp drop in the incarceration rate.

Today, the stakes are much higher. At a time when liberalism is being tested by dictators and would-be dictators both at home and abroad, we cannot risk doing business with people who won’t forthrightly commit to at least the core, classically liberal values at the heart of our constitutional republic, including, most notably, democratic pluralism, limits on inherited privilege, and the rule of law. That includes Carlson, who has passed beyond redemption. But there is a remarkable amount of substantive overlap between Democrats and Republicans on many of the policy questions Carlson deals with. And it is just possible that at least some of the self-styled conservatives crowded into Carlson’s head might come around to discovering that they are liberals after all. 

One of the people who have gained a large influence over Tucker Carlson is Rod Dreher. In 2006, Dreher, a Louisiana native with working-class roots, wrote a book whose title summarizes its message: Crunchy Cons: How Birkenstocked Burkeans, Gun-Loving Organic Gardeners, Evangelical Free-Range Farmers, Hip Homeschooling Mamas, Right-Wing Nature Lovers, and Their Diverse Tribe of Countercultural Conservatives Plan to Save America (or at Least the Republican Party). The book’s 10-point manifesto gave voice to themes that were almost entirely ignored by the power centers of the Republican Party at the time but that are now being mouthed by the likes of Senators Hawley and Cotton. They included the conviction that “Big business deserves as much skepticism as big government,” and also the assertion that “Small and Local and Old and Particular are almost always better than Big and Global and New and Abstract.”

Dreher soon fell in with a group of other conservative-minded writers who had also become fed up with the Republican Party’s embrace of corporate America under Reagan and the Bushes. Many were attracted to the writing of Phillip Blond, an English theologian and political economist who in 2009 wrote a celebrated essay entitled “The Rise of the Red Tories.” The title referred to an incipient movement of people in the United Kingdom who were attacking the excesses of both left-wing statism and right-wing market fundamentalism, and who were starting to realize, Blond emphasized, that both sides were implicated in the “maintenance and escalation of monopoly.” When Blond came to America on a speaking tour in 2010, he shared a dais at Georgetown University with Dreher and with two other Americans who had become big fans and would help to spread his word over the next decade. 

One was Ross Douthat, still in his 20s but already a columnist with The New York Times. Douthat was part of a heterodox group of young, right-leaning writers whom the Washington Monthly at the time referred to as “Reformish Conservatives.” These were folks who had independently begun to question how the GOP could claim to be the party of family values and a champion of the working class while pursuing policies that shipped jobs abroad and prioritized tax cuts for the rich. Douthat coauthored a book with Reihan Salam called Grand New Party, in which they wrote approvingly of the New Deal but dwelt on how socially conservative that era’s liberals were by today’s standards. Drawing heavily on the scholarship of Allan C. Carlson, they pointed to such icons of liberalism as Eleanor Roosevelt and Frances Perkins and their deep commitment to using public policy to promote marriage and traditional, one-paycheck families. That’s why, they noted, the Social Security Act was crafted to provide pensions to married people even if they spent their careers as homemakers and never paid taxes into the system—a family policy that stands to this day. 

Joining Blond and Douthat on the dais that day was another public intellectual whose stature would soon grow enormously. Patrick Deneen, then a professor at Georgetown, hosted the event and helped to promote it by writing about Blond’s central insight. As Deneen described it, Blond realized that both “the centralized modern State and the concentrations of wealth and power deriving from modern ‘free’ markets” work together to destroy the “bonds of community,” including local governance, family, and religious devotions. 

Deneen pointed to the ongoing Great Recession as proof of the destructive symbiosis of Big Government and monopoly capitalism. Both parties had agreed to bail out banks that were “too big to fail” while millions lost their homes to foreclosures. “The crisis showed,” Deneen said, “that what had been sold to the American and British public for some 50 years—that one had to choose between the State and the Market—was in fact a grand illusion, and that the Left hand was as intent in making the citizenry the subjects of the Servile State as surely as the Right hand was.” Deneen and a coterie of like-minded thinkers began publishing their work in a new online publication dedicated to localism, renewal of small business, and community life, called Front Porch Republic. 

These themes have a long tradition in Catholic thought. They were foreshadowed, for example, by the writing of Pope Leo XIII, who in 1891 issued an encyclical called Rerum novarum, or “The Rights and Duties of Capital and Labor,” in which he tried to reconcile the corrosive effects of unregulated markets on community cohesion and solidarity. That mantle was picked up by thinkers such as G. K. Chesterton and Hilaire Belloc, the latter of whom used “the Servile State” to refer to the corrosive forces of monopoly capitalism and its partnership with government to permanently keep workers in a state of property-less servitude. The celebration of localism and distributed power also has a long tradition among the Jefferson-Jackson wing of the Democratic Party, and more recently has resonated among the kind of liberals who embrace the agrarianism of Wendell Berry or who share a countercultural aversion to mass consumption and giant institutions. As Americans dug out from the Great Recession and tried to absorb its lessons, a revival of the kind of creative fusion between left and right exemplified by these traditions was seemingly well timed and filled with promise. 

Eight years later, however, Deneen began to lead his flock in a very different direction. In 2018, by then a professor of political science at Notre Dame, he published his big book, Why Liberalism Failed. It was generally well received. The back cover included quotes from Douthat and Cornel West. The New York Times’s review stated that the book “articulates something important in this age of disillusionment.” Writing in American Affairs, the Harvard legal scholar Adrian Vermeule called Deneen “a worthy successor of Tocqueville.” The 2019 paperback edition even included a blurb from Obama, who praised its “cogent insights into the loss of meaning and community.”

Deneen’s book appeared at a moment when many mainstream liberals were beginning to rethink their positions on global capitalism. Many who had embraced dropping trade barriers and deregulating financial markets during the Clinton era were now becoming worried that they had gone too far, as they saw the hollowing-out of rural heartlands and the loss of working-class jobs feeding the rise of Donald Trump and reactionary movements around the globe. Deneen’s description of an ailing Middle America in the grip of corporate monopolies was certainly not lost on liberals who were paying attention. 

Yet the title of Deneen’s book was Why Liberalism Failed, not Why Liberalism and Conservatism Together Failed. Rather than emphasize a fusion of left and right in common cause against the excesses of corporate monopolies and a captured administrative state, he railed against a strawman version of liberalism that reduced it to libertarianism. Robert Kuttner, who wrote a devastating critique of Why Liberalism Failed for The New York Review of Books, was one of the few liberals who spotted the radical hostility of Deneen’s shifting message. In passages, Deneen blamed not just capitalism but the whole Enlightenment project for the fallen world he saw around him. His indictment characterized liberalism as “the greatest possible freedom from external constraints,” and then contrasted that with “the ancient concept of liberty,” which he defined as “the learned capacity of human beings to conquer the slavish pursuit of base and hedonistic desires.” 

So liberalism became in this new telling not a program for channeling and regulating economic competition to serve public purposes. Nor was it a program for preserving individual rights from the tyranny of others, including the kind of tyrannies practiced by the slave states of classical antiquity or the Confederate South. Instead, Deneen increasingly emphasized that liberalism just amounts to a philosophy of everything-goes and every-man-for-himself. 

Since Deneen published Why Liberalism Failed, a group of like-minded writers, sometimes characterized as “post-liberals” or “national conservatives,” have gained prominence and taken his thinking in still more strident and distorted directions. These include younger voices like Sohrab Ahmari, an Iranian immigrant, former editor at the New York Post, and now editor at Compact Magazine.* Tucker Carlson showcased his ideas when he interviewed him on the air in May 2021. 

Ahmari is perhaps best known for writing a polemic entitled “Against David French-ism.” David French is a religious conservative in his 50s who spent much of his career as a lawyer working on religious rights issues, often using First Amendment principles to defend the right of Christian groups, for example, to organize in universities and other public spaces. To Ahmari, French’s faith in the Constitution as a guarantor of religious freedom is a farce, because, Ahmari believes, the liberal program of radical individualism will never stop until religious conservatives completely surrender their values.

He pointed in his article to an anecdote about the Sacramento Public Library sponsoring a “drag queen story hour,” where children are reportedly read to by people dressed up in drag. “The movement we are up against prizes autonomy above all,” Ahmari wrote, echoing Deneen. “They say, in effect: For us to feel fully autonomous, you must positively affirm our sexual choices, our transgression, our power to disfigure our natural bodies and redefine what it means to be human, lest your disapprobation make us feel less than fully autonomous.” (Italics in the original.)

Douthat hosted a debate in 2019 between Ahmari and French at Catholic University in Washington, D.C. French pointed out that the same freedom of speech that permits drag queen story hours also allows Christian groups to organize and gain traction. The Constitution does not let you pick and choose which groups are allowed to hold events based on ideology. “You would undermine viewpoint neutrality in First Amendment jurisprudence?” French asked Ahmari.

“Yeah, I would,” Ahmari replied.

French reportedly won the room, but Ahmari carried the day with a widening circle of thinkers who increasingly dominate intra-conservative debates. It’s a group that includes the American Affairs deputy editor and University of Dallas politics professor Gladden Pappin; the Catholic University theologian Chad Pecknold; and Vermeule, professor of constitutional law at Harvard. Along with Deneen, these men now regularly publish essays in a Substack entitled “The Postliberal Order.”

The group includes many younger conservatives who combine contempt for the usual targets of conservative bile (the media, Hollywood, universities) with a brief against the great monopolies of surveillance capitalism (Facebook, Google, Twitter), all while embracing, in many instances, a kind of white Christian identity politics. After hearing presentations from Rachel Bovard, Amanda Milius, Christopher Rufo, and other Millennials at the National Conservatism Conference in Orlando, David Brooks wrote about witnessing, in the new conservative movement, a “fusing of the culture war and the class war into one epic Marxist Götterdämmerung,” and pronounced himself terrified. 

Should we also be terrified? Emphatically, yes! But there are still startling points of actual and potential overlap emerging between today’s New Right and New Left. 

One is family policy. Though some of the people advocating for more public support for families with children may be motivated by fears of demographic decline or by hopes of restoring patriarchal privilege, the policies themselves are often little different from those long ago put in place by Swedish or French socialists and advocated by many American feminists for generations. 

Perhaps the most startling point of intersection, however, is on the question of corporate power. Pappin, who appeared on Tucker Carlson’s show this year, advocates strengthening unions and reestablishing regional supply chains, and using antitrust and labor laws to disassemble Amazon, Uber, and social media companies. Another guest of Carlson’s a few years ago was Matt Stoller, who formerly worked on Capitol Hill for Bernie Sanders and more recently published his book Goliath, which calls on Democrats to reanimate their long populist tradition of prosecuting monopolies. 

Similarly, in an interview with one of us in January, Deneen spoke of his admiration for Barry Lynn, founder of the Open Markets Institute and one of the leading figures in elevating the issue of monopoly among progressives. (Lynn is also a frequent contributor to the Washington Monthly.) “He’s someone I see as pretty compatible with my view on, and I think a conservative view on, monopoly,” Deneen said. “It undermines public power. He makes powerful arguments. If you seek to preserve a democratic republic, there needs to be sufficient political power against concentrations of private power.”

In this quote, he aligns himself with a “democratic-republican” anti-monopoly tradition that has been at the heart of America’s liberal creed from the Founders forward. It’s a creed that only went into eclipse in the 1980s with the rise of market fundamentalism in both parties, and that today people like Senator Elizabeth Warren, Federal Trade Commissioner Lina Khan, and many other leading progressives are now working hard to restore. (For more on this, see Caroline Fredrickson, “The Too Supreme Court,” page 49.) When Deneen says liberalism failed, he apparently doesn’t mean actual liberalism, which, as Deneen well knows, has historically been all about opposing monopolies, including monopolies of organized religion and political speech, in order to preserve a democratic republic. 

The tragedy is that Deneen and others who profess to share many of his general views about the need to contain corporate power and foster community, like J. D. Vance or Josh Hawley, and perhaps even Tucker Carlson himself, have failed to acknowledge how deeply aligned they are, or should be, with the tenets of the actual liberal tradition in the United States. That tradition is not reducible to libertarianism. Rather, it is a creative hybrid that fuses the power of government with the power of markets. In the 19th century, that brought “internal improvement” like privately owned but publicly financed and regulated railroads. In the 20th century, it meant saving capitalism from itself through Progressive Era and New Deal regulation of markets and vigorous enforcement of antitrust laws. In the 21st century, the great challenge is to apply the same principles to global imperatives like reducing carbon emissions, checking surveillance capitalism before it destroys private life, and offering free and prosperous alternatives to the gathering forces of authoritarianism. 

Yet leading post-liberals continue to draw and inflame angry crowds by attacking a Trumpy, Fox News, cartoon vision of liberalism in which a putative laptop class tyrannically oppresses the thrifty and the faithful while pandering to perverts and idlers. The best of the post-liberals know better. It’s one thing to take issue with the idea that America is an essentially racist/sexist/reactionary society founded in 1619 rather than 1776. It’s another thing to reject 1776, as well, and claim, in effect, that America’s true founding came in 1620 when the Pilgrims established the white, Christian nation God intended America to be.

In point of fact, the liberal order established by the Declaration of Independence and the Constitution has produced a society in which a higher percentage of the population goes to church than in any other advanced nation. And, as Steve Waldman and other scholars of religion have long pointed out, that’s due in no small measure to the fact that in America—unlike in, say, Russia or Hungary—we don’t have an official church that monopolizes organized religion and thereby makes it sclerotic and beholden to Caesarism. Instead, we have many denominations fairly competing for souls with entrepreneurial vigor and arguably saving more of them in the aggregate than under any other system. 

So Post-Liberal Americans need to decide and declare forthrightly which side they are on. Since Rod Dreher wrote his first book questioning the Republicans’ inflated faith in markets, he has been on a journey that has included first recommending monastic retreat, then praising Putin’s use of propaganda to promote cultural and religious conservatism, and most recently traveling with Tucker Carlson to Viktor Orbán’s Hungary and serving it up as a model of what the United States should be. This is, to put it gently, the wrong path. If the concern is with the excesses of “cancel culture,” “political correctness,” and “identity politics,” or with the tyranny of Big Tech oligarchs, then the solution is not to become Putin-curious or suggest that we all convert to the Eastern Orthodox Church. Instead, the best way forward is to align with and help to restore a true liberalism, which historically has been, for all its faults, the best model not only for guaranteeing freedom of speech and of religion, but also for taming the ravages of godless monopoly capitalism.

*Ahmari’s job title has been updated to reflect that he is now an editor at Compact Magazine, and a former editor at the New York Post.

The post Inside Tucker Carlson’s Brain appeared first on Washington Monthly.

For many Americans, January 6, 2021—the day when insurrectionists stormed the U.S. Capitol, the first breach on the sentinel of our democracy in centuries—is a troubling, trembling memory. But for a 30-year-old “political futures” trader from outside Philadelphia who goes by the online moniker “Zubbybadger,” it is that, and something else, too. For Zubby, January 6 was the day his bank account went boom.

Early that morning, Zubby (who, like all the traders I interviewed for this story, requested anonymity due to the varying opinions of gambling held by their families and employers—present and future) logged into PredictIt, an online political futures market where users trade shares on potential results of political events—say, which candidate will win an upcoming election, or who will be an executive branch appointee. The Senate was scheduled to certify Joe Biden’s presidential victory, and PredictIt had created markets on which Republicans would sign official certificates of objection. 

Unlike the stock market, where shares buy ownership in a company, shares on PredictIt are priced toward the likelihood of a given outcome occurring. In August 2020, for example, traders who believed that Kamala Harris would be tapped as Biden’s vice presidential nominee could buy her shares for around 40 cents—from other traders who were willing to pay 60 cents that Biden would choose someone else. When Biden picked Harris, every share of Harris was worth a full dollar while shares of also-rans like Susan Rice and Gretchen Whitmer were worth nothing.

Zubby had grown his initial deposit of $100 up to several thousand via some savvy election forecasting as January 6 approached. “People weren’t paying it much thought,” Zubby says. “But Trump was leaning hard on those senators. It seemed obvious this was gonna be a loyalty test.” Missouri Senator Josh Hawley had already committed to object, and Zubby reasoned that there was no way Ted Cruz would let Hawley out-bootlick him, so Zubby grabbed a bunch of Cruz “Yes” in the 30s. Ron Johnson: Buy. Tommy Tuberville: Buy. More than seven “Republicans to Object”: Buy. Buy. Buy. “As it got closer and closer, you could just feel it coming,” Zubby says. “It was going to be a reckoning.” He might not have guessed that insurrectionists would breach the Capitol, but Zubby’s instinct for what the day would mean was dead on. On the day democracy nearly died, Zubbybadger made more than $3,000.

His account now flush with cash, Zubby expanded his operation. He began watching Senate committee meetings on C-SPAN, taking stock of how forcefully legislators questioned Biden’s nominees, then cashing in, time after time, by accurately guessing how many votes the nominees would receive for confirmation by combining a prodigious capacity for recall with a discerning eye for detail. 

At committee meetings, nameplates were too tiny to read on the C-SPAN pop-out he left open while toiling through his work-from-home pharma internship, so Zubby committed to memory not only who served on each committee, but also where they usually sat, so if he saw an empty chair he’d know which senator wasn’t showing up to vote that day. The diligence paid off in May 2021, when the Senate was planning to vote on the creation of a January 6 commission. He hadn’t spotted Arizona Senator Kyrsten Sinema in any of the live feeds he tracked religiously, and she’d missed three votes the previous day. He DMed Punchbowl News’ John Bresnahan, a venerable Hill reporter known to communicate with traders. Bresnahan assured him that every Democrat would be there to vote for the bill, but Zubby stuck with his gut—and his eyes. When Sinema ultimately no-showed (along with Washington’s Patty Murray and nine Republicans), it sparked liberal rage headlines. But Zubby had seen it coming, and he was $2,000 richer for it. That bet—won with the same sharp instincts and keen intuition that power good reporters—was just one small chunk of the more than $150,000 he’s made on PredictIt since his first deposit in 2020.

