washingtonmonthly--2020-12-08--The Story Behind Trump’s Dog Whistle to White Farmers

During his campaign rally in Valdosta , Georgia on Saturday , Donald Trump threw out a brief dog whistle to the state ’ s white farmers .
In an effort to scare voters about what would happen if Democrats won the Senate runoff elections in Georgia on January 5 , Trump claimed that they would “ take over your farm.
” While it didn ’ t get a big reaction from the crowd , it is worth noting that agriculture is big business in Georgia—contributing over $ 70 billion a year to the state ’ s economy from over 40,000 @ @ @ @ @ @ @ corn , and other crops .
As is so often the case , the president was probably triggered to make the claim about farm takeovers by Tucker Carlson .
On November 24 , the Fox News host mentioned the Justice for Black Farmers Act .
Carlson ’ s viewers are probably not aware of the contradiction between an initiative that involves buying land to make it available to Black farmers and “ the Robert Mugabe plan.
” But here is what Human Rights Watch wrote about the so-called “ land reform program ” @ @ @ @ @ @ @ .
The “ fast track ” land resettlement program implemented by the government of Zimbabwe over the last two years has led to serious human rights violations…The stated aim of the fast track program is to take land from rich white commercial farmers for redistribution to poor and middle-income landless black Zimbabweans .
Under the program , however , ruling party militias , often led by veterans of Zimbabwe ’ s liberation war , have carried out serious acts of violence against farm owners , farm workers , and , using occupied farms @ @ @ @ @ @ @ of surrounding areas .
The police have done little to halt such violence , and in some cases are directly implicated in the abuses .
Needless to say , no Democratic Senator is sponsoring legislation to empower Black militias to violently confiscate land from white farmers .
As with all efforts to address systemic racism , it is important to know some history in order to understand why these Democratic Senators have proposed a Justice for Black Farmers Act .
Vann Newkirk documented the story for The Atlantic in an article titled , @ @ @ @ @ @ @ shameful story of how 1 million black families have been ripped from their farms.
” The land was wrested first from Native Americans , by force .
It was then cleared , watered , and made productive for intensive agriculture by the labor of enslaved Africans , who after Emancipation would come to own a portion of it .
Later , through a variety of means—sometimes legal , often coercive , in many cases legal and coercive , occasionally violent—farmland owned by black people came into the hands of white people… A war @ @ @ @ @ @ @ 98 percent of black agricultural landowners in America .
They have lost 12 million acres over the past century .
But even that statement falsely consigns the losses to long-ago history .
In fact , the losses mostly occurred within living memory , from the 1950s onward .
Discriminatory policies and practices at the Department of Agriculture played a major role in this loss of land , with Black farmers being excluded from access to disaster relief , loans , and grants that were otherwise made available to white farmers .
Democratic Presidents @ @ @ @ @ @ @ farmers robbed by these USDA policies .
But the Justice for Black Farmers Act takes things a step further by providing land grants to create a new generation of Black farmers .
The key provision of the bill establishes a fund of $ 8 billion annually to buy farmland on the open market and grant it to new and existing Black farmers , with the goal of making 20,000 grants per year over nine years .
Of course , right-wingers will howl that such a land grant is pure socialism .
One response @ @ @ @ @ @ @ estimated 93 million Americans who are descendants of those who benefited from the Homestead Act of 1862 .
If Senators Booker and Warren are socialists , so was Abraham Lincoln .

During his campaign rally in Valdosta, Georgia on Saturday, Donald Trump threw out a brief dog whistle to the state’s white farmers.
In an effort to scare voters about what would happen if Democrats won the Senate runoff elections in Georgia on January 5, Trump claimed that they would “take over your farm.” While it didn’t get a big reaction from the crowd, it is worth noting that agriculture is big business in Georgia—contributing over $70 billion a year to the state’s economy from over 40,000 farms flush with cotton, peanuts, corn, and other crops.
As is so often the case, the president was probably triggered to make the claim about farm takeovers by Tucker Carlson. On November 24, the Fox News host mentioned the Justice for Black Farmers Act.