PredictIt, it must be said, is a strange place—an eclectic virtual clubhouse teeming with cliques and crazies, conspiracy theories and camaraderie. But amid the madness, a powerful force is at work. Here, those with a sixth sense for distinguishing news from noise get paid. Here, in a game where information is money, expertise is measured not with blue checkmarks or column inches, but in cash. PredictIt and its industry peers call themselves prediction markets, but they are actually something far more important: perhaps the one final place in our smoke-and-mirrors political world, bursting at the seams with bluster and bullshit, where nothing is more valuable than the truth. 

That there is a completely legal place to make these wagers at all surprises even some whose livelihood depends on being tapped into all things political. But legal it is. In 2014, PredictIt obtained a no-action letter from the Commodity Futures Trading Commission (CFTC), with the federal agency explicitly granting the company—which is sanctioned by Victoria University of Wellington in New Zealand—a license to operate in the U.S. In its request to the agency, PredictIt proffered the creation of a “small-scale, not-for-profit market” for “educational purposes,” which would then be managed by a D.C.-based data and technology company called Aristotle. The most risk a trader could take on in a single holding would be $850, and markets were capped at 5,000 active traders per individual market—limits that, to the chagrin of many players, have remained fixed throughout PredictIt’s history.

Beyond giving sharps like Zubby a vehicle by which to upgrade his beat-up Honda to a new ride (2021 Nissan Rogue, new, gunmetal gray), futures markets offer signals to interested parties on, at the very least, conventional wisdom regarding short- and long-term political outcomes. An investor might consider the market price on the likelihood of tax reform passing, for instance, and use it to hedge a financial asset, the same way a farmer might trade corn futures to protect an investment in this year’s crop. When prediction markets work, they are Exhibit A of the thesis put forth by James Surowiecki in the field’s ur-text, 2004’s The Wisdom of Crowds, that groups of forecasters acting independently of one another are quite likely to make guesses closer than the wide majority of the individual predictors.

In addition, PredictIt offers its aggregate data free of charge to universities and research entities for studies on market behavior. This academic utility is the linchpin in PredictIt’s legal status, and a descendant of the website’s progenitor, the Iowa Electronic Market. Founded in 1988 and administered by the University of Iowa’s Tippie College of Business, the IEM runs today with lower limits, smaller trading caps, and fewer markets than PredictIt, but its conceptual framework provided the model for PredictIt’s no-action request. 

Skeptics of PredictIt—and there are more than a few within the forecasting community—are careful to note some key differences between it and the IEM. To them, the exorbitant trading fees (10 percent on every profitable exchange) and surfeit of markets (150-plus at any given time, with widely varying levels of public relevance), along with its association with a university more than 8,000 miles from American shores, make the company’s practices seem oriented a bit more toward revenue generation than its legal nonprofit status would imply. The CFTC, for its part, doesn’t seem to find PredictIt’s business model objectionable—or, at least, there doesn’t seem to be a discernible appetite within the agency to dial up the regulatory temperature. In its eight years with a pseudo-monopoly on this weird corner of the gambling, er, investing ecosystem, PredictIt has grown a user base it claims holds steady at 30,000 total active traders but peaks to more than 100,000 trading accounts in election years. 

Recently, a new competitor joined the scene that could threaten PredictIt’s stranglehold on the market. In late 2020, Kalshi, a for-profit futures market with vastly higher limits ($25,000 per market) earned the CFTC’s blessing to commence full U.S. operations. Kalshi markets don’t touch elections—yet—but they do offer a dizzying array of political-adjacent markets, everything from interest rates and weekly jobless claims to the number of new COVID-19 cases each day and water levels on Lake Mead. Kalshi doesn’t yet have the user base to match PredictIt, but it would surprise exactly no one if, in a few years, it did.

What both sites have to negotiate is a critique that concerns every market—the one about “insider trading,” a concept with quite different implications here than on Wall Street, where it is, of course, strictly forbidden and never, ever, ever practiced. On the one hand, a campaign operative trading on information from their client could be both unfair and unethical, particularly if they can influence the outcome. But on the other, the potential presence of “insiders” undoubtedly makes the market more accurate. 

In May, for example, the price on Liz Cheney getting replaced as chair of the House Republican Conference shot up in price on high-volume trading in the 20 minutes before news broke that House Minority Leader Kevin McCarthy would hold a vote on her fate. Clearly, someone knew something that wasn’t yet public and was profiting from it. This is what an economist might call “price discovery”—the idea that by allowing anyone, even so-called insiders, to place money on the chance of an outcome occurring, a prediction market’s prices can get closer to reflecting the true likelihood of that thing actually happening. In other words, for the market to provide a legitimate public service, you really do want anyone who knows anything about Joe Manchin’s potential vote on Build Back Better to be putting money behind that knowledge in the market. On the other hand, the public significance of the things people bet on could make the participation of insiders, beyond being unfair, incredibly poisonous. While Kalshi bans users from trading on “material, non-public information,” PredictIt has no such restriction. 

Whatever “insiders” might lurk in the shadows of PredictIt markets, they certainly aren’t plentiful enough to sap the value sharps can find there. And very few find more value on PredictIt—or anywhere—trading on the outcomes of elections than a 23-year-old forecasting savant who goes by the handle Iabvek. 

Since January 2021, Iabvek—in real life, a Catholic conservative from Arizona—has made, by his own account (one I partially verified with public sources), $200,000 trading political futures. On election nights, he breaks down to-the-minute vote totals in a Zoom war room with his thinking partner, SharkoRubio, a 20-year-old from New Zealand who was trading political futures on his dad’s account before he could drive. With a combination of data modeling and qualitative analysis, the two make a killer team, and despite their youth—or, perhaps, in part, because of it—they’ve achieved minor celebrity status in the forecasting scene thanks to a run of jaw-droppingly accurate predictions that began, ironically, in an election that was already over: the race to become New York City’s next mayor.

After Big Apple voters cast ballots on June 22, Brooklyn Borough President Eric Adams had what appeared to be a commanding lead. He’d earned about 32 percent of first-place votes, far above second-place Maya Wiley, who had just 22 percent. But there was a catch. New York uses a ranked-choice voting system where voters mark ballots not just with their first choice, but with their second- through fifth-place choices as well—results of which would be made public seven days after election night. With Adams having a seemingly insurmountable lead, the mainstream political press was ready to coronate him. The day after the voting, the Cook Political Report senior editor Dave Wasserman tweeted to his more than half a million followers that Adams had a 95 percent chance to win. He was right, as it turned out, but Iabvek and Sharko saw an additional—and monetizable—
story emerging.

“The narrative on election night was that Adams had succeeded based on his strength with Black voters,” Iabvek says, “but when we took apart the data, we found that was only half the story.” When Iabvek talks about elections—and he loves to talk about elections—he does so with furious velocity and the slight twinge of annoyance that his mouth will never quite keep up with his brain. “The problem was that polls predicted Black turnout at 33 percent, but our analysis of precinct-level data showed it was actually only about 28 percent. And when we saw that, and how poorly Adams had done with almost every other demographic, we knew once they started counting second choices he might be in trouble.” 

Though Adams appeared the likely winner, the press and the candidates alike acknowledged that the race was far from over and would likely remain uncalled until mid-July. Knowing this, Iabvek and Sharko began slowly—so as not to spook the market into taking a closer look—accumulating shares of Kathryn Garcia, the NYC sanitation commissioner, who was lurking in a distant third and holding a measly market price of 10 cents per share. Their hypothesis was that Adams’s lead in first-choice votes masked a weak showing in the lower preferences, where they expected Garcia to shine, thanks to broader demographic appeal and a late-stage alliance with also-ran candidate Andrew Yang. Within a few days, Iabvek had accumulated about 200,000 shares of Garcia—at a cost of nearly $20,000. Then, he waited.

“When I get nervous, I sleep. So when the numbers were scheduled to come out, I took a nap,” Iabvek says. “I really wasn’t sure what I was going to see when I woke up.”

What he saw on his PredictIt dashboard were a whole lot of green arrows. And when the NYC Board of Elections released the reallocations, what the political world saw in Technicolor was what Iabvek and Sharko had discerned through the fog. Adams now led Garcia by a mere 2 percent, putting her well within striking distance once absentee ballots, which were likely to favor her, were included. Within minutes of the announcement, Garcia’s price on PredictIt surged to 65 cents, and the value of Iabvek’s shares had risen by more than $60,000. Thinking the price fair—with Garcia favored, but no shoo-in—Iabvek sold most of his stockpile and booked a huge win. 

But then, something else happened. On July 2, as New York awaited the final tally of absentee ballots that would determine the race, the New York Times reporter Emma Fitzsimmons offhandedly mentioned in a story an incomplete vote tally from an unnamed subset of Manhattan. Within minutes of reading the story, Iabvek was digging through the Board of Elections website in hopes of deducing which districts the ballots might be from. He soon arrived at another startling conclusion: Garcia wasn’t getting near the absentee support she’d need to take the lead. 

The tally fooled even some of the biggest names on elections Twitter. In referencing the vote totals in Fitzsimmons’s story, Cook Report’s Wasserman tweeted that the numbers were “likely a bit above the absentee clip Garcia would need” to win the race. But Iabvek was sure. He flipped his original position, buying tens of thousands of shares of Adams to win, after all. He was right again. Four days later, the final count delivered Adams—and Iabvek—a victory. The former beat cop was on track to run the nation’s largest city. The philosophy major from Arizona who has never had a boss had won $90,000.

Dave Wasserman and the other pundits who erred on the New York mayoral race aren’t dummies—they missed one, it happens. And plenty of traders had made the same mistake. Besides, Iabvek’s track record isn’t flawless, either. He boldly and quite publicly assumed that the upstart India Walton was easily going to win the Buffalo mayor race after defeating incumbent Byron Brown in the Democratic primary. She lost the general election by nearly 20 percent. The error cost Iabvek $8,000. It’s just that when Iabvek makes a prediction, the stakes are different.

“People who write about elections for a living, they may be smart or maybe not, maybe they just really enjoy talking about politics, or add some other kind of value to the public’s understanding of the process,” Iabvek says. “But they don’t have the same financial incentive to be right as someone like me.”

Iabvek’s success is coated in a delicious irony. He feels frustrated—downright hostile, if we’re being honest—toward a political/media ecosystem he believes relies too much on flimsy narratives and dubious polling to draw spurious conclusions, one moment finding certainty where none exists, the next fumbling for answers while clarifying data lurks in plain sight. And yet, it is precisely these analytical sins—committed by talking heads, tweeters, and his fellow traders—that allow Iabvek to jump a couple of tax brackets with the click of a button.

That skepticism sent Iabvek on a road trip to California’s Orange and Imperial Counties to do his own polling on the California recall, with polls suggesting lackluster support for Governor Gavin Newsom’s attempt to beat a recall election. With a fellow trader, Iabvek conducted 130 in-person interviews at doors from Spanish-only porches in Calexico to posh zip codes in the OC. Not a single person who had backed Biden in November was voting to recall Newsom, and almost no one knew anyone who was planning to. Convinced of inaccuracy in official polling, Iabvek tweeted that Newsom would win by 26.5 percent of the vote, rather than the 15.8 percent that Five-ThirtyEight’s polling average—a consolidation of publicly recognized expertise—predicted. He accumulated shares accordingly, and when Newsom beat the recall by 24 percent, Iabvek’s wallet was $16,000 fatter.

It’s hardly an original observation to note that American politics is a debilitating, gruesome hellscape. For four long years, our president was a lying liar who lied about absolutely everything. He lied about having a killer disease, pretty patently tried to infect his 77-year-old opponent with that disease, and when he lost an election to that opponent, convinced his acolytes of a Big Lie, that the election had been stolen, its results fraudulent. 

Liberals have plenty of their own lies, though less overtly cancerous—grifters who amass armies of followers with tales of pee-pee tapes and kompromat; or rake huge salaries by separating you from your money promising that Amy McGrath really, truly can win in Kentucky, or that if we hold enough signs outside Joe Manchin’s boat, he will thoughtfully reconsider his position on the filibuster. 

Has it always been this bad? Burr killed Hamilton, sure. But at least the bullet told the truth.

To say that prediction markets reward truth is not to say they are immune from the poisonous political world they exist to reflect. The comments under any PredictIt market demonstrate this reality. (Kalshi, for better or worse, has no comment sections.) PredictIt is, by its own admission, a male-dominated space, and the same casual racism, sexism, homophobia, obnoxiousness, juvenile idiocy, and outright irredeemable batshit nonsense exists here that subsumes many online spaces. (A debate over whether “Hillary Clinton” is actually a cyborg who took the place of the real Hillary Clinton after she died of COVID-19, a virus she may or may not have played a central role in creating, remains a favorite.) The site has recently stepped up its efforts to police its comment sections, but relies mostly on a report-and-sanction model. As in many online spaces, the racist, lunatic fire just burns too hot for it to be completely put out.

Of course, dumb beliefs, in a market where you actually have to be right, lead to betting markets that sharps can easily profit from. For weeks after the 2020 election—undoubtedly fueled by what traders call “MAGA Money”—the price of Trump prevailing in Pennsylvania and Georgia, and even states like Minnesota where Republicans were making no pretense that he’d actually won, persisted in the teens despite all evidence to the contrary. The difference between them and the MAGA-heads on OAN or Newsmax, however, is that being wrong loses money. If Tucker Carlson were on PredictIt, he wouldn’t be raking in eight figures—he’d be bankrupt.

The scarcity—and value—of good information creates another, less nefarious purpose for each market’s comment board, serving as a place to glean nuggets of intel from fellow traders. Here, traders swap tips and theories, posting tweets of potentially valuable news. But often—too often, some would argue—posters do so with a certain intent: to influence traders toward a certain position, so as to unload shares they’d like to sell, or in the hopes of making the ones they want to buy get cheaper. This is called a  “pump.”

Pumping is, depending who you ask, shady, hilarious, annoying, potentially criminal, or something of an art form. A pump puffs up a certain commodity with the intent of boosting demand for it, raising the price buyers are willing to pay, and allowing the holder to exit a position with a profit. A pump might be false information, or might be a half-truth, real facts shared with gusto and no context, under the guise of “help.” An effective pump entices with details that seem too mundane to be fiction. 

Last winter, as Education Secretary Miguel Cardona awaited his swearing-in—and the March 1 deadline for the related market loomed—a couple of traders posted announcements from the Twitter accounts @whschedule and @whpoolreport saying Cardona would likely be officially sworn in the night before the deadline, instead of the day after, as most had assumed. The market flipped after the then-notorious pumper AIBets posted a screenshot of the official-looking missive in Disqus along with a taunt: “Thanks for the cheap YES.” Not long after, the well-known white hat Domer, a longtime trading pro from the West Coast, equal parts respected and feared by other traders, posted that the Twitter handles were fake. PredictIt traders hadn’t been the only ones fooled. Months later, Politico reported that the same Twitter account had, on at least four occasions, snuck questions into virtual White House press briefings and had them answered by very real Press Secretary Jen Psaki. In D.C., it took weeks before anyone sniffed out the ruse. On PredictIt, it took Domer about 10 minutes. 

Domer has an undeniable nose, and not just for spotting a pump. The guy’s made more than a million bucks as a trader. And when he smells what’s going on, he can profit from it, too—by realizing what’s happening and then grabbing the right shares at a bargain price he had nothing to do with setting. But that doesn’t mean he likes it.

“It undermines the ecosystem, and the victims are inevitably newbies,” Domer says. “It’s hard enough to do well without being bombarded by people trying to rip you off at the same time.”

He’s referencing comments on a message board, but Domer might as well be talking about the entire sorry state of American political discourse today. After all, isn’t it all just one big pump? Zubbybadger knew that Donald Trump was pumping Republican voters on a stolen election and voodoo Dominion machine conspiracies, and that plenty of GOP senators would have no choice but to join the pump too, if they wanted the value of their positions to rise. Iabvek looked under the hood in California and found a public getting pumped—unintentionally though it may have been—by polls that weren’t capturing reality, and by pundits who got more clicks selling a barnburner than selling a blowout. Comment section junkie diehards talk up crap shares, then flip them for pennies to noobs suckered at the offer of a deal too good to be true. Candidates gin up votes promising the world, fail to deliver the undeliverable, then shrug their way to a more profitable life on K Street. The truth will set you free, but in either arena, a lie can still get you paid. 

Maybe PredictIt and the futures markets like it aren’t so different from the brick-and-mortar political world after all. At any rate, Zubby, Iabvek, and Domer should, perhaps, give us some small comfort. Even in the face of a good pump, the best are still awfully hard to fool.

The post The Art of the Pump appeared first on Washington Monthly.

On a cold December day in 1971, a group of young Alaska Native people gathered in a classroom on the Alaska Pacific University campus in Anchorage. They had come to await a phone call from President Richard Nixon. Many had grown up in orphanages and mission schools; few had finished high school. For years they had organized, fighting a hostile government and Big Oil to secure a land claim for Alaska Native communities. Finally a bill had made its way through the U.S. Congress. Now they waited to see what Nixon would do.

When the call came, the president began by expressing his own view that the settlement was the right thing to do. But he wanted to hear from Alaska Native people before signing it. Congress had not solicited a Native vote on the settlement. Although Alaska Native people had worked mightily to achieve a settlement and shape its terms, they had played no formal legislative role. Those in the room represented Native associations from across the state. Would they agree to this legislation? All but one group said yes. 

Applause broke out, and people gave each other high fives. Nixon had just agreed to sign the largest Indigenous land claims settlement in U.S. history. The Alaska Native Claims Settlement Act (ANCSA) delivered nearly $1 billion in cash and conferred title to 44 million acres to Native people. The settlement would enable them to address their communities’ lack of adequate housing, health care, education, employment, and clean water, the legacies of dispossession and Jim Crow–style segregation. Since then, Native corporations have become economic powerhouses with global influence. 

The young people who filled the room that day included my father, Roy Huhndorf. As a child, I watched the fight for land claims and the settlement unfold. Most white Alaskans vehemently opposed the idea that Native people had claims to the land. My father donned a bulletproof vest during the day and attended college classes in the evening, year after year, to earn a degree that would help him meet the challenges of the moment. Threatening phone calls woke my parents, along with other Native families, in the dead of night. Their victory meant, among other things, that my generation gained access to higher education. Had there been no land claims settlement, I would not be a Berkeley professor.

But to win, Alaska Native people had to help Big Oil. Had oil not been discovered in 1968 at Prudhoe Bay, now the largest oil field in North America, Alaska Native people would likely have won no settlement at all. Courts decreed that Native land claims had to be settled before companies could develop that oil. For the first (and, so far, only) time, Congress settled Native land claims by establishing for-profit corporations rather than reservations with tribal governments. In so doing, lawmakers attempted to align tribal interests with those of oil companies.

The prospect of corporations presented Native people with a dilemma. The legislation aimed to integrate rural, subsistence-based communities into the mainstream capitalist system. Natural resource exploitation threatens Native people’s ability to hunt and fish, practices on which they still depend. Moreover, “the corporate structure is the reverse of tribal structure,” explains my father, still a prominent figure in Alaska Native politics. After 20 years, the corporations would go public, and the land would pass out of Native hands. Perhaps the land would be lost before then. The same young people who had lobbied for the settlement would be charged with running multimillion-dollar corporations with no relevant education or experience. Officials opined that Native people were inept and their corporations were destined to fail.

My father’s story is a key part of this narrative. Along with other young Native people, he grappled with a settlement that brought promise along with potential peril for his own Yup’ik and Athabascan family members, along with Inupiat, Unangan, Sugpiaq, Tlingit, Haida, Tsimshian, and Eyak people in more than 200 tribal communities across the vast state. Native people, who had for decades watched their lands slip away, would have to choose between a settlement that imperiled their lifeways and no settlement at all. Or at least so it initially seemed.

But thanks to my father’s generation, history took an unexpected turn. Alaska Native people transformed termination legislation into a tool for rebuilding their communities and spurring economic development across the state. Never before had Native organizations anywhere in the country wielded such power. 

Nevertheless, the details remain devilish. Corporations are economic entities without legal standing as tribal governments. The absence of sovereignty and subsistence guarantees has compromised the safety and health of Alaska Native people, along with their ability to live off the land.

Fifty years after the passage of ANCSA, the U.S. Supreme Court has agreed to hear cases that will determine the future of Native nations in this country. At stake is tribal sovereignty. Cases about child welfare and the extent of Native legal jurisdiction on Native lands threaten to end policies of Native self-determination launched by the Nixon administration. These policies have benefited Native and non-Native communities alike.

The story of ANCSA tells what happens when Native communities gain the power to shape their own destinies. It is also a cautionary tale about what happens when those powers of self-determination are limited. Lawmakers should heed its lessons.

My boyhood was one of the most perfect ones I could have imagined,” my father says about growing up in Nulato, a small Athabascan village on the Yukon River. As the crow flies, Nulato is more than 300 miles from Fairbanks, the nearest city, which remains accessible only by boat or plane. In places with no electricity, running water, or supermarket, Native people lived off the land.

Fishing in the Nulato River, which runs behind the village, counts among my father’s favorite memories. “I remember looking into that crystal-clear water and fishing for grayling with a willow pole and an old string and a bone hook. I used to love to watch them coming up. You could see them coming up to the surface to get a fly and dive right back down, slowly like a bird in this clear water.”

Village life is hard work. The Huhndorf family burned wood for heat and hauled water from the river. My father was the second youngest of nine children. As a toddler, he gathered kindling for the kitchen stove. As he grew, he fed the dogs and carried water. By the time he was nine or ten years old, he hunted spruce hens and ptarmigan in the woods surrounding the village.

The Yukon River is vast, flowing nearly 2,000 miles from its headwaters in British Columbia to where it empties into the Bering Sea. Its basin exceeds the size of the state of Texas. Each summer, massive salmon runs supply the major food source to Native villages along its length. Families gather at fish camps, catching salmon in nets and fish traps to put up food for the long winters. Ducks and geese supplement summer diets. Moose can be hunted throughout the year. When my father was growing up, trapping provided the main source of cash. There was a small store in their village that sold salt and pepper, flour, coffee and tea, and crackers. 

Native territorial claims emerge from histories of use and occupancy codified in the common-law doctrine of Aboriginal title. Until the middle of the 20th century, most Alaska Native people depended on hunting and fishing to survive. Still today, about half live in rural areas off the road system, and even those in cities often depend on subsistence practices. In Alaska, land rights remain crucial for Native survival.

In the 1960s, as Native people began to file their claims, the U.S. Congress appointed the Federal Field Committee to investigate how much land Alaska Native people used. The report, “Alaska Natives and the Land,” provided an answer: nearly all of it. For Alaska Native people, the idea that they might lose their land was unthinkable. Nevertheless, when my father and other organizers came of age in the 1950s and ’60s, they watched their lands and livelihoods begin to slip away.

Life in Alaska had begun to change with the birth of the Russian fur trade in 1743. When the U.S. purchased Russian interests in Alaska in 1867, there were no full-scale Indian wars or tribal treaties. Instead, Native people lost their land through gradual settler encroachment. The canned salmon industry took fishing sites, churches acquired lands for missions and schools, and the government created townsites. Beginning in 1898, gold strikes in western Alaska drew tens of thousands of fortune seekers. Miners destroyed salmon streams and slaughtered animals on which Native communities depended. For the first time, Native people became a minority on their own lands. As noncitizens, they could not stake mining claims, vote, or own land. 

The gold rush brought mass death, from the measles virus and a deadly strain of influenza, diseases to which Alaska Native people possessed no immunity. The resulting epidemic wiped out entire villages. My great-grandfather had to ferry priests up and down the Yukon River to attend to the sick and dying. “They’d travel to fish camps where there would normally be two or three dozen people, sometimes more,” my father says. Often, though, “there would be nothing there but barking dogs on their chains—barking because no one was there to give them water. Everyone was either dead or in the stages of dying.” Today Alaska Native people remember this period as “the Great Death.”

After the gold rush, dispossession commenced on a grander scale. In 1907, President Theodore Roosevelt created the Tongass National Forest out of Tlingit and Haida land, an area that would eventually encompass almost 17 million acres. In 1923, the Warren Harding administration carved the 23-million-acre National Petroleum Reserve out of Inupiat territory. Native people became, in one organizer’s words, “renters or squatters in our own territory.”

A system of Jim Crow–style segregation made matters worse. In 1905, the Nelson Act legalized the segregation of Alaska’s schools. Theaters, restaurants, businesses, and even churches barred Native people from entry or created “whites-only” sections.^. Signs warning “No Natives or dogs allowed” remained commonplace even after the Anti-Discrimination Act was passed in 1945. The position of Alaska Native people, one journalist reported, was “equivalent to that of the Negro in Georgia or Mississippi.” 

By mid-century, the situation of many Alaska Native communities was dire. A 1954 report commissioned by the U.S. Department of Interior placed infant mortality at more than 10 percent of all births and life expectancy at 46 years. Alaska Native per capita income was about 25 percent of that of the white population in the U.S., with two-thirds of households falling below the poverty line—a poverty rate more than seven times that of white Alaskans.

But for Native people, the situation was about to get worse. 

On June 30, 1958, the Anchorage Daily Times ran its largest headline ever. It read simply, in all caps: “WE’RE IN.” Congress had just admitted Alaska as a state. Revelers flooded the streets. People lit bonfires. In Fairbanks, they colored the Chena River gold to commemorate the gold rush. Statehood, many believed, would usher in a new era of hope and prosperity. 

By chance, Willie Hensley passed through Fairbanks for the first time in years on the very day that the Alaska Statehood Act passed. A contemporary of my father’s, Hensley would play a major role in the settlement. As a child, he had attended mission school in his home village of Kotzebue, and like nearly all Alaska Native young people who wanted a high school education, he had been required to attend Native boarding school. Hensley had just graduated from a boarding school in Tennessee. Everyone was celebrating statehood, and at first he celebrated too. He didn’t yet realize that millions of acres of Native land were at stake.

The Statehood Act entitled Alaska to select 103 million acres of land, more than one-quarter of the entire state and an area about the size of California. It prohibited selecting lands to which Native people held rights, but in practice that prohibition meant little. The new government began acquiring land that included entire Native villages. “The moment the state selected a piece of ground and got tentative approval,” Hensley said in an interview, “we were never, ever going to get it back. That was the extinguishment of Indian title.” That prospect required urgent action. 

Alaska Native people began to organize. They established Native associations to address land loss and other challenges. The Cook Inlet Native Association formed in 1964 in Anchorage, the state’s largest city. People showed up for meetings, says Emil Notti, the organization’s first president, but there was no money for anything else. “We had $9 in the bank,” he recalls. People held bake sales and cakewalk fund-raisers. The funds started to add up.

In October 1966, Notti learned that representatives of the Bureau of Land Management and the Department of Interior planned to hold a meeting about Native land claims in Washington, D.C. He called Alaska Senator Bob Bartlett, who said, “Come on down.” Willie Hensley, by then a candidate for the Alaska House of Representatives, accompanied him.

Bartlett had told them to “walk right in” to the meeting. They surprised Secretary of the Interior Stewart Udall and Alaska Governor William Egan; no Native people had been invited to the meeting. “What that did,” Notti says, “was put the [Department of the Interior] on notice and the state of Alaska on notice that when they talked about Native lands, we intended to be players and participants.”

The Native associations provided many young people with a path to Native politics. My father counts among them. When he was in his mid-20s, my father attended his first Native association meeting. By that time, he had moved to Anchorage and married my mother. He was a night watchman in a warehouse where my family had a tiny apartment. By day he worked at Grocers Wholesale, a company that supplied grocery stores. For him, Native rights, as he would later tell the story, began in a freezer.

“At Grocers Wholesale, I was assigned to the freezer. They had a huge freezer, and they had a special electric forklift I worked in there. You pulled the frozen stuff down from the storage racks with it and assembled orders. It was always 30-below, 40-below in there.” No one wanted to work in the freezer, so the bosses assigned that job to the Native workers. In the cold, they talked about politics. A coworker convinced my father to attend a meeting of the Cook Inlet Native Association. Within a year, he became its president. The rest of his life has been devoted to Native issues.

The Alaska Federation of Natives formed in 1966. It created committees to address education, employment, health, housing, and other issues. The land claims committee issued recommendations: The U.S. Department of the Interior should freeze all state land selections pending an Alaska Native land claims settlement, Congress should pass a law to settle Native land claims, and Native people must help to determine the form that the settlement would take. 

At first, they made little headway. But the political landscape was about to change dramatically. In December 1966, just weeks after the AFN’s first meeting, Udall imposed a land freeze, halting acquisition of lands to which Native peoples had laid claim. The state would be unable to proceed with land selections until the claims were settled. Nor could private companies access resources in those areas. The pressure compelled the state to begin discussions with the AFN to bring a land claims bill to Congress.

Then, in March 1968, oil was discovered on Alaska’s North Slope at Prudhoe Bay. But bringing that oil to market posed a problem. Prudhoe Bay lies within the Arctic Circle. The Beaufort Sea remains frozen for most of the year, making it impassable for oil tankers. Transporting the oil south to the port of Valdez required building an 800-mile-long pipeline across Native lands.

Native villages filed suit to prevent a pipeline construction permit, insisting that a right of way could not be permitted before Native claims were settled. A federal district court judge issued a preliminary injunction against pipeline construction. If the oil companies wanted a pipeline, the federal government would have to settle Native claims first. But the deal they struck would have to support the looming oil bonanza.

Federal Indian policy, it is often said, is like a pendulum: It swings back and forth between hostility to Native interests and support (however nominal) for Native nations. Alaska Native people began organizing to protect their land rights in a period of hostility. During the termination era of the 1950s and ’60s, Congress sought to abolish Native communities. It “terminated” more than a hundred Native nations and dissolved their reservations. When lawmakers began debating Alaska Native claims, they refused to consider recognizing 200 villages as tribal governments. If the land claim did move forward, it would likely take the form of a cash settlement. The federal government never returned land to Native communities. 

Most lawmakers opposed any kind of settlement at all. For years, Alaska Native people found no support from their own state government or congressional delegation. Native politics often upends divisions between the left and right. Senator Ernest Gruening, a liberal hero, opposed the Vietnam War and fought racial segregation in Alaska, but he fiercely opposed Native land claims. 

Soon another factor worked in favor of a settlement: the 1968 election of Richard Nixon, the most Indigenous-friendly president ever. Nixon overturned termination-era policies and called instead for “a new era in which the Indian future is determined by Indian acts and Indian decisions.” He signed measures to support Native self-determination, increased the budgets for the Bureau of Indian Affairs and Indian Health Service, and established the special office on Indian Water Rights. His administration leveraged the return of Blue Lake to Taos Pueblo, the first instance of the U.S. returning land to a Native nation. 

Outside of the Native world, few understand the significance of these changes. Sovereignty and land are the lifeblood of Native politics. Native nations with tribal governments have the power to control their own membership, facilitate economic development, administer social services, and assert hunting and fishing rights on their lands. Many operate their own justice systems and have jurisdiction over environmental regulations. For Native nations, the right to govern themselves on their own lands is as important as it is in European nations such as Ukraine. But federal Indian policy has been a relentless assault on Native sovereignty. Nixon reversed that trend, at least temporarily. 

No measure advanced by the Nixon administration was more significant than the Alaska Native claims settlement. The legislation conveyed to Alaska Native people nearly as much land as all Indian reservations in the U.S. combined. Passed by Congress on December 18, 1971, the Alaska Native Claims Settlement Act extinguished “Aboriginal title” in Alaska in exchange for $962.5 million and title to 44 million acres, about one-ninth of the state. It remains the largest Indigenous land claims settlement in U.S. history.

But to win back their land, Alaska Native people had to agree to facilitate oil development. ANCSA established for-profit regional and village corporations to own the land and administer resources. Rather than being enrolled in a tribe with a reservation, Alaska Native people became corporate shareholders. Whereas reservation land is held in trust by the federal government for Indian tribes, the corporations would hold “fee simple” title to the lands—that is, they would own the lands outright with the ability to develop natural resources, and even be able to sell them. This opened up the possibility that the land could be lost. 

From the lawmakers’ perspective, establishing corporations solved multiple problems at once. The profit imperative would compel Native communities to engage in resource exploitation, while private property ownership and the corporate structure would hasten Native assimilation. It was no oversight that ANCSA remained silent on questions of sovereignty and subsistence rights. Under the original legislation, the corporations would go public after 20 years. At that point, lawmakers predicted, Alaska Native communities would no longer exist, and the land would pass out of Native hands. 

The prospect of corporations roiled the Native community. In a series of letters published in the Native newspaper Tundra Times shortly after the settlement, Fred Bigjim, then an Inupiat Harvard graduate student, expressed criticism of ANCSA that spoke for the concerns of many Alaska Native people. ANCSA, he warned, was a plan for terminating the Native way of life in Alaska.

Yet there seemed to be little choice. Never before had the U.S. settled Native claims by returning land. The Indian Claims Commission, established in 1946, provided only monetary settlements. This was the possibility that organizers feared most. At meetings of the Alaska Federation of Natives, my father remembers, participants agreed that above all else, they needed their land. Congress had made clear that recognizing tribal governments was off the table. Establishing corporations would be the only way to hold on to Native lands.

In addition, some Alaska Native people had their own reasons for wanting a different kind of settlement. They cast a wary eye on the state of Indian Country in the lower 48 states. Reservation lands are held in trust by the federal government, and government abuses were notorious. Most tribes, in the days before gaming revenue flowed in, confronted extreme poverty and economic dependency. 

“Our association with the Bureau of Indian Affairs and other federal agencies in the past instilled in us hatred for bureaucracy,” explains the Ahtna elder Roy Ewan, one of the organizers who were involved in the settlement. “We didn’t want to be like the other American reservation Indians.” Ewan, along with other Native organizers, had worked to create community development corporations in Alaska as part of Lyndon Johnson’s War on Poverty. They had experience using corporations to meet community needs. Under ANCSA, the corporations would own the lands without BIA control. Economic resources would enable them to address community needs. Corporations, as they saw it, could provide a different, perhaps better, path to self-determination.

In the aftermath of the settlement, the young Native people who had organized so powerfully for land claims would be tasked with making corporations meet the needs of Alaska Native communities. In their hands, corporations became tools to rebuild communities and advance tribal rights, contrary to the purposes of the congressional authors of ANCSA. But the years that followed also brought setbacks that stemmed from the corporate structure itself.

When the settlement was passed in December 1971, it provided only six months to establish the corporations. The BIA helped to identify and enroll about 80,000 Alaska Native shareholders. Land selections required years-long negotiations with the secretary of the interior. Although the legislation promised to return village land and the surrounding areas needed for subsistence, sometimes those lands had already been claimed by the state or other entities. In those cases, the parties had to agree on alternative selections. The goals were twofold: to secure village and subsistence sites, and to select lands for resource development, as the corporate profit imperative requires. 