TUCKER CARLSON (HOST): Sens. Cory Booker and Elizabeth Warren, for example, unveiled something called the Justice for Black Farmers Act last week…If enacted as a law, it would create an agency devoted to, quote, “equitable land access.” What would they do? Well, the agency would spend up to $8 billion buying private land and doling it out on the basis of race. The Robert Mugabe plan — ooh, that sounds like a good idea.
Carlson’s viewers are probably not aware of the contradiction between an initiative that involves buying land to make it available to Black farmers and “the Robert Mugabe plan.” But here is what Human Rights Watch wrote about the so-called “land reform program” championed by the ruthless President of Zimbabwe.
The “fast track” land resettlement program implemented by the government of Zimbabwe over the last two years has led to serious human rights violations…The stated aim of the fast track program is to take land from rich white commercial farmers for redistribution to poor and middle-income landless black Zimbabweans. Under the program, however, ruling party militias, often led by veterans of Zimbabwe’s liberation war, have carried out serious acts of violence against farm owners, farm workers, and, using occupied farms as bases for attacks, against residents of surrounding areas. The police have done little to halt such violence, and in some cases are directly implicated in the abuses.
Needless to say, no Democratic Senator is sponsoring legislation to empower Black militias to violently confiscate land from white farmers.
As with all efforts to address systemic racism, it is important to know some history in order to understand why these Democratic Senators have proposed a Justice for Black Farmers Act. Vann Newkirk documented the story for The Atlantic in an article titled, “The Great Land Robbery: The shameful story of how 1 million black families have been ripped from their farms.”
The land was wrested first from Native Americans, by force. It was then cleared, watered, and made productive for intensive agriculture by the labor of enslaved Africans, who after Emancipation would come to own a portion of it. Later, through a variety of means—sometimes legal, often coercive, in many cases legal and coercive, occasionally violent—farmland owned by black people came into the hands of white people… A war waged by deed of title has dispossessed 98 percent of black agricultural landowners in America. They have lost 12 million acres over the past century. But even that statement falsely consigns the losses to long-ago history. In fact, the losses mostly occurred within living memory, from the 1950s onward.
Discriminatory policies and practices at the Department of Agriculture played a major role in this loss of land, with Black farmers being excluded from access to disaster relief, loans, and grants that were otherwise made available to white farmers.
Democratic Presidents Clinton and Obama settled claims from Black farmers robbed by these USDA policies. But the Justice for Black Farmers Act takes things a step further by providing land grants to create a new generation of Black farmers. The key provision of the bill establishes a fund of $8 billion annually to buy farmland on the open market and grant it to new and existing Black farmers, with the goal of making 20,000 grants per year over nine years.
Of course, right-wingers will howl that such a land grant is pure socialism. One response would be to refer them to the estimated 93 million Americans who are descendants of those who benefited from the Homestead Act of 1862. If Senators Booker and Warren are socialists, so was Abraham Lincoln.


washingtonmonthly--2020-12-08--House Passes Military Bill But It’s a Long Way From Being Signed

President Trump initially threatened to veto the Defense Appropriations Authorization Act because it contains language requiring the Pentagon to rename bases honoring Confederate officers .
Later , he objected that the bill which basically finances the American military doesn ’ t repeal Section 230 of the Communications Decency Act , a provision that shields online publishers from liability .
Section 230 has nothing to do with paying soldiers , sailors , and airmen or building aircraft carriers .
But it is on the president ’ s mind because he sees it as a way of getting back at Twitter and @ @ @ @ @ @ @ him .
Neither cause was eagerly adopted by congressional Republicans , certainly not their leaders .
So , both the House and Senate are moving ahead with the massive $ 761 billion bill , hoping that Trump won ’ t follow through with his threat .
They ’ ve been voicing confidence that , if necessary , they ’ ll have the votes to produce the two-thirds majorities required to override a Trump veto and pass this bill that they consider essential not only for national defense but their own survival .
Cutting @ @ @ @ @ @ @ as Christmas approaches , is not considered brilliant politics .
So on Tuesday evening , the House passed the NDAA with a 335-78 veto-proof majority , and it will now move to the Senate .
However , this doesn ’ t mean that the House Republicans will actually vote to override a Trump veto : House Minority Leader Kevin McCarthy ( R-Calif. ) also said Tuesday that he would not vote to override a veto .
“ I don ’ t believe Republicans , in our work with the president always , that @ @ @ @ @ @ @ ” McCarthy told reporters .
The 37-member hardcore conservative Freedom Caucus has been threatening to vote against the bill and what they might do if there is a veto override vote is anyone ’ s guess .
If the Freedom Caucus keeps true to its promise , they ’ ll divide the Republican Party and pose risks to national security .
A Trump veto would also have consequences .
It would force Congress to cut short its planned holiday recess just to hold the override vote .
If the override fails , the @ @ @ @ @ @ @ Construction projects will stall , and a planned three percent pay increase for the troops will be delayed .
One way to avoid this problem is to pass a “ skinny ” bill that covers just the imminent shortfalls , but Trump has promised to veto a skinny bill , too , and the Democrats have ruled this option out as well .
Therefore , it looks unlikely that anything will pass in this Congress , and it won ’ t be a quick matter for the next Congress to rectify the problem @ @ @ @ @ @ @ in January .
Before the new Congress can vote on the NDAA , they first have to organize their committees , which usually takes a few weeks .
In the Senate , it could take weeks for certified results from the two January 3 Georgia runoffs to determine which party controls the chamber .
Even after that is clarified , there ’ s no guarantee that the old NDAA will be acceptable to either the new committees or the Biden Administration .
House Armed Services Committee Chairman Adam Smith of Washington says , @ @ @ @ @ @ @ the entire process.
” Merry Christmas .

President Trump initially threatened to veto the Defense Appropriations Authorization Act because it contains language requiring the Pentagon to rename bases honoring Confederate officers. Later, he objected that the bill which basically finances the American military doesn’t repeal Section 230 of the Communications Decency Act, a provision that shields online publishers from liability. Section 230 has nothing to do with paying soldiers, sailors, and airmen or building aircraft carriers. But it is on the president’s mind because he sees it as a way of getting back at Twitter and other tech companies he believes are censoring him.
Neither cause was eagerly adopted by congressional Republicans, certainly not their leaders. So, both the House and Senate are moving ahead with the massive $761 billion bill, hoping that Trump won’t follow through with his threat. They’ve been voicing confidence that, if necessary, they’ll have the votes to produce the two-thirds majorities required to override a Trump veto and pass this bill that they consider essential not only for national defense but their own survival. Cutting off military salaries during the pandemic, as Christmas approaches, is not considered brilliant politics. So on Tuesday evening, the House passed the NDAA with a 335-78 veto-proof majority, and it will now move to the Senate.
However, this doesn’t mean that the House Republicans will actually vote to override a Trump veto:
House Minority Leader Kevin McCarthy (R-Calif.) also said Tuesday that he would not vote to override a veto. “I don’t believe Republicans, in our work with the president always, that you vote to override a veto,” McCarthy told reporters.
How’s that for leadership?
The 37-member hardcore conservative Freedom Caucus has been threatening to vote against the bill and what they might do if there is a veto override vote is anyone’s guess.
If the Freedom Caucus keeps true to its promise, they’ll divide the Republican Party and pose risks to national security.
A Trump veto would also have consequences. It would force Congress to cut short its planned holiday recess just to hold the override vote. If the override fails, the military may find itself lacking funds. Construction projects will stall, and a planned three percent pay increase for the troops will be delayed.
One way to avoid this problem is to pass a “skinny” bill that covers just the imminent shortfalls, but Trump has promised to veto a skinny bill, too, and the Democrats have ruled this option out as well.
Therefore, it looks unlikely that anything will pass in this Congress, and it won’t be a quick matter for the next Congress to rectify the problem when it swears in the first week in January.
Before the new Congress can vote on the NDAA, they first have to organize their committees, which usually takes a few weeks. In the Senate, it could take weeks for certified results from the two January 3 Georgia runoffs to determine which party controls the chamber.