During those years, we saw little of my father. In 1975, he became president of Cook Inlet Region, Inc., the Anchorage-based Native corporation. It was as he devoted himself to land negotiations and building the corporation that he realized a college education would help. He worked long days, returned home for dinner, attended night classes, then arose at 3 a.m. to study. Some semesters, his travel schedule forced him to drop out, but he always reenrolled the following term. He graduated from college the year before I did. Throughout this time, my mother held the family together. He says she has always been his best adviser.

Over the past 50 years, the corporations have transformed the Native community and contributed billions of dollars to Alaska’s economy. They have created tens of thousands of jobs. Cook Inlet Region alone has distributed nearly $1.25 billion in dividends to approximately 9,000 Native shareholders. Their unexpected success changed public opinion. Governor William Egan, among others, reversed his long-standing opposition to the settlement. Had he understood the economic benefits that ANCSA would bring, he later told Native organizers, he would have supported a settlement of 80 million acres or more.

Although Congress had written ANCSA as termination legislation, the corporations have used their profits to rebuild Native communities similar to the way that other tribes have used gaming revenue. Native corporations established nonprofit entities to address housing, job placement, health care, elder support, and legal assistance. They have contracted with federal agencies to provide social services through subsidiary nonprofit organizations. Multimillion-dollar endowments provide funds for education. 

These organizations took over programs previously run by the Indian Health Service, creating a network of clinics in Native villages linked to major medical centers in urban areas. The Southcentral Foundation, a nonprofit subsidiary of Cook Inlet Region, has won international recognition for health care innovation. The Harvard Medical Center sends its own physicians there to receive training. These health care organizations transport residents of rural villages to Anchorage, where the major Native health care facilities are located, at no cost to them. Alaska Native life expectancy has increased by 25 years.

Alaska Native people also used corporations to advance tribal rights. They successfully lobbied Congress to overturn the requirement that the corporations would go public in 20 years; they remain an integral part of Alaska Native life today. Corporate resources support revitalizing traditional cultural knowledge, including languages, and reforming a criminal justice system that targets Alaska Native people. 

In 1993, the Department of Interior added Alaska villages to its list of federally acknowledged tribes; today, they number 229. In so doing, it codified the bifurcated system of governance established by ANCSA: Corporations hold tribal land and attend to the social and economic welfare of Alaska Native people, whereas tribes administer local affairs in a government-to-government relationship with the U.S. 

Soon after, however, the Supreme Court would decide that Alaska Native villages do not hold the same sovereign rights as tribes in the lower 48 states. Unlike other tribes, they could not exercise significant control over economic development, the justice system, or hunting and fishing rights on their own territory. The reason: the status of ANCSA lands.

In 1997, the Supreme Court heard Alaska v. Native Village of Venetie, which centered on whether the Venetie Tribal Government could levy taxes on businesses located on tribal land. The state government told the Court that the village lacked taxation authority. At the Court, John Roberts, the future chief justice, represented the state. Indian Country, he argued, includes only lands held in trust by the federal government or other “dependent communities.” It does not include lands owned outright by a corporation. The justices ruled unanimously in favor of the state of Alaska. Ironically, the very elements of ANCSA that my father’s generation saw as a path to self-determination—their communities would wholly own their lands without BIA control—provided the legal basis for undercutting their sovereignty rights. 

The Indian Law and Order Commission, convened by Congress in 2010 to study crime in Indian Country, reports that the state of Alaska’s control over law enforcement puts the safety of Native people, especially women and children, at risk. The commission stresses the urgent need for tribal governments to engage in justice delivery. The lack of sovereignty rights, however, prevents them from doing so. In this regard, the commission concluded, ANCSA “got Indian policy in Alaska wrong.”

For the Native community, no problem looms larger than subsistence rights. The Tlingit elder Sam Kito, who had worked to bring about the settlement, laments that his generation failed on the issue of subsistence. Despite decades of advocacy, the federal and state governments control hunting and fishing rights in Alaska, and both entities refuse to recognize subsistence as an Indigenous right with cultural meanings. Alaska Native people do not hold these rights even on their own lands; rather, they are subject to the same subsistence laws as other Alaskans. Still today, Alaska Native people depend on hunting and fishing for survival, and they face criminalization when those practices violate state law. In the aftermath of the Venetie decision, neither the corporations nor tribal governments possess legal standing to assert those rights. 

Recently, the anomalous political status of Alaska Native corporations hindered the pandemic response. In 2020, 18 tribal nations sued the Department of Treasury to prevent the corporations from receiving CARES Act funds. These corporations, they argued, should not be included among tribal governments that administer social services—although the corporations have assumed this responsibility for decades. Congress had allocated $8 billion for tribal nations, and without the corporations, other Native communities would receive a larger share. The larger problem is that corporations are not regarded as tribal entities, even by Native communities outside Alaska. The decision wound its way through the courts for more than a year, leaving Alaska Native communities with limited resources at a time when they were disproportionately suffering from COVID-19. In June 2021, a Supreme Court decision agreed that Alaska Native corporations had this power. 

Since the 1970s, the retribalization movement has grown increasingly powerful in Alaska. Alaska Native villages have established tribal councils, adopted constitutions, and established their own justice systems (though their authority remains limited). Tribal governments serve a role that corporations cannot: They bolster cultural and community identities on the land. 

Often the people who sit on the tribal council also run the corporation. This explains why many Native people do not see them as in conflict. The central question, says the Native political leader Willie Hensley, is how to make these organizations work for the people. He sees this as the challenge for the next generation. “Don’t get hung up on the entity, because they’re all alien entities anyway,” he advises. But Congress and the courts retain the power to obstruct retribalization.

Fifty years after the Nixon administration launched the era of Native self-determination, the policy pendulum appears to be swinging the other way. Throughout the U.S., renewed assaults on Native land, identity, and sovereignty are being waged in legal battles as well as the court of public opinion. The legal debates are the same as those about ANCSA. Suspicions persist about the competency of Native communities to manage their own affairs.

The 2020 U.S. Supreme Court decision in McGirt v. Oklahoma is at risk. The decision confirmed that most of eastern Oklahoma legally remains Indian Country and the state has no legal jurisdiction over crimes committed on those lands. The state of Oklahoma has filed more than 30 petitions asking the justices to overturn McGirt. The Court recently agreed to consider narrowing the scope of the decision, with arguments scheduled for April. The decision will carry implications for tribal rights on Native lands across the country.

But perhaps the greatest threat to tribal sovereignty comes from challenges to the Indian Child Welfare Act. The ICWA grants tribal nations jurisdiction over custody cases involving tribal citizens. Before the act was passed in 1978, one-third of all Native children were removed from their communities and placed in non-Native homes or institutions, even when well-qualified family members were available to care for them. Child removals were designed to facilitate the assimilation of Native people into the dominant society. The ICWA reversed this practice. The new system has been called the gold standard for child welfare by a coalition of 18 national child advocacy organizations. Challengers contend that tribal control over their citizens represents an unconstitutional race-based preference, calling into question the legitimacy of tribal sovereignty itself. If tribal sovereignty is overturned, Native lands will be open for resource exploitation. The Supreme Court will hear the case in its next term, beginning in October.

ANCSA carries important lessons for these debates. The young Native people who brought about the settlement transformed their own communities and built the economy of the entire state. Yet their success has been obstructed by a federal system that refuses to recognize Alaska Native tribal governments and thereby imperils the health and safety of Native communities and their ability to live off the land as they have always done. The story of Alaska Native land claims calls on Americans to rethink a system of federal Indian law that hinges on the idea that Native people cannot run their own affairs.

I recently asked my father what one thing he would tell readers about ANCSA. The settlement transformed despair into hope, he says. Alaska Native people were able to care for themselves and shape their own future. “People often say, we gave Native people everything, and look what happened. But what you didn’t allow us was the opportunity for self-determination.”  

The post Native, Inc. appeared first on Washington Monthly.

In June 2018, Doug Peterson of Nebraska sat with other state attorneys general in a hotel ballroom in Portland, Oregon, and listened to the bad news. Big Tech, a presenter told them, has spawned a new cohort of monopolies rivaling the power of the 19th-century robber barons. Google, Facebook, Amazon—these companies’ constant surveillance over legions of users gives them a commodity more valuable than anything that comes out of the ground: information. It was at that meeting that Peterson first realized the power in knowing what millions—billions—of people search for, buy, click on, and “like” online. He thought to himself, “Data is the new oil.”

A few months after that presentation, Phil Weiser, a wonkish lawyer who quite literally wrote the book on 21st-century consumer protection—Digital Crossroads: Telecommunications Law and Policy in the Internet Age—was elected Colorado’s 39th attorney general. Weiser had no idea that his background in antitrust, which he himself considered a niche corner of law, would be relevant. But a week after he took office, Weiser got a call. Doug Peterson needed help. He wanted to sue Google.

“Thank God for Phil Weiser,” Peterson says today. Most states have strong antitrust laws that have mostly gone unused for the past few decades, as economists, politicians, and jurists nationwide took a benign view of corporate megamergers. Weiser’s experience was critical to dusting off those tools as the pair built their case and recruited more states to their cause over the next two years. As their investigation revealed how Google uses its dominance in online search and advertising—the company sold 28.6 percent of digital ads last year, followed by Facebook’s 23.8 percent—to starve competitors of traffic and block them from the ad market, Peterson felt a growing sense of outrage. When filing the suit, in December 2020, he proclaimed to the press that he wouldn’t be content with a monetary settlement, and even floated the idea of forced asset sales. “Fines are like kicking gorillas in the shin,” he said at the time. “We fortunately have remedies that are much broader in scope.” 

Meanwhile, the federal Department of Justice was limbering up its own substantial antitrust enforcement powers. In October 2020, the agency launched a similar, but slightly narrower, complaint against Google’s market abuse. (Weiser and Peterson also are going after Google’s attempts to dominate smart appliances and vehicles, among other areas.) The lawsuits were merged in federal court, but Weiser and Peterson have jealously guarded state control over settlement terms, thereby preserving the ability to keep fighting if the feds decide to give up. The case is now in pretrial maneuvers. Whether or not it succeeds, the show of cooperation between Weiser, a Democrat, and Peterson, a Republican, along with the involvement of 36 other states and territories, is a powerful statement that the American people no longer believe that the tech giant’s actions are in their interest. 

It also mirrors the early days of antitrust, at the turn of the 20th century, when states first led the way. The conference where Peterson had his epiphany was organized by the National Association of Attorneys General, a professional group that began, appropriately enough, as an interstate meeting about antitrust. In 1907, state regulators gathered at that inaugural conference to discuss a joint strategy addressing the dominance of Standard Oil. 

Today, after 40 years of regulatory neglect, the story is much the same, but with different names. Half of America’s industries are dominated by their four largest companies, and the tech giants’ control over their respective spheres is even more crushing; Google, for instance, accounted for 87 percent of internet searches in 2018. The top 0.01 percent of Americans held roughly 11 percent of the nation’s wealth in 2012, compared to 9 percent in 1913 and only 2 percent in 1977, just before Reagan-era deregulation. Many observers are calling this a second Gilded Age.

Meanwhile, in addition to co-leading the Google suit, Peterson and Weiser have become major players in a 48-state lawsuit seeking to break up Facebook, led by New York’s Letitia James. Some AGs—in Washington, D.C., and Ohio, for instance—are going it alone against the tech giants, while others are scoring antitrust victories against more conventional monopolists. Of note are recent settlements in California and Pennsylvania that curbed anticompetitive behavior from large hospital chains—a major contributor to soaring health care costs. And lawsuits are just the beginning; states like New York and Illinois are updating their century-old antitrust statutes and lobbying Congress to do the same.

State attorneys general are aware that, whether in the Gilded Age or today, only the federal government has enough power to bring the biggest monopolists to heel. And that process has begun. Last July, President Joe Biden issued a sweeping executive order directing federal agencies to start prosecuting long-neglected antitrust cases and offering competition-friendly prescriptions for a wide range of industries: technology, medical devices, ocean shipping, internet and phone access, and financial services, to name a few. He named Lina Khan, a young lawyer and antitrust warrior who has written for this magazine, as chair of the Federal Trade Commission. And bipartisan legislation is working its way through Congress, including a bill from Senator Amy Klobuchar that would provide federal prosecutors new resources and relaxed evidence standards to bring antitrust cases. 

But even if it passes—which is far from certain—that legislation is quite moderate. (It would not, for instance, break up existing monopolies.) Meanwhile, the Biden administration’s enforcement is only just getting started, and is likely to face stiff opposition in federal courts from laissez-faire judges who have been greenlighting mergers for their entire careers. Despite all the current antitrust energy, then, Washington is likely to deliver incremental victories at best for some years to come.

That’s why what’s happening in the states is so important—and always has been. Looking back at history reveals not just the trust-busting of Teddy Roosevelt and Woodrow Wilson, but also the vital role of the states as a proving ground for antitrust policy and an inducement to federal action. Kansas, Ohio, Texas, and others tested new antitrust laws and courtroom arguments throughout the 1880s and ’90s, acting out a Darwinian selection process that brought the best solutions to the top. Meanwhile, the states helped build a groundswell of public opinion against the 19th-century robber barons, pushing Washington ultimately to break their backs. So if you want to see where this generation’s fight against oppressive monopolies is headed, don’t just look at Capitol Hill or the White House. Look to the states, as well.

Our present-day antitrust protections, disused as they may be, were won through decades of struggle. In the 1870s, a handful of the biggest industrialists—John D. Rockefeller, Andrew Carnegie—started buying up competitors, taking advantage of their already deep wells of capital and the demand for centralized production that arose during the Civil War. A decade of furious consolidation followed, culminating in an innovation that would make the likes of Rockefeller some of the richest and most powerful men in history: the trust.

In 1882, Samuel C. T. Dodd, a high-ranking attorney for Standard Oil, conceived of a corporate structure that would allow Rockefeller to coordinate central control over his many acquisitions while concealing their interactions under the shield of an overarching “trust.” The arrangement allowed him to rule over entire markets without accountability. Standard owned oil wells; it owned refineries; it owned the railroads that carried petroleum to customers. Competitors in oil extraction who used those railroads suddenly saw their transportation costs skyrocket. They went out of business, or sold to Rockefeller.

The entire country watched these developments with alarm, but it was states that first took action. In 1889, Kansas enacted the nation’s first antitrust law. Eleven other states followed with their own statutes as Congress continued to gather information, much as it’s doing today. Also in 1889, a series of federal hearings revealed the secretive ownership structure of Standard Oil, leading Ohio Attorney General David K. Watson to sue, arguing that the company had violated its state charter by placing control in the hands of out-of-state trustees. Standard Oil assembled a crack legal team and brought considerable political pressure against Watson, an elected official, but he prevailed before the Ohio Supreme Court. The court ordered Standard to dissolve the trust; instead, it fled the state.

Watson’s victory was short-lived. For decades to come, states played a game of whack-a-mole as corporations changed jurisdictions to avoid tightening restrictions. New Jersey, for example, saw an opportunity after the Ohio suit and welcomed Standard Oil with friendly incorporation rules. Other states responded by requiring companies to be incorporated in-state in order to do business there. Texas and Kansas became particularly aggressive in revoking the charters of monopolistic corporations, a practice that became known as an “ouster” because it effectively kicked a company out. Standard’s ouster from the Lone Star State helped companies such as Texaco, founded in 1902, to thrive in an otherwise monopolized industry. Ousters haven’t been possible since the mid-20th century, when the Supreme Court limited states’ oversight over charters in response to some southern states’ attempts to use that power to fight desegregation.

State initiative spurred federal action. In 1890, Congress passed the first federal antitrust law: the Sherman Act, sponsored by Ohio Senator John Sherman. The legislation banned harmful monopolies and industry collusion, but left open the question of how to define those terms. For decades, federal authorities left it up to the states to enforce the Sherman Act, which mainly became a cudgel to smash unions for “conspiring” to control the labor market. Meanwhile, states passed increasingly aggressive laws that pushed their own officials to fight monopolies. In Kansas, where many public servants didn’t collect salaries, instead relying on fines and fees, the law offered direct monetary rewards to officials who brought antitrust action—and punishments if they didn’t.

The groundswell of anti-monopoly sentiment eventually reached the highest level of the federal government, which used its power to bring companies such as Standard Oil to its knees. In the early 20th century, Presidents Teddy Roosevelt and Woodrow Wilson enthusiastically embraced antitrust enforcement. They had different priorities: Roosevelt believed that it was impractical to prevent companies from growing too large, and thus it was better to work with them, whereas Wilson believed that they threatened democracy unless they were broken up. Nevertheless, over just a few years, all three branches of government made a historic run of antitrust action. In 1911, the Supreme Court ordered Standard Oil dissolved, arguing that it was in violation of the Sherman Act. In 1914, Congress passed the Clayton Act, adding specificity to what constituted illegal and anticompetitive behavior, and the Federal Trade Commission Act, creating a new agency to protect competition in U.S. markets. In 1916, Wilson appointed Louis Brandeis to the Supreme Court. In the ensuing “Brandeisian” period of jurisprudence, courts and federal regulators struck down any mergers of companies whose total market share exceeded 30 percent—a simple rule of thumb now known as a “bright lines” standard. What followed in the middle of the century was an era of widespread prosperity.

The first Gilded Age produced powerful antitrust tools for states today to use, but over the past 40 years they’ve gotten rusty. The tale of late-20th-century deregulation has been told many times in recent years, but in short, we have two major figures to thank: the University of Chicago and Robert Bork. In the 1970s, after three decades of vigorous antitrust enforcement, Bork, an influential jurist, argued that government intervention had gone too far, and was now stifling the natural efficiency of markets. Chicago economists backed him up with studies purporting to show that larger companies, with greater market shares, provide better services with little to no cost to consumers. The states since the 1920s had ceded more and more of their antitrust responsibilities to Washington; starting in the ’80s, President Ronald Reagan and subsequent presidents of both parties radically dialed back federal enforcement, and even encouraged consolidation, either directly (in the defense industry) or indirectly (in banking). Throughout this time, the courts steadily narrowed their interpretation of what constitutes an illegal monopoly, focusing almost exclusively on whether a given company’s dominance affects consumer prices. Gone are easy-to-apply bright lines standards; now, antitrust is the domain of exorbitantly paid economists who use calculus and regression analysis to determine what consumer prices might look like, if companies were allowed to merge. And they usually are.

By the end of the last decade, however, as the disastrous results of industry consolidation became too obvious to ignore, public officials, especially at the state level, began to reject the whole Borkian paradigm. One of the first to act was Xavier Becerra, then attorney general of California and now U.S. secretary of health and human services. His target: giant hospital chains whose monopoly control of health care markets had helped drive up American health care costs per capita at twice the rate of wages for years. In December 2019, Becerra reached a $575 million settlement with Sutter Health, a network of 24 hospitals and 5,500 doctors, over allegations that it used market power to raise prices for patients and insurers. In San Francisco, a Sutter area, a hospital visit for a heart attack cost roughly $25,000 in 2019, compared to $15,000 in parts of Los Angeles where the chain didn’t hold sway. The settlement wasn’t a mere payoff to the state and to the employee unions that joined the suit—it also required Sutter to change its behavior. The chain is now banned from engaging in so-called all-or-nothing agreements, which required insurers to include all of the chain’s medical facilities, even if they wanted to do business with just a few hospitals. The settlement also avoids surprise medical bills by limiting what Sutter can charge for out-of-network visits. (Sutter did not admit wrongdoing and denies that it forced insurers into all-or-nothing agreements.) 

California obtained these concessions in a fairly traditional way: by suing under antitrust statute while working with the federal government, which brought a separate case. But in Pennsylvania, Attorney General Josh Shapiro showed how states can corral rapacious hospital chains without even invoking antitrust law. In 2020, Shapiro forced the University of Pittsburgh Medical Center, a 40-hospital system, to stop bullying a major insurer, Highmark Blue Cross Blue Shield. The UPMC had previously denied Highmark’s patients access to its doctors in hopes of forcing the insurer to pay higher rates; Shapiro countered by threatening to revoke the hospital chain’s nonprofit, tax-exempt status. Shapiro’s right-hand man, Executive Deputy Attorney General James Donahue, told me that this kind of antitrust action is easier to bring in part because health care is more immediate to consumers than the abstractions of internet marketplaces. “Health care is real,” he said in a recent interview. “If your co-pay suddenly becomes more expensive, if you can’t go to the doctor you want, then it becomes very real to you.” Another factor is that many hospital systems, even if they relentlessly seek profits and pay their executives millions, are technically charities, governed by laws protecting the public good that don’t apply to for-profit companies such as Google.

At about the same time Donahue and Becerra were taking on hospital monopolies, a state senator in New York, Michael Gianaris, began setting his sights on a far bigger target: Amazon. The behemoth retailer first drew the lawmaker’s ire when, in 2019, it announced that it had chosen Long Island City, Queens—his district—for its new headquarters. The senator rankled at “that ridiculous nationwide contest they put everybody through,” with cities scrabbling to offer ever-larger tax breaks and subsidies. (New York eventually offered Amazon $3 billion.) Gianaris became skeptical about the potential economic benefits for his constituents, as well as concerned about Amazon’s power. He fought back hard, criticizing the deal in public and eventually securing a seat on a key regulatory board that allowed him to shut it down.

The episode led Gianaris to sponsor the 21st Century Antitrust Act, a bill that would modernize New York law by pushing its anti-monopoly provisions far beyond consumer protection. The bill, which passed the New York Senate last year and was reintroduced this year, requires companies to obtain regulators’ approval when making mergers over $9.2 million in valuation, authorizes private class-action suits, raises criminal penalties for anticompetitive behavior, and prohibits “abuse of dominance” by companies that control more than 30 or 40 percent of a market, depending on the industry. This last provision Gianaris calls a “game changer”—an abuse-of-dominance standard is unheard of in the United States these days but has allowed regulators in the European Union to score meaningful victories where narrower consumer protection models fall short.

Sooner or later, Gianaris hopes, the federal government will follow what he’s doing in New York. “This is the way our government has always functioned,” he says. “The states can get out in front of the federal government and serve as laboratories to prove that new policies can work.”

Meanwhile, in one of the most David-versus-Goliath battles playing out in the antitrust world, District of Columbia Attorney General Karl Racine is pitting his city of 700,000 against Amazon in a suit that targets core aspects of its business: its control over sellers in its online marketplace and the market power it wields through its extensive distribution network. In both cases, the District’s complaint alleges, Amazon uses its clout to stifle competitors’ access to the market, and in a way that ultimately hurts consumers, not just rival businesses. D.C. is active in the Facebook and Google cases, too, but Racine said he wasn’t afraid to take on the giants by himself. “The District of Columbia has led the way in bringing antitrust enforcement actions against the world’s largest tech companies, including Amazon, Google, and Facebook, as well as local companies whose business practices hurt D.C. residents,” he said in a statement. “While we welcome collaboration with our federal partners, we will not hesitate to use state and local antitrust and competition laws to hold bad actors accountable.”

The road ahead is far from straightforward. Though regulators across America are now taking up their long-neglected mantle, they face 40 years of judicial precedent that narrows most antitrust challenges to an almost meaningless measurement of consumer prices. Though Congress has the power to push back, its action is often slow and incremental. The states can afford to be bolder, however, and attorneys general have some ideas about how to maximize their efforts. History offers some lessons, as well.

First, resources are key. Surveys of state attorneys general in recent years indicate that many employ just one or two dedicated antitrust lawyers, or even none. (Peterson, who’s suing one of the biggest companies in the world, says he has four.) Beefing up their budgets can help them go toe-to-toe with the phalanxes of corporate lawyers on the other side. 

It’s not necessarily a money-losing proposition, either; antitrust suits often pay for themselves through settlements. And just as 19th-century Kansas offered direct incentives to enforce antitrust law, today’s public can better see the value in these cases if antitrust settlements are allocated more directly to victims or to relevant public goods, rather than socked away in states’ general funds.

Second, states may no longer be able to “oust” troublesome corporations by revoking their articles of incorporation. But as Pennsylvania proved through its hospital case, threatening nonprofit charters remains a powerful tool to restrain anticompetitive behavior on the part of large “charities” that act more like traditional businesses.

Third, new laws might be able to move the courts. But so can new arguments. Weiser says he’d like to see an update to the Sherman and Clayton Acts that clarifies that illegal monopoly is more than just price manipulation—it’s the use of market power to crush competition. But Donahue, of Pennsylvania, had other thoughts. “Congress ain’t gonna do squat,” he told me. “You gotta convince the courts. Who is your first witness? You have to go into court and make the case in front of a very smart federal judiciary.”

The best way to do that may be a “shotgun” approach: to bring many lawsuits, advancing a host of novel arguments. And the best place to do that is in the states. Last June, for instance, Ohio again took the lead in antitrust history by filing the first “common carrier” lawsuit against Google. The Republican attorney general, Dave Yost, is arguing that the company is so dominant in internet search that it should be regulated as a public utility. Whether or not he succeeds, the novelty of his argument is what matters: Acting independently, the states will test out ideas that Washington could never dream of.

And finally, if history is a guide, don’t expect it to get better all at once. The 1890 Sherman Act was too broad at first, and for decades it wasn’t enforced except to punish labor unions for organizing. After some states kicked out monopolists, others, such as New Jersey, welcomed them with friendly incorporation rules. And as the nation around the turn of the century started to look toward regulating or breaking up the trusts, monopolists like J. P. Morgan fought back by getting even bigger—too big, he hoped, to regulate. That’s not to say that states are helpless—they aren’t. In fact, they are the laboratories that will synthesize a new generation of antitrust policies and provide the catalyst that pushes the nation—and its highest levels of government—to act.

The post Laboratories of Anti-Monopoly appeared first on Washington Monthly.

On February 28, the Supreme Court will hear West Virginia v. Environmental Protection Agency. In addition to potentially ominous implications for American climate change policy, this environmental case may also give what The New York Times’s Jesse Wegman recently called the Court’s “turbocharged right-wing supermajority” a chance to rework the allocation of power among Congress, the judiciary, and the executive branch. In the near term, a loss for the EPA would likely sabotage President Joe Biden’s vow to slash U.S. greenhouse gas emissions dramatically by 2030. Over time, a hard-right decision could cripple public interest regulation of a kind that has so successfully advanced American health, safety, and prosperity since the New Deal. The conservative justices appear to be pursuing their aims without regard to customary norms of judicial self-discipline. To fully understand their current campaign, however, we need to follow two stories—one about the procedural handling of next week’s case, and the other about the majority’s dubious constitutional vision.

First, the procedure story. In immediate terms, West Virginia v. Environmental Protection Agency arises out of EPA efforts to limit carbon emissions by fossil fuel–burning electrical power plants. In 2014, the Obama administration proposed—and then in 2015 issued—the Clean Power Plan (CPP), accurately described by the White House as setting “the first-ever national standards to limit carbon pollution from power plants.” Together with other administration policies, the plan aimed “to reduce premature deaths from power plant emissions by nearly 90 percent in 2030 compared to 2005 and decrease the pollutants that contribute to the soot and smog and can lead to more asthma attacks in kids by more than 70 percent.” The White House hoped the plan would “avoid up to 3,600 premature deaths, lead to 90,000 fewer asthma attacks in children, and prevent 300,000 missed work and school days.”

In short order, 27 states, 24 trade associations, 37 rural electric co-ops, and three labor unions sued in the U.S. Court of Appeals for the D.C. Circuit to block the CPP. Remarkably, however, some of these plaintiffs also asked for VIP treatment from the Supreme Court. They asked the justices to step in and block implementation of the plan even before a challenge could be argued, much less decided, in a lower court. The Court’s then-five-member conservative majority granted the application over the dissenting votes of the four liberal justices.

As the law professor Steven Ferrey noted, “No party in the matter was able to point to any previous instance” of such a ruling. Nonetheless, the Court granted the stay as part of its so-called shadow docket of procedural rulings—decisions made without full briefing or oral argument—and the majority provided no explanation for its unique stay. Without any public explanation, an unprecedented stay was imposed until the Court of Appeals ruled, and potentially beyond: If a losing party in the Court of Appeals successfully petitioned for further Supreme Court review, the stay would remain in place until the Court also rendered its final judgment.

The new Trump administration was destined, upon taking office in 2017, to imperil Obama’s ambitious climate change policies. Just over two months into his term, Donald Trump issued an executive order directing the EPA to review the CPP and, “if appropriate,” “suspend, revise, or rescind” the rule that the Supreme Court had preemptively blocked. The D.C. Circuit suspended the lawsuit against the CPP until the EPA could conclude its deliberations. Those deliberations took more than two years, during which Trump’s first EPA administrator, Scott Pruitt, was replaced by Andrew Wheeler, a former coal lobbyist. The EPA repealed the CPP on June 19, 2019. The agency said it was scrapping the plan because, its lawyers claimed, the Clean Air Act never authorized its regulatory strategy. In place of the CPP, the Trump-era EPA proposed the much less ambitious Affordable Clean Energy (ACE) rule.

After Biden took office, the EPA informed the Court of Appeals that it would not defend Trump’s ACE rule. It also announced that it would not seek to reinstate the 2015 CPP. That should have been the end of the case: With no ACE being enforced and no new antipollution rule proposed, what was left for a court to review? Yet with its now-expanded right-wing majority, the Supreme Court in October 2021 granted four petitions, consolidated procedurally into one proceeding, challenging the D.C. Circuit’s decision to vacate the ACE—that is, demanding reinstatement of a rule that the government is no longer willing to defend. The justices, it appears, would not be denied their own day in court.

Now, the story on legal doctrine. It’s bad enough that the conservative supermajority seems hell-bent on blocking U.S. climate policy. But the picture becomes even more alarming once you focus on the questions the Supreme Court has agreed to address. One of those questions—the most ordinary of the three—is a straightforward question of statutory reading. (In essence, the question is whether a statutory mandate that the EPA base its antipollution targets on “the best system of emission reduction” permits the agency to induce power plants to adopt solutions that operate beyond each power plant site or confines the agency’s ambitions to measures that can be taken at the plant itself.) The other two are questions that, if answered the wrong way, could cripple American government. One is a constitutional question involving the non-delegation doctrine. The other is a question of interpretive method: Under a newly expanded major questions doctrine, may judges reject reasonable inferences of agency regulatory authority from statutory text if that authority appears to be of extraordinary economic or social significance and the text is in any respect ambiguous?

For purposes of Supreme Court review, the critical part of what the D.C. Circuit panel majority decided in this case—then called American Lung Association v. Environmental Protection Agency—is that the Obama EPA was right and the Trump EPA was wrong. The decision did not turn on whether the original CPP had been a valid implementation of EPA’s statutory authority. The lower court decided only that the statute does authorize EPA to consider off-site measures as well as measures at each plant in setting its standards and guidelines for greenhouse gas emissions. The D.C. Circuit devoted 25 pages of its 147-page opinion to explain clearly and precisely why the text, structure, history, and purpose of the act all support the Obama EPA’s view of the scope of its legal authority.

The wild cards in the Supreme Court’s hand, however, involve non-delegation and the major questions doctrine, to which it is closely related. At its core, the non-delegation doctrine rests on an uncontroversial general proposition, namely, that a separation of powers system assumes that no branch of government will abdicate the powers assigned to it. The president cannot ask the chief justice of the Supreme Court to take over the signing or vetoing of legislation. That’s the president’s job. The judiciary cannot leave the sentencing of individual defendants to a congressional committee. That’s a court’s work. 

What is controversial—and deeply so—is whether a statute granting significant discretionary policy-making authority to an administrative agency represents the routine assignment of an executive task—or a full-scale abdication of Congress’s legislative power. The Court’s conservatives seem ready to treat any statute that vests significant policy-making (as opposed to what they call “mere fact-finding”) authority in administrative agencies as an unconstitutional “delegation.” 

The major questions doctrine is a cousin of non-delegation. It empowers the Court to impose its preferred meaning on any statute that the majority regards as dealing with issues of “vast economic and political significance.” (The implication is that statutory readings that give agencies too much discretion to adopt policies of vast economic and political significance would wind up approving unconstitutional delegations and should thus be avoided.) For example, D.C. Circuit Judge Justin Walker, in his dissent, argued that the CPP exceeded the Obama EPA’s authority because the Clean Air Act does not include “a clear statement unambiguously authorizing the EPA to consider a system of emission reduction that includes off-site solutions or [which] otherwise satisfies the major-rules doctrine’s clear statement requirement.”

Two opinions by Justice Neil Gorsuch are ill omens of what may happen in the current case. One, his dissent in a 2018 case, Gundy v. United States, was joined by Chief Justice John Roberts and Justice Clarence Thomas. In that case, the Court upheld the attorney general’s authority under the Sex Offender Registration and Notification Act to issue rules determining how that act’s registration requirements apply to sex offenders convicted prior to the law’s passage. The other is Gorsuch’s opinion concurring last month in National Federation of Independent Business v. Occupational Safety and Health Administration, which invalidated the Labor Department’s emergency temporary standard on COVID-19. This time, he was joined by Thomas and Justice Samuel Alito. Both opinions are riddled with hyperbole and a historical narrative as shallow as it is one-sided. The COVID decision in which Gorsuch concurred was joined also by Roberts and Justices Brett Kavanaugh and Amy Coney Barrett. That decision deployed the major questions doctrine, without naming it, to give plaintiffs “emergency relief” from the Labor Department’s enforcement of its COVID rule while its legality was being litigated. Such developments don’t augur well for the Biden administration’s regulatory agenda. 

Until now, the Supreme Court has invalidated statutory provisions as unconstitutional “delegations” to the executive branch only twice—both times in 1935. For more than 90 years, the Court has otherwise adhered to a consistent formulation of the doctrine, which is far from demanding. A grant of administrative policy-making authority has been deemed constitutional if the statute in question, soundly interpreted, contains some “intelligible principle” that sets discernible outer limits to the agency’s power. That principle need only be clear enough to enable reviewing courts to determine if agency action pursuant to the statute is or is not within its legally granted authority.

As Chief Justice Harlan Fiske Stone wrote for the Court in a 1944 case, Yakus v. United States, Congress’s authority to define the scope of administrative policy making is pragmatic and flexible: “Congress is not confined to that method of executing its policy which involves the least possible delegation of discretion to administrative officers.” This didn’t represent a radical change in the standard the Court had always used. Based on their careful study covering more than 2,000 federal and state cases decided before 1940, the legal scholars Keith Whittington and Jason Iuliano concluded in 2017 “that the traditional narrative behind the non-delegation doctrine is nothing more than a myth.” Since long before Yakus, they wrote, courts had been applying a deferential standard to legislative grants of executive authority.

Even Justice Antonin Scalia, the modern icon of conservative judging, regarded the non-delegation doctrine as unsuited for judicial enforcement except in the most extreme cases: “Once it is conceded, as it must be, that no statute can be entirely precise, and that some judgments, even some judgments involving policy considerations, must be left to the officers executing the law and to the judges applying it, the debate over unconstitutional delegation becomes a debate not over a point of principle but over a question of degree.”

But the current Court’s apparent disdain for broad delegations overlooks more than the many decades of judicial experience to the contrary. It also ignores the painstaking legal scholarship undercutting the idea that the founding generation regarded broad delegations as inconsistent with the separation of powers system they had just created. A pathbreaking 2021 article by the law professors Nicholas Bagley and Julian Davis Mortenson argued, based on careful historical analysis, that “the Founding generation didn’t share anything remotely approaching a belief that the constitutional settlement imposed restrictions on the delegation of legislative power—let alone by empowering the judiciary to police legalized limits.” On the contrary, “coercive administrative rulemaking was … routine throughout the Anglo-American world” prior to 1787, and “early Congresses adopted dozens of laws that broadly empowered executive and judicial actors to adopt binding rules of conduct.”