Even after that is clarified, there’s no guarantee that the old NDAA will be acceptable to either the new committees or the Biden Administration. House Armed Services Committee Chairman Adam Smith of Washington says, “You’d have to restart the entire process.” Merry Christmas.


washingtonmonthly--2020-12-08--Who’s the Radical, Raphael Warnock or Kelly Loeffler?

During the Georgia Senate debate on Sunday , incumbent Republican Kelly Loeffler had a simple four-word script that she constantly used to describe her opponent : “ radical liberal Raphael Warnock.
” On Twitter , she has called the man of the cloth “ the most radical candidate to ever run for Senate , ” and her television attack ads refer to Warnock as the “ radicals ’ radical.
” Loeffler and her communications team get points for consistency .
They think tarring her opponent as a “ radical ” is a winning message .
Much as right-wingers used edited @ @ @ @ @ @ @ as a cudgel against Barack Obama in 2008 , Loeffler uses edited clips of Warnock ’ s sermons at Ebenezer Baptist Church in Atlanta to back up her claims .
That ’ s because the issues he is actually running on are far from radical .
For example , on health care , Warnock hasn ’ t endorsed the elimination of private insurance under a single-payer system .
He wants to : • None Listen to the experts on getting the coronavirus pandemic under control ; • None Protect , improve , and @ @ @ @ @ @ @ encouraging Medicaid expansion and creating a public option through early Medicare buy-in ; • None Authorize the federal government to negotiate with drug companies to bring down prescription drug prices ; and Other proposals Warnock has put forward include things like funding police departments while increasing accountability , encouraging investment in clean energy , transitioning to a clean economy by 2050 , and restoring the Voting Rights Act .
Those are pretty standard Democratic proposals that are hardly radical .
The issues Loeffler highlighted on campaign her website are mostly standard Republican fare @ @ @ @ @ @ @ against a woman ’ s right to choose , and a proponent of trickle-down economics ( tax cuts for the wealthy as a way to grow the economy ) .
When it comes to health care , her prescriptions are vague , but in October , she voted to allow the administration to proceed with its lawsuit to repeal the entire Affordable Care Act .
Like the rest of her party , she favors millions of people losing their health insurance during a pandemic .
Loeffler ’ s biggest claim to fame is @ @ @ @ @ @ @ 100 percent of the time .
At this point , she joins the president in ignoring the coronavirus pandemic while being obsessed with denying the outcome of the presidential election .
In other words , Loeffler is content to put American lives at risk and challenge the foundations of our democracy .
That ’ s pretty radical .
It was Loeffler who , in the midst of Georgia ’ s Republican primary , produced a series of ads claiming that she was more conservative than Attila the Hun .
Of course , the @ @ @ @ @ @ @ in fun .
But journalist Jay Bookman had some trouble understanding what it was that made Attila conservative .
Bookman answered his own question by noting that Loeffler was happy to campaign with Republican House candidate Marjory Taylor Greene , whose embrace of QAnon conspiracy theories and white supremacy has drawn rebukes—even from GOP leadership .
Note that in one of those pictures , you can see armed militia members standing guard around Loeffler and Greene and the perimeter of the event .
By highlighting that picture on her Twitter feed—along with her @ @ @ @ @ @ @ she welcomes the support of white supremacists , QAnon , and militia members .
That ’ s pretty much the definition of radical .

During the Georgia Senate debate on Sunday, incumbent Republican Kelly Loeffler had a simple four-word script that she constantly used to describe her opponent: “radical liberal Raphael Warnock.” On Twitter, she has called the man of the cloth “the most radical candidate to ever run for Senate,” and her television attack ads refer to Warnock as the “radicals’ radical.” Loeffler and her communications team get points for consistency. They think tarring her opponent as a “radical” is a winning message.
Much as right-wingers used edited clips of Jeremiah Wright’s sermons as a cudgel against Barack Obama in 2008, Loeffler uses edited clips of Warnock’s sermons at Ebenezer Baptist Church in Atlanta to back up her claims. That’s because the issues he is actually running on are far from radical. For example, on health care, Warnock hasn’t endorsed the elimination of private insurance under a single-payer system. He wants to:
Listen to the experts on getting the coronavirus pandemic under control; Protect, improve, and build on the Affordable Care Act by encouraging Medicaid expansion and creating a public option through early Medicare buy-in; Authorize the federal government to negotiate with drug companies to bring down prescription drug prices; and Provide comprehensive access to reproductive and mental health services.
Other proposals Warnock has put forward include things like funding police departments while increasing accountability, encouraging investment in clean energy, transitioning to a clean economy by 2050, and restoring the Voting Rights Act. Those are pretty standard Democratic proposals that are hardly radical.
The issues Loeffler highlighted on campaign her website are mostly standard Republican fare, such as being pro-2nd Amendment, against a woman’s right to choose, and a proponent of trickle-down economics (tax cuts for the wealthy as a way to grow the economy). When it comes to health care, her prescriptions are vague, but in October, she voted to allow the administration to proceed with its lawsuit to repeal the entire Affordable Care Act. Like the rest of her party, she favors millions of people losing their health insurance during a pandemic.
Loeffler’s biggest claim to fame is that she has voted with Donald Trump 100 percent of the time. At this point, she joins the president in ignoring the coronavirus pandemic while being obsessed with denying the outcome of the presidential election. In other words, Loeffler is content to put American lives at risk and challenge the foundations of our democracy. That’s pretty radical.
It was Loeffler who, in the midst of Georgia’s Republican primary, produced a series of ads claiming that she was more conservative than Attila the Hun. Of course, the campaign would suggest that it was all in fun. But journalist Jay Bookman had some trouble understanding what it was that made Attila conservative.
It’s not as if Attila was pro-life, a defender of law and order or someone who respected private property. The man was a vicious killer who slaughtered every living soul in the cities that he conquered and plundered. It’s also not about low taxes; Attila “taxed” you by stealing everything you had…So it’s a mystery: What exactly makes Attila an icon for today’s conservatives?
Bookman answered his own question by noting that Loeffler was happy to campaign with Republican House candidate Marjory Taylor Greene, whose embrace of QAnon conspiracy theories and white supremacy has drawn rebukes—even from GOP leadership.
Note that in one of those pictures, you can see armed militia members standing guard around Loeffler and Greene and the perimeter of the event. By highlighting that picture on her Twitter feed—along with her association with Greene—Loeffler sent a message that she welcomes the support of white supremacists, QAnon, and militia members. That’s pretty much the definition of radical.


washingtonmonthly--2020-12-09--What Donald Trump Can Learn From Grover Cleveland

Now that Donald Trump ’ s electoral defeat seems assured , rumors are circulating that he ’ ll run in 2024 and declare as early as Inauguration Day .
And some are already comparing him to Grover Cleveland , the only president to reclaim the office after losing it .
But I know a little something about Grover Cleveland .
And Donald Trump , you ’ re no Grover Cleveland .
Yes , there are parallels .
They both grew up in New York : Trump in Queens and Cleveland in upstate Oneida County .
Each man married a woman @ @ @ @ @ @ @ And as recent accounts have reminded us , both presidents were caught up in tabloid-worthy sex scandals .
Yet it ’ s the differences between the scandals—not the similarities—that teach us the most about the two presidents .
Clearly , Cleveland was a man of character .
And , just as clearly , Trump is not .
In July 1884 , newspapers reported that Cleveland—the Democratic candidate for president , and still a bachelor—had fathered a son with a widow named Maria Halpin .
Cleveland didn ’ t make any public statement about @ @ @ @ @ @ @ aides a simple instruction : “ Above all , tell the truth.
” They discretely informed newspapers that Cleveland was paying to support the boy .
Gleeful Republicans exploited the scandal , parading behind baby carriages and chanting , “ Ma ?
Ma ?
Where ’ s my Pa ?
” But Democrats would get the last laugh , retorting , “ He ’ s gone to the White House , ha , ha , ha ” after Cleveland defeated GOP candidate James Blaine in November .