Holding the Clean Air Act unconstitutional would be an astonishing arrogation of power. Perhaps for this reason, the conservatives are more likely to express their suspicion of broad administrative policy making through the major questions doctrine. Inducing off-site emission control measures would involve so impactful a major policy change, the argument will run, that Congress could not have intended to authorize it—unless Congress included specific language in the statute unambiguously permitting (or perhaps even requiring) such a policy. 

Yet such a holding would be no less perverse. In 19 pages, the D.C. Circuit explains in detail why that doctrine ought to be given no play in the current case. First, earlier Supreme Court and D.C. Circuit opinions have already recognized “each critical element of the [EPA’s] regulatory authority” regarding air pollutants by stationary sources. Moreover, under Supreme Court precedent, “the issuance of regulations addressing greenhouse gas pollution” was “mandatory under the [Clean Air Act] because of longstanding endangerment findings.” The Clean Air Act also contains limits on regulation, including requirements that the EPA consider such factors as available technology and the cost of compliance, which means that Congress has determined a policy framework for the EPA to follow. In short, “numerous substantial and explicit constraints on the EPA’s selection of a best system of emission reduction foreclose using the major questions doctrine to write additional, extratextual, and inflexibly categorical limitations into a statute” that Congress designed to give the agency the flexibility necessary to keep standards up to date. Finally, the potential impact of an eventual regulatory scheme should not prevent the EPA from using its clearly recognized statutory authority to address the precise kind of problem it was assigned to address. As the Court observed, “Given the number and dispersion of fossil-fuel-fired power plants, any nationwide regulation of their greenhouse gas pollution that meaningfully addresses emissions will necessarily affect a broad swath of the Nation’s electricity customers.”

In addition, an important amicus brief filed by the NYU law professor and former dean Richard L. Revesz, one of the nation’s foremost environmental law scholars, makes a compelling argument that the factors urged by regulatory opponents for triggering the major questions doctrine are unworkable and fail to distinguish the CPP from many other regulations. He shows how the EPA, under administrations of both parties, has relied in the past on approaches similar to those that the agency employed in the CPP. The CPP is not so novel or unanticipated in its use of regulatory strategies that the major questions doctrine should be called into play.

If jurists like Gorsuch or Walker are to be believed, the Constitution was designed to make the exercise of federal legislative authority all but impossible. In Gorsuch’s tendentious Gundy concurrence, he writes that the Framers “believed the new federal government’s most dangerous power was the power to enact laws restricting the people’s liberty.” He cites James Madison’s Federalist No. 48, which cautions against “the enterprising ambition” of a legislative branch that, unless duly checked, may impose to “the same tyranny as is threatened by executive usurpations.” Madison, however, was not arguing against the delegation of policy-making power to the executive branch; he was arguing against allowing an overreaching Congress to take upon itself either executive or judicial power. His worry was not about a Congress assigning policy-making tasks to others, but about a Congress aggrandizing its own constitutional role.

I am a lawyer and a law professor. I don’t purport to know the best way to curb the spread of COVID-19 or reduce the emissions of greenhouse gases from coal-fired power plants. Members of Congress often feel the same way—believing deeply in the existence of serious problems, but finding them hard to address without prolonged, focused engagement by trained professionals. Their statutes are often designed to give the executive branch the flexibility to deal effectively with new and unexpected problems. This is a choice made by elected officials, which they can always amend or otherwise constrain. The idea of congressional supervision is not just high school civics boilerplate: Even in an era of legislative sclerosis, Congress must enact appropriations each year for the executive branch to function. Without rewriting statutes as complex as the Clean Air Act, Congress can prohibit the use of appropriated funds to promulgate or enforce regulatory programs it dislikes. Unelected judges should not take upon themselves the task of deciding whether Congress has already deliberated enough to justify agencies carrying out responsibilities that they have already been assigned.

Americans will know by June if the Supreme Court’s right wing is going to use West Virginia v. Environmental Protection Agency to help entrench a U.S. Chamber of Commerce–friendly view of the separation of powers. So far, the Court’s treatment of abortion, voting rights, free exercise, and presidential removal power suggests that yet more determined strides may be in the offing. I hope I am wrong. I fear, however, that the genuine complexity of separation of powers issues, along with what Jacob Hacker and Paul Pierson have justly called “American amnesia” with regard to the government’s regulatory achievements, together lay the ground for the Court—without a well-earned public revolt—to undermine the capacity of the elected branches of government to advance the public interest through sensible regulation

When Alexander Hamilton referred to the newly designed federal judiciary as “the least dangerous branch,” he was relying on the Court’s relative institutional passivity. He famously wrote, “The judiciary … has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” But the Court’s hubristic right wing now possesses both the will and a craving to participate in the “active resolution” of public controversies. As long as they can count on ideologically simpatico plaintiffs to file lawsuits against public interest regulations, the justices can forestall progressive policies by blocking change until the litigation formally reaches them for ultimate judgment. When an agency points to statutory language that, fairly interpreted, allows it to make policies costly for industry, the Court can bar the agency by insisting that Congress needs to have granted its authority with more meticulous language. 

The founding generation envisioned no such juristocracy. It is certainly not in the interests of 21st-century Americans to embrace one now.

The post The Supreme Court Will Consider Greenhouse Gas Emissions. Be Afraid. appeared first on Washington Monthly.

In a world of skyrocketing college tuition and spiraling student debt, the University of Texas-Rio Grande Valley (UTRGV) is resolutely affordable. 

Located in Edinburg, Texas, an hour from the U.S.-Mexico border, UTRGV is a new school formed in 2013 from a merger of new campuses and legacy institutions. It enrolls a student body that is more than 90 percent Hispanic and heavily first-generation. The school’s mascot is the workingman Vaquero, Spanish for “cowboy” or “cattle driver,” who dons full ranching attire, including gloves, scarf, and boots. Designed by students, the mascot’s costume is full of subtle messaging, like blue-stitching on the vaquero’s boots to symbolize the Rio Grande river joining Mexico and the U.S.

More than 60 percent of students at UTRGV have incomes low enough to qualify for Pell grants. Yet, says President Guy Bailey, “Over half of our students who are undergraduates don’t pay any tuition or fees. Most of our students who qualify for Pell grants pay nothing.”  

In addition to Pell, the state-funded TEXAS grant provides up to $5,195 per semester to in-state students attending Texas public universities. UTRGV closes the gap with its own Tuition Advantage program, which covers remaining tuition and fees for families with incomes up to $100,000 (a cap set to rise this year and one met by few families in this poor region). The school guarantees tuition levels for four years, so there’s no “surprise billing.” In 2019-20, the average net cost to attend was $917—less than 12 percent of the $7,907 price tag for flagship UT-Austin. 

“With first-generation low-income students, you have to start with finance,” says Bailey, who was himself a first-generation student. “A lot of kids don’t graduate because they just run out of money.” 

The press tends to focus on the failures of higher education, including especially the low graduation rates, poor outcomes, and massive debts at schools with large numbers of low-income enrollees. Yet hundreds of post-secondary schools—like UTRGV—are doing right by their students, providing a quality education at a reasonable price. Institutions like these,the majority of which are regional public colleges and minority-serving institutions, are also addressing income inequality by creating economic opportunity, as a new report from the think tank Third Way concludes. 

According to the Washington, D.C.-based think tank, UTRGV ranks among the nation’s top five schools for promoting economic mobility. The four others are all in California and Texas, with sizable Hispanic enrollments:  California State University-Los Angeles, California State University-Dominguez Hills, Texas A&M, and California State University-Bakersfield. (All of these schools also rank highly in Washington Monthly’s College Guide, which eschews prestige-based metrics in favor of economic mobility and national service.) 

Third Way’s report, authored by Senior Fellow Michael Itzkowitz, ranked the nation’s four-year colleges based on the proportion of students receiving Pell grants, the cost of attendance, and students’ expected earnings after graduation. What emerged was a list of institutions that both enrolled high numbers of low-and moderate-income students and provided them a good return on their investment. What might be surprising, says Itkowitz, is how poorly some of the nation’s best-known colleges perform on this measure. Harvard, for instance, ranks 847, while Stanford ranks 548. Many state flagships also rank poorly; the University of Wisconsin-Madison, for example, is 701^st for economic mobility, while the University of Michigan is at 535. (UT-Austin ranks 347.)

“While the fortunate few who get into these institutions are very, very likely to receive a strong economic return, there’s just such a limited number of low-and moderate-income students who attend these institutions in the first place,” says Itzkowitz. At Harvard, for instance, just 11.6 percent of undergraduate students are Pell recipients, as are only 16.7percent of students at Stanford. 

The Cal State schools atop Third Way’s rankings, on the other hand, serve majorities and super-majorities of Pell students. In fact, says Itzkowitz, the top ten schools in his analysis enrolled more than 95,000 Pell students in 2019-20—more than six times the total enrolled by the nation’s most rejective (i.e., “selective”) institutions. “While it’s common to see your private elite Ivy-League schools mentioned in news stories, it’s other schools that are actually delivering on the promise [of economic mobility] for exponentially more students,” says Itzkowitz.

Historically Black colleges and universities (HBCUs) and Hispanic-serving institutions also dominate Third Way’s rankings, which Itzkowitz attributes to these schools enrolling large numbers of low-income students and, in some states, benefiting from generous state funding. 

North Carolina’s Elizabeth City State University (ECSU)—the top-ranked HBCU in Itzkowitz’s analysis—is one of three schools designated under the state’s tuition subsidy program, NC Promise. In-state students attending NC Promise colleges pay just $500 in tuition per semester, while out-of-state students pay $2,500. In contrast, in-state tuition at the flagship UNC-Chapel Hill runs $7,019 and $34,882 for out-of-state tuition.

Affordability is, however, only part of the equation. The top-ranked schools in the Third Way report also excel in helping their graduates land well-paying jobs, which university leaders attribute to their schools’ strong ties to their communities and a deep understanding of their students’ needs. UTRGV President Guy Bailey, for instance, says his students receive extensive academic advising services (often from former first-generation students) and access to work opportunities on campus. (“If you can work on campus rather than going to McDonald’s or Walmart or something like that, we can work with you better to ensure that you can get your classes and work done,” Bailey says.) As one result, more than 80 percent of first-year students return for their second year, putting UTRGV near the top in the University of Texas system for student retention. 

ECSU, meanwhile, works with local, regional, and national employers, so students have a pipeline into jobs the minute they graduate. For example, the school’s aviation science program, which is unique in the state, entered a partnership with United Airlines in 2020 that has already placed multiple graduates. “They’re not just looking for my flight students,” Chancellor Karrie Dixon told New America Foundation’s Kevin Carey at an event last October. “They’re looking for students in accounting and finance and business. … They’re looking at the entire operation at United Airlines and having our students have opportunities for employment.”  

The presence of schools like UTRGV and ECSU is great news for higher education and lower-income students. “There are a lot of institutions that aren’t featured in mainstream media that are serving students extremely well,” says Third Way’s Itzkowitz. 

On the other hand, the continued dominance of a handful of exclusionary schools in popular college rankings and in Washington policymaking is worrisome. Affordable, high-quality schools might not continue to get the resources they need to sustain their work. Students enamored of brand-name schools might overlook the excellent but unsung institutions in their own backyards, and other institutions might miss valuable lessons about how to improve their practices. Ideologically driven battles over the admissions criteria and campus culture of elite schools obscure the bigger issues the majority of America’s students need to get ahead. Far too many schools that serve low-income and first-generation students aren’t like UTRGV or ECSU. At nearly a third of the nation’s colleges, more than half of students end up earning less than a high school graduate, according to a new report from the Georgetown Center for Education and the Workforce. 

But the tide could be turning. In addition to alternative rankings like the ones produced by Washington Monthly and Third Way, newly announced Carnegie Classifications for higher education institutions will also reflect schools’ performance on social and economic mobility. Measuring what matters could ultimately improve everyone’s game and bring about badly-needed reform. 

 “American higher education needs to restructure itself, understanding that its past is not going to be its future,” says UTRGV President Guy Bailey. “We have to rethink what we do, and I think you start with students and what they need.” 

Higher education would do well to follow UTRGV’s example. 

The post Near the Mexican Border, Texas University Uses Value and Smarts to Help Students Stay Enrolled appeared first on Washington Monthly.

The degree to which Russia’s brutal invasion of Ukraine, and Ukraine’s brave resistance, is scrambling the global order is hard to exaggerate. It has reenergized the NATO alliance, drawn Pacific Rim democracies like Japan and Australia into the fight, and deepened Russia’s dependence on China. At home, it has boosted Joe Biden’s poll numbers and forced Putin apologists like J. D. Vance to backpedal. It has also caused citizens around the world to cheer for an embattled liberal democracy fighting dictatorial aggression while giving younger Americans reason to rethink their deep distrust of U.S. global power. 

Nowhere has the change been more profound than in Germany. For a decade and a half under then Chancellor Angela Merkel, Berlin deliberately increased its dependence on Russian fossil fuels to support its profitable exports while underinvesting in its military. In late February, Merkel’s successor, Olaf Scholz, reversed those policies. He announced that he would halt a new gas pipeline from Russia, send antitank and antiaircraft weapons to Ukraine, and increase the German defense budget by a staggering €100 billion—which by some estimates would make Germany the third-largest military spender in the world (probably not what chess master Vladimir Putin had in mind when he launched the invasion). Astonishingly, the German public overwhelmingly rallied to the new chancellor’s about-face strategy.

Biden is now positioned to make a similarly bold move. His administration has ably, even brilliantly, quarterbacked the U.S. and allied response to Russia’s aggression, including sending weapons to Ukraine, using intel to expose Putin’s next moves, and organizing sanctions that are crushing the Russian economy. Whether these actions will be enough to save Ukraine while avoiding a broader war remains to be seen. But a confluence of world events and shifts in public opinion gives Biden an opportunity to turn the energy behind the allied efforts into a more permanent set of economic arrangements—as ambitious as those the United States established after World War II.

As retired General Wesley Clark and others have argued in these pages, Biden should call for the creation of an “Atlantic Alliance” beyond NATO: a new, structured trade relationship between the United States, the European Union, and the United Kingdom. While they have their differences, all three boast advanced economies and a shared commitment to liberal values—like representative democracy, equal opportunity, privacy, environmental stewardship, and the rule of law. All three increasingly recognize that those values are threatened by Russia and China and by practices they themselves have condoned, including overreliance on vulnerable supply chains and corporate monopolization that boxes out entrepreneurs and weakens wages. 

What’s needed are binding agreements between the U.S., the EU, and the U.K. over antitrust policy, labor rights, climate change, technology transfer, and other pressing matters. These agreements would be designed with two aims in mind. First, raise middle- and working-class wages on both sides of the Atlantic, the better to undercut domestic support for illiberal politics. Second, create a trading bloc—together, the U.S., EU, and U.K. make up 45 percent of global GDP—that could challenge China and other authoritarian regimes. If those countries want access to Atlantic Alliance markets, they must change their ways. If not, we will have protected ourselves from their economic predations and broadened our sourcing of vital supplies.

An Atlantic Alliance could take the form of a comprehensive treaty or trade pact. But with time of the essence, a better route would be a series of agreements on discrete issues. An example is the deal the administration struck with the EU in October. Both sides agreed to lower tariffs on steel and aluminum imports and, tellingly, to develop standards to measure the carbon emissions involved in their production. “Dirty” steel from China would be excluded from the U.S. and EU markets. Countries that clean up their act could gain access, as the U.K. is now negotiating to do. 

Biden has yet to articulate a vision for something as big as an Atlantic Alliance. But there are signs that his administration is moving in that direction. Last September, it created a new organization, the U.S.-EU Trade and Technology Council, for American and European officials to hash out agreements on everything from artificial intelligence to export controls with “a particular focus on inclusive growth for middle class and lower income people on both sides of the Atlantic.” The TTC would be a fine venue for the two sides to negotiate an Atlantic Alliance. And its next scheduled meeting, in May, would be an ideal time for Biden to announce the effort. 

If he did, I suspect he would receive the kind of broad public support that Olaf Scholz has received. American politics might be radioactively partisan right now. But look beneath the surface, as Gabby Birenbaum and Phillip Longman do in their cover story for this issue, and you’ll see that there is substantial desire in both parties to break from the free trade and lax antitrust enforcement policies of recent decades—policies that have decimated heartland towns and shrunk the middle class. Add to that the extraordinary bipartisan consensus for Ukraine’s struggle, and you have a moment where big things can happen. 

The post The Case for a New Atlantic Alliance appeared first on Washington Monthly.

State legislators are like ants on a log. There are too many of them and they are too small, running around too fast to recognize as individuals, let alone track their efforts. Even if the log is in your backyard, why bother paying attention? Given the typical statehouse task—dragging bits of legislative leaf around—only the most dedicated political junkies even bother to try.

Occasionally, though, one leader plants himself in the center of the action long enough to offer a pathway not just to understand what’s going on in one colony, but also to illuminate the general calamity poisoning our increasingly toxic national political culture: the money, influence, rule bending, and self-dealing that deform government at every level.

Meet Michael J. Madigan, the tight-mouthed enigma at the center of the Illinois legislative anthill for more than a third of a century. Nicknamed “the Sphinx” for his expressionless silence and windblown longevity, Madigan was the last operative drive shaft from the old Daley Democratic machine—forged by Richard J. Daley, Chicago’s infamous mayor from 1955 to 1976— where clout was built on a system of mutual support: You vote the right way, and I’ll make sure your son gets a park district job. Throughout his career, Madigan was chairman of the Democratic Party of Illinois, committeeman of Chicago’s 13th Ward, and speaker of the Illinois House for 36 years, the longest-serving leader of any legislative body in American history.

Reviled by Republicans as “the center of all evil in state government,” Madigan endured while governors came and went. When Republican Jim Edgar became governor in 1991, Madigan didn’t return his phone calls for months. Madigan didn’t need him; he was served by a patronage army of 400 drones beholden to him for jobs, raises, and promotions, who would leap to campaign, knock on doors, and buttonhole commuters to sign petitions. (Or, in one infamous ploy, the opposite: hectoring residents of Madigan’s district to sign affidavits retracting their signatures on the nominating petitions of a 19-year-old who dared run against the state’s most powerful politician’s chosen alderman. The lad had no chance of winning, but so ruthlessly had the speaker’s operatives clawed signatures back that some 2,600 voters agreed to renounce signatures they had never given.)

Madigan was an accepted reality of life in Illinois, like the weather, or, more accurately, like God, a mysterious force in His Heaven, spinning works and mysteries.

Then it all changed.

First, the #MeToo revolution of 2018 rattled the Madigan organization, taking down his longtime chief of staff, Tim Mapes, and top aide, Kevin Quinn, amid accusations that Madigan didn’t do enough to stop them from sexually harassing their female colleagues. Sunlight started pouring through the cracks. Madigan gave the first deposition in his life. The U.S. Department of Justice’s federal investigation into Madigan’s alleged corruption circled nearer. For years, Madigan had used an electric utility company, Commonwealth Edison, as a “crony job service” that issued direct payments to Madigan’s allies, such as the $4,500 a month it funneled to the Cook County recorder of deeds, Ed Moody, for “consulting.” In return, Madigan advanced legislation that was favorable to the utility. He would also steer business to his private law firm, including clients who had business before the state.

These machinations had long been dirty secrets around Springfield, but now they were coming into full view. Illinois House Democrats, in November 2020, heard the hounds baying in the distance and balked at handing Madigan the speaker’s gavel—a once-unimaginable blasphemy. Forced to surrender the speakership, Madigan passed the baton over to his handpicked successor. Even after he resigned from the House, it seemed that Madigan might exit with his monumental dignity, secrets, and personal freedom intact.

Instead, in early March, the DOJ indicted Madigan on 22 federal counts of racketeering and bribery, accusing him of running “a criminal enterprise whose purpose was to enhance Madigan’s political power and financial well-being while also generating income for his political allies and associates.” The maximum sentence for the charges against him is 20 years in prison.

Madigan pleaded not guilty.

Did Madigan, 79, finally slip up in his senescence? Did he become careless, or just have the bad luck to do the usual legislative horse trading into a federal wiretap? The question snakes through a highly readable new book, The House That Madigan Built: The Record Run of Illinois’ Velvet Hammer, by Ray Long, himself a Springfield fixture, covering the Illinois state capital for the Chicago Tribune, the Chicago Sun-Times (where we were colleagues), and elsewhere.

Long was on hand to notice the distinctive way Madigan held the speaker’s gavel when he assumed power in 1983. No percussive slams of his predecessors. Rather, he wrapped his fingers around the barrel and tapped the handle, quietly.

“This is a new era,” Madigan purred.

Not really. More like the same old era prettied up to pass through the porous barrier of ethics laws. Creativity was required. Madigan couldn’t just hand out government jobs to reward his pals. That wasn’t done openly anymore. So ComEd would do it for him, allegedly. Madigan got loyalists everything from work as meter readers and summer internships to a seat on the utility’s board.

Long presents the central question that legislators and lobbyists alike struggled with: “What does the speaker think?” While neither Long nor his readers have ESP, we can surmise what Madigan thought by what he did.

Three main currents: First, Madigan considered Chicago crucial, for its own right and as the economic engine that drives Illinois. He thwarted efforts to strip control of O’Hare and Midway airports from Chicago and give it to a regional authority and kept Illinois tax dollars flowing to the Windy City. While it would be an exaggeration to suggest that Chicago would have become Detroit or Cleveland without him, the fact is, it didn’t, and Madigan helped.

Second, he thought the legislature should be its own independent, well-disciplined power, coequal to the executive branch and the courts. While some legislative bodies become rubber stamps—hello, Chicago City Council—the legislature mattered under Madigan.

Finally, he believed that Illinois should be reserved exclusively for the use and enjoyment of the Democratic Party. Indeed, the state became a blue island in a sea of red, jammed between Indiana, the Mississippi of the Midwest; Missouri, where Donald Trump beat Joe Biden by 15 points; Iowa, which has more cattle than people; and Wisconsin, where Scott Walker’s brand of anti-union revanchism found alarming success.

This was done, in part, by “extreme” gerrymandering. Madigan redrew the state maps in 1981, 2001, and 2011. For all the horror that Dems rightly feel about current GOP efforts to undermine the mechanics of voting, no ballot limitations surpass the feats of creative cartography carving safe havens for Democrats and, when absolutely necessary, ghettos where Republican voters can have their say.

Even after the threat to our elections was made all too clear, Illinois Democrats carried on in October, dividing the state into 13 strongly Democratic districts, three strongly Republican seats, and just one highly competitive district.

Beside the rank hypocrisy, there is another cost, laid out in perhaps the most reverberating passage in Long’s book, when Barack Obama, who served as a state senator alongside Madigan, travels to Springfield in 2016 to warn how gerrymandering—fewer than 10 percent of House districts nationwide are competitive—is dangerous to democracy. When the districts become less competitive between Democrats and Republicans, the primaries gain more currency, where turnout is lower and extremist candidates can take root. As a consequence, Obama said, “our debates move away from the middle, where most Americans are, toward the far ends of the spectrum, and that polarizes us further.”

Not all of Long’s book echoes with such significance. There is much on raising state taxes and grappling with the Land of Lincoln’s pension crisis, complex knots of alliances untangled, and motivations parsed.

A few chapters are set pieces, capturing the vicissitudes of Illinois politics. There is the drama of June 30, 1988, as Republican Governor Jim Thompson joins Madigan to try to fund a new ballpark for the White Sox when the team is all but on a plane to Florida. The deed had to be done before midnight, when a change in the legislature’s makeup would doom the effort. But Madigan “made time stand still”—literally. He stopped the clock at mid- night so that he and Thompson could twist arms while opponents sang that “Na na na na / Na na na na / Hey, hey-ey, goodbye” song that Sox fans use to jeer opposing pitchers off the field.

The episode is so much fun, with that near-biblical stopping of the sun, that it’s possible to overlook—puff away the obfuscating fog of fandom—that government officials were bending the law to put public money into the pockets of a private business.

Despite these moments of drama, at the end of Long’s book the Sphinx remains a cypher. Does he have friends? Hobbies? An interior life? Long never bothers to wonder. Robert Caro he is not. The best Long can do is observe that Madigan “put winning above ideology. He demanded fanatical loyalty and got it. He outworked, outmaneuvered, and outlasted whoever got in his way.”

For so long, it seemed like forever. And then it was over—except, of course, for the pending trial.

Which brings us back to the ant world, where Madigan traversed for so long, and where each colony has only one leader, served by an army of faceless workers. As humans, we’re supposed to do better in our social hierarchies. Indeed, in government, we’re supposed to never serve one man or woman but rather that noble and old-fashioned concept of the “common good.” But as Ray Long’s valuable new book points out, one savvy politician can still skew the entire system to their bidding, for years and years—so long as they have the ingenuity, and the enablers, to pull it off.

The post Michael Madigan: The Man Who Ran Illinois appeared first on Washington Monthly.

Thirty years ago—on Christmas Day in the Western calendar—the Soviet flag was lowered from the Kremlin and replaced with the Russian tricolor. The USSR officially ceased to exist the following morning, putting an end to the Cold War struggle between East and West, Communism and capitalism, and—allegedly at least—despotism and freedom. Pundits proclaimed the end of history: The big questions were answered because liberal democracy had triumphed. A globalized world of free markets and ephemeral boundaries would be benevolently presided over by the United States, the sole remaining superpower, in a unipolar world in which the seeds of nationalism and dictatorship would find little purchase.

Those bold statements, it turned out, were premature. Now Russia is again a dictatorship, invading its neighbors and threatening the world with its nuclear arsenal. The American Republic narrowly survived a violent coup attempt just one year ago, while liberal democracies remain under siege throughout the world. As it turns out, there are plenty of other forces apart from global Communism that can push nations toward authoritarianism. From the disorienting effects of an increasingly globalized economy, large-scale migration flows, and a financial crisis that nearly brought down the world economy, populism, xenophobia, and nationalism have taken root once again. In Hungary, Brazil, India, the Philippines—the list goes on—autocrats have been on the rise, and Americans have reason to fear that the next presidential election could precipitate the end of the American experiment.

In February, the Economist Intelligence Unit released its 16th annual survey of the state of democracy worldwide. For the second year running, it had hit a record low—a rate of deterioration not seen since the aftermath of the 2008 economic crisis. Only six in 100 of the world’s people now live in what the EIU would categorize as “full democracies,” and the U.S. is not among them, ranking as a “flawed democracy” for the second year due to its dysfunctional political culture and poorly functioning government. 

The world’s ongoing slide into authoritarianism has generated a frantic effort among political scientists, historians, and national security experts to identify the causes and possible solutions. Over the past four years, several books have been published that diagnose a deadly disease but offer only the most rudimentary treatments.

Now Yascha Mounk, a political scientist at Johns Hopkins University and a contributing writer at The Atlantic, has a new book that delves more deeply into solutions than prior scholarship. His ambitious effort will help jump-start serious conversations about how to rescue the long-standing democracies of “the West,” even if some of its central arguments don’t quite hit the bull’s-eye, especially when the target is the U.S. itself.

T

he Great Experiment posits that one of the main reasons so many liberal democracies are in crisis is because they have become far more ethnographically diverse in recent decades, a development that has undone the once-explicit ethno-nationalist self-conception of countries like Sweden or Germany and shattered previously dominant groups’ control over the Netherlands, United Kingdom, United States, and Canada. “Their transformation is owed to the unforeseen and unintended consequences of policies that had objectives unrelated to the ultimate outcome,” Mounk notes. In 1945, fewer than one in 25 U.K. residents were foreign born; now it’s one in seven. Sweden was almost completely homogenous; now one in five residents has non-Swedish roots. In the middle third of the 20th century, the U.S. severely limited immigration from outside northern Europe; today, four-fifths of legal immigrants come from Asia or Latin America. The “Great Experiment” in the book’s title is the effort to sustain liberal democratic societies that are no longer dominated by one ethno-cultural group.

Mounk, to be clear, supports multiculturalism. His understanding of how it can thrive within various countries is contingent on a shared patriotism that exists above cultural cleavages and serves to hold a diverse democracy together. This is a challenge, he explains, because of the evolutionary psychology of Homo sapiens. Thomas Hobbes’s observation in Leviathan that human life before governments came along was a brutish war of every man against every man formed the building block of a lot of political science and international relations theory, but it’s verifiably false. We’re social creatures who are hardwired to form and join groups—witness middle school, sports fandom, or the Yugoslav civil war—and to think one’s own group is better. In a state of anarchy, human life might be “nasty, brutish, and short,” but it would be because of wars of every band against every band, as most every work of post-apocalyptic sci-fi suggests. 

Mounk’s thesis is that it’s no accident that, until recently, democracies have all been overwhelmingly dominated by one national group, usually defined by race and ethnicity. Most examples of peaceful multiethnic, multicultural societies—the Habsburg and Ottoman Empires, for instance—were decidedly undemocratic monarchies. “If you are the subject of a king or emperor, the relative number of people in your own group does not directly impact the laws you have to follow,” he argues. “So long as you trust the monarch to tolerate your community, you can look upon an influx of people from a different ethnic or religious group with relative equanimity. If you are a citizen of a democracy, by contrast, the relative number of people in your own group directly impacts your ability to shape political outcomes.” 

In other words, if everyone ascribes to ethno-national groups and your group is losing its numerical superiority, it’s a threat to your group and evolutionary psychology has you primed to freak out about it.

There’s something to this, at least in European nations that previously thought of themselves as the land of such-and-such people (the Swedes, Germans, Hungarians, Dutch, and so forth). In recent years, European right-wing authoritarian movements have risen on negative public reaction to new waves of immigrants or even potential immigrants, from Germany’s AfD to Hungary’s Viktor Orbán. The U.K. left the European Union—risking its own dissolution—partly because a majority of residents of England (but not Scotland or Wales) felt that England’s identity was being washed away by the presence of “Polish plumbers” and other EU nationals. But were these developments really triggered by German or Hungarian or English people’s fears that they’d soon be literally outvoted by “foreigners”? I don’t see a lot of evidence of that. 

Rather, there’s been a reaction to a perceived dilution of the shared norms, values, and folkways that traditionally defined membership in the “national” group, a nativist populism that also sees outsiders as competitors with working-class people for jobs and opportunities. “England is becoming less English,” they say. “Hungary must be for the Hungarians,” the Hungarian right insists, even though migrants have made it clear they’re only passing through the place on their way to western Europe. I’d posit that the reason liberal democracies are experiencing these tensions is because liberal democratic regimes are exactly the places to which people want to emigrate. And humans in undemocratic countries are at least as susceptible to calls to purge the nation of out-groups, from Communist-era Bulgarians expunging their centuries-old Turkish enclaves to German popular participation in the Holocaust.

It’s harder to cleanly track Mounk’s thesis to the U.S., primarily because definitions of who we are, who belongs, and what we stand for have always varied considerably by region. We were colonized by rival Euro-American projects with distinct ethnographic, religious, and political characteristics, each of which spread over its own swath of the continent. What makes someone “American” means one thing in New England, another in the Deep South or the (originally Dutch) area around New York City, and something else entirely in the Spanish-settled Southwest. Mounk correctly points out how much more diverse the U.S. has become since immigration was deracialized by the 1965 Immigration Act and our movement toward becoming “majority-minority” by the 2040s, even as he deftly picks apart the easy assumptions people make about what that will mean for the partisan balance of power. 

But it won’t shock you that I, the author of a book on U.S. regionalism, will counter that the real “group-based” fear driving our country apart is the same one that drove the creation of our federal system in the 1780s and the Civil War of the 1860s. It’s the fear, in a federation of very different regional cultures, that the opposing regional bloc is going to take control of said federation and use the awesome power of the state to force you to live like them. It’s what the conservative legal scholar David French warned about in his Divided We Fall: that “geography plus culture plus fear” is leading us toward constitutional crisis and secession. “At this moment in history, there is not a single important cultural, religious, political, or social force that is pulling Americans together more than it is pushing us apart,” French noted, and the differences between rapidly secularizing and deeply religious regions of the country tower over those on immigration.

Setting this premise aside, there is much to value in The Great Experiment, which takes on the difficult task of developing strategies to shore up liberal democracies in a globalized age. Mounk rightly notes how essential it is that we succeed, because the alternatives are horrific. In power, ethno-nationalist regimes often turn to ethnic cleansing, forcing citizens from out-groups from the country (see the Turkish-Greek population exchanges of the early 20th century) or simply killing them (in the Bosnian conflict, for instance). Illiberal democracies might form, denying the individual rights of members of out-groups in an effort to force their assimilation. It’s a short step from there to ending democracy altogether. But how?

Mounk surveys the existing options for diverse democracies and finds them lacking. When it comes to immigration, the old “melting pot” model of total assimilation to the norms of the dominant group is illiberal and inappropriate in nations with increasingly mixed cultural origins. The “salad bowl” model of many cultures sitting side by side is an improvement, but as practiced in many countries has fostered fragmentation by discouraging pride in a common whole and, in some cases, tolerance for cultural practices that trample the rights of individuals, like childhood genital mutilation. It can lead, Mounk writes, to a world in which “residential segregation is the norm, friendships between members of different groups are rare, kids who hail from different countries and cultures go to separate schools, communities barely tolerate the idea that their children might marry an outsider, and many of their members are unfree to make their own choices.”

He’s also skeptical of the trend toward focusing on the rights of groups rather than individuals. Lebanon, a country shared by Christians, Sunnis, and Shias, tried this after gaining independence from France in 1943, granting these groups the right to govern their own affairs in everything from marriage and divorce to education and inheritance. It turned out badly for individuals who didn’t want to live by their group’s norms—because they fell in love with a member of another group, for instance—or didn’t belong to any of the three groups in the first place. Lebanon as a whole suffered because it required citizens to think of themselves as different from one another and “put massive obstacles in the way of anybody who seeks to build close ties with members of other groups.” The country eventually fell into a bloody and protracted civil war.

Mounk worries about the efforts of certain culture warriors on the left who also seek to remake society not through the protection of individual rights and equality—the core value of classical liberalism—but, rather, through the protection of the rights of racial and identity groups. He rejects this school’s arguments that presume that members of one group can never understand the experiences of another and therefore must always defer to their demands and point of view; that cross-cultural appropriation is dangerous and undesirable; and that policies should be enacted “that make the receipt of specific forms of aid conditional on membership in a particular ethnic group.” While he sympathizes with their goal of tearing down past hierarchies and modes of oppression, Mounk fears that these policies are counterproductive and nihilistic about the abilities of individuals to empathize with one another across the identity group boundaries. He’s certainly correct in noting that universal and class-based policy interventions are widely popular with the American electorate, but those that privilege one race or ethnic group over the others are not and foment division and distrust. 

He also argues that people have always borrowed from and been inspired by other cultures, and that such sharing helps bind people together in a sense of common humanity and purpose. Thus, governments should recommit to the essential project of classical liberalism—protecting the fundamental rights of the individual. Furthermore, he says democracies “should double down on inspiring empathy” and not give up on mutual understanding. “Men are capable of fighting for a society that treats women fairly because they believe that anything else would violate their own moral standards,” he writes. “Many whites want to make their democracies better for members of ethnic minorities because of their own aspirations for the kind of country in which they seek to live.” 