Blaine was dogged by charges that @ @ @ @ @ @ @ when he was Speaker of the House .
By contrast , Cleveland ’ s efforts to battle corruption as governor of New York had earned him the nickname “ Grover the Good.
” In the end , voters trusted Cleveland more .
The love-child exposé actually might have helped him , despite the era ’ s stricter sexual mores , because it underscored his honesty .
By contrast , think of John Edwards , the former North Carolina senator and 2004 Democratic Vice-Presidential nominee who denied paternity of the child born by a @ @ @ @ @ @ @ affair .
Edwards fessed up to the extramarital liaison but , amazingly , convinced a married aide to claim paternity .
When the truth came to light , the senator , once lauded for his silver tongue , was ruined .
Even in the Victorian era , meanwhile , some people questioned whether Cleveland ’ s transgression lay beyond the moral pale .
“ To see grown men , apparently in their right mind , seriously arguing against a bachelor ’ s fitness for President , because he has had private intercourse with @ @ @ @ @ @ @ bemused Mark Twain , who abandoned his Republican roots to vote for Cleveland .
By contrast , Trump has been accused of unwanted sexual conduct—including verbal harassment , groping , and rape—by no fewer than 26 women since the 1970s .
In the notorious “ Access Hollywood ” tape that surfaced during the 2016 elections , he boasted about grabbing women by their private parts .
He later apologized for his crude language , which he wrote off as “ locker-room talk.
” But he has not apologized to any of his alleged @ @ @ @ @ @ @ and liars .
Trump had to contend with even more revelations about his treatment of women after the campaign .
There was his affair with adult film actress Stormy Daniels , who received $ 130,000 from his attorney Michael Cohen to keep quiet about it .
At first , Trump denied knowing anything about the hush money .
But after it came to light , he said he had reimbursed Cohen for it .
Whether the money was a campaign-related expenditure or a husband covering up his infidelity became an important legal distinction @ @ @ @ @ @ @ Here , too , the contrast to Grover Cleveland couldn ’ t be sharper .
Yes , Cleveland made secret payments to care for the son he fathered .
But when they were exposed , he didn ’ t try to deny them or spin them .
Cleveland was , of course , doing the right thing by providing child support , which was a tacit acknowledgment of responsibility for his actions .
That ’ s something that has always eluded Trump , who has exactly one strategy when faced with any charge @ @ @ @ @ @ @ , ever admit any fault himself .
Grover Cleveland raised eyebrows again in 1886 when the 48-year-old president married Frances Folsom—who was just 21–in a White House ceremony .
( The Donald-Melania gap is 24 years . )
But the poised new first lady quickly proved herself to be a political asset for her taciturn husband , holding two receptions a week and sometimes greeting as many as 8,000 people at once .
And it was Frances who predicted that her husband Grover would return after he narrowly lost his re-election bid to @ @ @ @ @ @ @ Trump in 2016 , Harrison received fewer popular votes but prevailed in the Electoral College . )
“ I want to find everything just as it is now when we come back again , ” Frances told the White House staff .
Harrison ’ s own wife fell gravely ill during his presidency , which prevented him from actively campaigning for re-election .
Cleveland won their 1892 rematch , as Frances had foreseen .
Leaving their home off Fifth Avenue in New York , the Clevelands made a triumphal return to 1600 Pennsylvania @ @ @ @ @ @ @ as well ?
Part of the answer will depend on the multiple criminal and civil cases against him , including several lawsuits by victims who say he sexually assaulted them .
All of the charges of sexual misconduct did not prevent him from winning 47 percent of the vote last month .
But even if Trump follows Grover Cleveland ’ s footsteps back to the White House , taking the same route from Fifth Avenue to the president ’ s residence , he ’ ll never be the man Cleveland was .
We @ @ @ @ @

Now that Donald Trump’s electoral defeat seems assured, rumors are circulating that he’ll run in 2024 and declare as early as Inauguration Day. And some are already comparing him to Grover Cleveland, the only president to reclaim the office after losing it.
But I know a little something about Grover Cleveland. And Donald Trump, you’re no Grover Cleveland.