Mounk’s solution, laid out over the last third of the book, is a modified salad bowl—a tossed one, if you will—where people can retain their group identities and do their own thing, but in an environment that encourages openness, curiosity, interaction, and a sense of shared purpose. His metaphor is a well-functioning public park—Brooklyn’s
Prospect Park, to be precise—open to everyone and home to diverse activities, but also a vibrant space for cross-group and cross-cultural encounters. The state’s role is to “ensure that some citizens don’t start to harm others, to intimidate people they dislike on account of their opinion or identity, or to control those who happen to be born into their own communities.” Individuals are free from both state oppression and coercion by people outside or inside the group they started in. It’s a society, Mounk writes, that’s “bustling yet peaceful and heterogenous without being fragmented.” 

Mounk is concerned about the trajectory of Western democracies generally, and this model might well provide food for thought for Germans, Swedes, or Italians, especially with Putin’s 1930s-style aggression reminding Europeans what authoritarian ethno-nationalism can lead to. It’s a lot less clear how it differs from what we already try to do in the United States. The unstated implication is that we need to do what we’re already doing—but better.

Mounk offers some strategies about how to get there, positing that cultural tensions can be diminished or bolstered by the behavior of the state, institutions, and other groups with which people interact. Encouraging a cooperative environment is key, Mounk persuasively argues, and he puts forward a number of policy prescriptions. 

First, secure broad-based prosperity by fighting monopolies, instituting progressive taxation policies, and investing in public education, universal health insurance, and other basic welfare programs. After all, it’s no surprise that these cultural tensions have come to the fore in an era of global financial crisis, austerity, and COVID-19. But when the state can guarantee financial security and more robust opportunities, people are less likely to worry that members of “other groups” are taking too much of a finite pie. Second, have robust laws to stop discrimination based on race and religion and entitlement programs that benefit citizens regardless of their ethnic or racial identity. Third, enact ranked-choice voting and anti-gerrymandering laws that help temper polarization in our legislative bodies while passing automatic voter registration and ensuring widespread voting locations to ensure inclusive elections. Finally, in our own lives, look to build bridges to other groups, to model a more cooperative future. 

Mounk admits that this is a tall order and success is by no means guaranteed, but he also points to reasons for optimism. On the whole, the U.S. and other liberal democracies have become more inclusive, tolerant, and just over time. “Our countries are capable of integrating newcomers, of building a common bond with people who do not share the same race or religion, and of embracing new national narratives,” he concludes. “The future need not consist of a pitched battle between different demographic groups.” 

Amen to that. But getting the United States there is going to require real leadership. One of our major political parties is no longer clearly committed to liberal democratic norms, and its once and possibly future president has been allied with Vladimir Putin, not the North Atlantic Treaty Organization. As I argued last year in this magazine, we’ve lost our sense of shared purpose, our national narrative of who we are, who belongs, and where we’re going, which has left an opening for the American ethno-nationalists who have stalked the republic since its formation. President Joe Biden has made some initial steps in his speeches denouncing the January 6 coup and those who continue to support it, but there needs to be a much broader effort, including civil society, educators, and state and local leaders, to stand up for the national mission set forth in our opening statement as a people, the Declaration of Independence, with its commitment to the inherent equality of humans and their right to life, liberty, and representative self-government. Stripped of such a narrative, we’re just a Balkanized federation of mutually suspicious regional cultures who don’t see eye to eye on much of anything. We’re a park in which each section wants a different set of rules.

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The Supreme Court of late has radically undercut laws protecting voting rights, reproductive health, and limits on religion’s role in the public sphere. Less visible to many Americans, it has also substantially weakened our ability to regulate business and check the growth of corporate monopolies, thereby abetting growing extremes of inequality.

For some of us, the answer is to change the judges, limit their tenure, or expand the Court to counteract the pernicious influence of the reactionaries currently serving. I was a member of President Joe Biden’s Supreme Court Commission, which studied such reforms and support all of the above. But Americans should also recognize that the problems with the Court go far beyond just who is on it and their terms of service. 

In their brilliant new book, The Anti-Oligarchy Constitution, Joseph Fishkin and William E. Forbath challenge the prestige and legitimacy that today’s liberals still largely ascribe to the Court as an institution. Liberals learned to revere the Court’s role in American society in the mid-20th century when, starting with Brown v. Board of Education, it began a string of decisions that established constitutional guarantees of fair treatment for Black people, women, and other historically marginalized minorities. But along the way, Fishkin and Forbath argue, liberals began embracing two propositions that reformers throughout most of American history never ascribed to and that frustrate progressive change today. 

First, we have come to believe that constitutional law is a narrow, technical field properly controlled by elite legal experts. Politicians and activists pitch their causes to the courts and accede to letting Supreme Court justices, as opposed to democratic processes, ultimately decide what is and is not constitutional, whether it’s a law mandating vaccination or one limiting marriage to members of the opposite sex. 

Second, we adhere to an interpretation of the Constitution under which Congress operates under no constitutional requirement to advance goals, such as equality of opportunity or a broad, prosperous middle class, that are necessary to the functioning of a healthy democratic republic. Today’s liberals, for example, argue that the Constitution permits the federal government to mandate that workers and their employers contribute to the Social Security system, and we seek to appoint judges who agree with us. But few imagine that the Constitution requires Congress to pass laws that will protect citizens from poverty in old age, any more than we imagine that funding the Webb telescope is constitutionally compelled. 

Yet such attitudes would have baffled reformers in the past, from Jacksonian Democrats and radical abolitionists to prairie populists and New Deal liberals, who all advanced their agendas by appealing to the egalitarian principles and requirements they saw contained in the Constitution. Fishkin and Forbath refer to this history as the lost “democracy of opportunity” tradition of constitutional law. It rested, they show, on the once nearly universal belief among our liberal forebears that preserving a healthy republic, and, by extension, the Constitution itself, depended on a political economy in which the broad mass of citizens enjoyed avenues of upward mobility and protection from domination by oligarchs, monopolists, and other malefactors of great wealth. It’s an all-American but now largely forgotten creed, the authors argue, that today’s generation needs to—and can—recover. They write that we are now at a propitious moment to build a multiracial coalition that will re-democratize constitutional law and make the Supreme Court once again serve egalitarian ends. 

The authors were colleagues for many years at the University of Texas at Austin School of Law, where Forbath continues to teach both law and history; Fishkin has moved to UCLA. In addition to their UT connection and law degrees from Yale, both also have doctorates—Fishkin’s in politics from Oxford and Forbath’s in history from Yale. 

This background helps to explain their approach, which dwells heavily on reconstructing how Americans up until about the mid-20th century viewed law and economics very differently than we do now. Our forebears divided, often violently, over many issues, including slavery and who should and should not enjoy the right to vote. But there was near-universal assent to the proposition that democracy would degenerate into demagoguery unless those who were entrusted with the vote had enough financial independence to avoid servility to the rich and powerful. From this followed that it was the duty of any democratic government to oppose monopoly and otherwise structure markets to foster a broad, propertied middle class. It’s a tradition of thought that is neither liberal nor conservative as we understand those terms today, and that has become all but forgotten, although some recent books, including Ganesh Sitaraman’s The Crisis of the Middle-Class Constitution and Barry Lynn’s Liberty From All Masters, have also begun the process of excavating it and showing its relevance to today’s progressive movement. 

Fishkin and Forbath trace the tradition back to the dawn of the republic, when revolutionaries were infused with anti-aristocratic ideas. Noah Webster, neither a hothead nor a radical, notably said, “The basis of a democratic and a republican form of government is a fundamental law, favoring an equal or rather a general distribution of property.” Further, he said, 

an equality of property is the very soul of a republic—while this continues, the people will inevitably possess both power and freedom; when this is lost, power departs, liberty expires, and a commonwealth will inevitably assume some other form. 

According to Fishkin and Forbath, that “every well-informed revolutionary” held these views helps explain why redistributive republican ideals infused state constitutions as well as the federal one. 

The democracy of opportunity tradition also found plenty of expression in the Jacksonian era. President Andrew Jackson’s fight against rechartering the national bank is often described as based on states’ rights, but this approach, the authors write, neglects an important aspect of his efforts: “Entwined with that battle was a constitutional debate about the nation’s distribution of opportunity, wealth, and power.” Jacksonians took their arguments against the bank’s constitutionality to the courts, state legislatures, and Congress, arguing that, in the words of Congressman John Bell of Tennessee, “the accumulation of great wealth in the hands of individual citizens” undermined the “equality of rank and influence” that is “the fundamental principle upon which [our government] is erected.” 

Their opponents, the Whigs, also embraced this principle, pointing to the Constitution’s “general welfare” clause, and differed only as to the best means of achieving it. In arguing for tariffs, as well as for the building of roads, canals, and other infrastructure, John Quincy Adams contended that Congress not only possessed the power but was obligated by the Constitution to protect nascent industries and their workers, because that would in turn foster a broad middle class on which a constitutional republic depends.

In the middle of the 19th century, members of the newly formed Republican Party, like the Whigs before them, rested their argument against slavery and for the broad distribution of public lands on the democracy of opportunity tradition. As the debate over the western territory and slavery turned to war, Radical Republicans saw in the guarantee clause—the assurance of a republican form of government to every state—a requirement that Congress provide both “basic civil rights and … basic social goods to secure the freed people in their freedom.” 

After the Civil War, Radical Republicans again appealed to the democracy of opportunity tradition in arguing not only for passage of the Thirteenth, Fourteenth, and Fifteenth Amendments but also for statutes specifically designed to attack inequality. These included the Civil Rights Act of 1866, which ensured formal liberty of contract and the right to property, and the second Freedmen’s Bureau Act, also in 1866, which established free schools and called for “unoccupied public lands” to be provided to “loyal refugees and freedmen.” Representative Thaddeus Stevens, who led Congress’s Joint Committee on Reconstruction, expounded that “the whole fabric of southern society must be changed … If the South is ever to be made a safe republic … How can republican institutions … exist in a mingled community of nabobs and serfs?”

Leaders of the fight for women’s suffrage and legal emancipation also drew on this anti-oligarchic constitutional vision, with the Reconstruction amendments adding force to their demands. Susan B. Anthony called men’s domination of women an “oligarchy of sex, which makes the men of every household sovereigns, masters; the women subjects, slaves.” In addition to the newly adopted Fourteenth Amendment and its promise of equal protection, Anthony argued that barring women from voting was antithetical to the guarantee clause and its promise of republican government. 

Populist and progressive reformers at the end of the 19th century, facing a moment of great economic crisis and increasing disparities of wealth and power, drew on this same tradition, according to the authors, invoking the doctrine of equality laid down in the Declaration of Independence and the principle “imbedded” “in our Constitution [of securing] … the widest distribution among the people, not only of political power, but of the advantages of wealth, education, and social influence.” In arguing for the legislation that came to bear his name, Senator John Sherman leaned heavily on constitutional arguments, calling the trusts a major danger to democracy and arguing that their monopoly power was like “a kingly prerogative inconsistent with our form of government.” Progressives later used these same constitutional views to push through the amendments that created an income tax, the direct election of senators, and women’s suffrage. 

Opposing this constitutional tradition was a Supreme Court that grew increasingly reactionary during the decades between the 1870s and the 1930s. The Court’s infamous 1905 Lochner decision, finding unconstitutional a New York maximum-hour law, is only one of many where courts embraced a cramped interpretation of the Constitution to block a progressive change. The Court’s views reflected a shift of opinion, starting in the 1870s, among northern elites away from the egalitarianism reforms of the Radical Republicans and toward a narrow, formalistic concept of freedom that benefited powerful industries while abandoning efforts to build racial equality in the South and rights for workers everywhere. This doctrine hardened over time, Fishkin and Forbath write, into “highly general and abstract legal-constitutional principles—above all freedom of contract and security of private property—along with precedents and reason to specify the conditions under which people, or lawmakers, were free to behave as they pleased.” Judge-made common law protecting contract and liberty thus became constitutional rules that could not be undone by elected officials. 

Like many progressives, President Theodore Roosevelt saw this “judicial supremacy” as serving oligarchy. In advocating for referenda to overturn Supreme Court decisions, Roosevelt called for the people to have “the real, and not merely the nominal, ultimate decision on the questions of constitutional law.” 

A generation later, President Franklin D. Roosevelt took up the fight against an overly powerful—and misguided—Supreme Court. Like his uncle, FDR grounded his arguments in a vision of the Constitution as a covenant to dethrone the “economic royalists,” whom he compared to “the eighteenth-century royalists who held special privileges from the crown.” FDR and other New Dealers consistently invoked specific provisions of the Constitution, such as the general welfare and equal protection clauses, to brush back Court objections to legislation like the Fair Labor Standards Act, the National Labor Relations Act, and the Social Security Act. 

After FDR threatened to expand the Court with new justices who would endorse his program, the Court stepped back from the brink in 1937 and acknowledged the power of Congress to address economic issues, in particular the crisis of the Great Depression. But despite that hard-fought victory, liberals over the next generation would wind up giving increasing deference to the courts. 

Why did this occur? The authors point to Brown and other landmark decisions made from 1953 to 1969 during the tenure of Chief Justice Earl Warren. Confident that a liberal majority could turn the Court into a vehicle for securing civil rights for Black people and other minorities, liberals unwittingly began to buy into the reactionary doctrine that judges, not voters, were the final arbiters of what is and is not constitutional. 

Also contributing to the shift in liberal attitudes toward the Court was the great postwar economic expansion of the middle class. From the end of World War II to the early 1970s, economic inequality in the United States fell dramatically. This caused leading liberals to become much less concerned than in the past about such once-high-voltage issues as controlling monopolies, and to entrust management of the economy to academically trained economists rather than democratically elected policy makers. As that occurred, they began to abandon the much older democracy of opportunity tradition of constitutional law as well. Thus began what Fishkin and Forbath dub “the Great Forgetting.”

As the 1970s advanced, however, the broad economic expansion that had reduced wealth disparities sputtered and slowed. Unions saw their power erode as libertarian trade agreements and deregulation began to shrink the middle class and particularly threaten non-college-educated workers of all races. At the same time, the composition of the Supreme Court began to become more and more reactionary. This was mostly because Republicans, empowered by an academic and public policy juggernaut funded by the right, appointed more and more reactionary justices who viewed the republic as grounded in rugged individualism, limited government, and private property. But the Court moved right also because even judges appointed by Democrats became increasingly in thrall to economic libertarianism. In the 27 years since President Bill Clinton nominated him to the Supreme Court, Justice Stephen Breyer, for example, has consistently voted to limit the use of antitrust laws to rein in monopolies. 

Today, many progressives are returning to an understanding of the critical importance of an anti-monopolistic agenda and other efforts to address systemic wealth disparities through public policy. This agenda is broadly popular with the public, but just as FDR saw much of his agenda, at least initially, thwarted by the Supreme Court, Biden now faces a similar challenge in moving forward. The current Court is determined to keep its views on economic “liberty” cemented into constitutional law. 

Fishkin and Forbath argue that the solution is for progressives and liberals to return to the democracy of opportunity tradition. We need our own positive vision of the Constitution that elevates popular rule and a broad middle class and that builds a “national community” by opposing oligarchic control. Their call to arms appeals to constitutional patriotism, showing how the Constitution can undergird, rather than impede, core commitments to equal citizenship, protection from domination, and broad avenues of upward mobility as the means to those ends. 

Some focus, to be sure, should be directly on the Court, including structural reforms such as expansion and term limits. But the authors write that our arguments for those reforms should be more than procedural. Rather than say we are just trying to get back at Republicans for “stealing a seat” from President Barack Obama, we should say that the reforms are needed to stop the Court’s perversion of the Constitution and of our system of republican government. 

The authors suggest other, more subtle mechanisms to rein in the Court, including limits on its jurisdiction and trigger statutes that substitute an alternative enforcement mechanism if the Court strikes down the law’s initial approach. Recognizing that the Court itself might block such reforms, the authors nonetheless suggest that this too could serve the cause of making clear to the public that we should not focus just on Court personnel but also on the Court’s role in deciding what the Constitution means. They write, 

If Americans can once more see and understand the vision of constitutional political economy that is being imposed by undemocratic courts, it will become possible to run campaigns on, and elect leaders who strongly advocate, a rival, egalitarian constitutional political economy that aims to restore a democracy of opportunity. 

Fishkin and Forbath don’t leave it there; they provide a set of proposals to attack oligarchy that involve contesting the “weaponized” First Amendment jurisprudence that has substituted campaign spending for true participation as the focus of constitutional protection. They also address how to anchor racial justice in democracy of opportunity, including policies on mass incarceration, health care, social insurance programs, and voting and anti-discrimination. And they explain how the democracy of opportunity tradition can and should animate debates over antitrust, labor policy, banking regulation, taxation, and corporate reform. 

Finally, the authors propose a robust platform of structural reforms of our political system, including constitutional amendments to abolish the Electoral College and reform the Senate, just as our progressive forebears did in establishing an income tax, direct election of senators, and women’s suffrage. Added to the list: ensuring true citizenship for Washington, D.C.

I have only a couple of quibbles with this fine book. In describing the Republican Free Labor movement, the authors could have stated more strongly that land in the West was not “free,” but in fact belonged to Indigenous peoples. And the book might have been helped by limiting numerous reiterations of their central thesis. 

But the arguments are persuasive, and the narrative compelling. The authors wisely chose to avoid the perils of legalese—manifold footnotes, dense writing, and extensive case analysis. The Anti-Oligarchy Constitution is a sweeping and often gripping history of constitutional and political argument and engagement. 

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