Yes, there are parallels. They both grew up in New York: Trump in Queens and Cleveland in upstate Oneida County. Each man married a woman more than 20 years his junior. And as recent accounts have reminded us, both presidents were caught up in tabloid-worthy sex scandals.
Yet it’s the differences between the scandals—not the similarities—that teach us the most about the two presidents. Clearly, Cleveland was a man of character. And, just as clearly, Trump is not.
In July 1884, newspapers reported that Cleveland—the Democratic candidate for president, and still a bachelor—had fathered a son with a widow named Maria Halpin. Cleveland didn’t make any public statement about the matter, but he gave his aides a simple instruction: “Above all, tell the truth.” They discretely informed newspapers that Cleveland was paying to support the boy.
Gleeful Republicans exploited the scandal, parading behind baby carriages and chanting, “Ma? Ma? Where’s my Pa?” But Democrats would get the last laugh, retorting, “He’s gone to the White House, ha, ha, ha” after Cleveland defeated GOP candidate James Blaine in November.
Blaine was dogged by charges that he had taken bribes from railroad companies when he was Speaker of the House. By contrast, Cleveland’s efforts to battle corruption as governor of New York had earned him the nickname “Grover the Good.” In the end, voters trusted Cleveland more. The love-child exposé actually might have helped him, despite the era’s stricter sexual mores, because it underscored his honesty. By contrast, think of John Edwards, the former North Carolina senator and 2004 Democratic Vice-Presidential nominee who denied paternity of the child born by a woman with whom he was having an affair. Edwards fessed up to the extramarital liaison but, amazingly, convinced a married aide to claim paternity. When the truth came to light, the senator, once lauded for his silver tongue, was ruined.
Even in the Victorian era, meanwhile, some people questioned whether Cleveland’s transgression lay beyond the moral pale. “To see grown men, apparently in their right mind, seriously arguing against a bachelor’s fitness for President, because he has had private intercourse with a consenting widow!” exclaimed a bemused Mark Twain, who abandoned his Republican roots to vote for Cleveland.
By contrast, Trump has been accused of unwanted sexual conduct—including verbal harassment, groping, and rape—by no fewer than 26 women since the 1970s. In the notorious “Access Hollywood” tape that surfaced during the 2016 elections, he boasted about grabbing women by their private parts. He later apologized for his crude language, which he wrote off as “locker-room talk.” But he has not apologized to any of his alleged victims, instead dismissing them as gold-diggers and liars.
Trump had to contend with even more revelations about his treatment of women after the campaign. There was his affair with adult film actress Stormy Daniels, who received $130,000 from his attorney Michael Cohen to keep quiet about it. At first, Trump denied knowing anything about the hush money. But after it came to light, he said he had reimbursed Cohen for it. Whether the money was a campaign-related expenditure or a husband covering up his infidelity became an important legal distinction that’s still being litigated.
Here, too, the contrast to Grover Cleveland couldn’t be sharper. Yes, Cleveland made secret payments to care for the son he fathered. But when they were exposed, he didn’t try to deny them or spin them.
Cleveland was, of course, doing the right thing by providing child support, which was a tacit acknowledgment of responsibility for his actions. That’s something that has always eluded Trump, who has exactly one strategy when faced with any charge: blame the accuser. And never, ever admit any fault himself.
Grover Cleveland raised eyebrows again in 1886 when the 48-year-old president married Frances Folsom—who was just 21–in a White House ceremony. (The Donald-Melania gap is 24 years.) But the poised new first lady quickly proved herself to be a political asset for her taciturn husband, holding two receptions a week and sometimes greeting as many as 8,000 people at once.
And it was Frances who predicted that her husband Grover would return after he narrowly lost his re-election bid to Benjamin Harrison in 1888. (Like Trump in 2016, Harrison received fewer popular votes but prevailed in the Electoral College.) “I want to find everything just as it is now when we come back again,” Frances told the White House staff.
Harrison’s own wife fell gravely ill during his presidency, which prevented him from actively campaigning for re-election. Cleveland won their 1892 rematch, as Frances had foreseen. Leaving their home off Fifth Avenue in New York, the Clevelands made a triumphal return to 1600 Pennsylvania Avenue.
Could Trump come back, as well? Part of the answer will depend on the multiple criminal and civil cases against him, including several lawsuits by victims who say he sexually assaulted them. All of the charges of sexual misconduct did not prevent him from winning 47 percent of the vote last month. But even if Trump follows Grover Cleveland’s footsteps back to the White House, taking the same route from Fifth Avenue to the president’s residence, he’ll never be the man Cleveland was. We know that much already.


washingtonmonthly--2020-12-09--Xavier Becerra Could Fight Hospital Consolidation as HHS Chief

President-elect Joe Biden ’ s selection of California Attorney General Xavier Becerra to be Health & Human Services secretary has generated some predictable criticism .
The 62-year-old former congressman is not a medical doctor , which is a disappointment to physicians ’ groups who advocated for one of their own to fill the position–although there hasn ’ t been a doctor in the slot for almost 30 years .
Since the distribution of COVID vaccines is likely to be foremost on everyone ’ s mind when he faces confirmation , expect him to get grilled on that .
But Becerra @ @ @ @ @ @ @ .
He served on the health subcommittee of the powerful House Ways & Means Committee and helped usher the Affordable Care Act through Congress while serving as vice-chair of the House Democratic Caucus .
Yet , his prominence on health issues , both in Congress and as California ’ s attorney general , has made him some enemies .
The anti-choice Susan B. Anthony organization tweeted that Becerra ’ s nomination proves that Biden is an extremist on abortion .
Opponents of Obamacare dislike his record of joining other Democratic attorneys general to @ @ @ @ @ @ @ It won ’ t be surprising if Republicans want to embarrass this rising star in the party .
At the Washington Monthly , we ’ re hopeful that more attention is paid to Becerra ’ s record on consolidation in the health care industry .
If he ’ s confirmed , fighting consolidation is one area where the longtime congressman from Los Angeles could make his name .
My brother Phil recently co-authored a piece with Udit Thakur on the problem of supposedly non-profit hospitals gobbling up market share and putting money ahead @ @ @ @ @ @ @ understands these issues intimately because he recently took northern California ’ s Sacramento-based Sutter Health to court for monopolistic practices and forced them into a large settlement .
As California ’ s attorney general , he still had unfinished business .
As a way of preventing even further consolidation , which could lead to higher prices and lower quality care , Mr. Becerra is seeking greater authority to review the deals under a proposed state law .
“ This pandemic can ’ t be an excuse for ‘ big fish ’ hospital systems @ @ @ @ @ @ @ competitors , ” he said .
“ Increased market consolidation comes at a cost to consumers .
“ As our nation confronts today ’ s health and economic crisis , we urgently need the tools to hold health care giants accountable to consumers and competition.
” Antitrust enforcement is not statutorily within the purview of the Secretary of Health & Human Services .
That ’ s the shared responsibility of the Justice Department ’ s Antitrust Division and the Federal Trade Commission .
Yet , Becerra will still have an important role to @ @ @ @ @ @ @ need to understand how hospital consolidation inadvertently accelerated due to the Affordable Care Act .
Holding down medical inflation and Medicare costs was a key priority of Obamacare because it was an important policy goal , and it helped grease the bill ’ s passage by lowering the legislation ’ s price tag .
To accomplish this , the law created Accountable Care Organizations , which are basically coalitions of physicians or hospitals that integrate their services to provide better care ( e.g.
, shared medical records ) and financial savings .
HHS @ @ @ @ @ @ @ Care Organizations , but they ran into trouble with the Federal Trade Commission , which ruled that some market consolidation intended to lower prices also violated antitrust law .
Despite the DOJ and FTC issuing joint guidance to clarify the situation , health care providers suffered from mixed messages .
What the Obama administration got were mixed results .
Health care inflation flattened out for half of the industry covered by Medicare , Medicaid , and the Veteran ’ s health system , but grew unabated with the half-covered by employer-based insurance .
@ @ @ @ @ @ @ , but Obama officials soon realized that the market consolidation they had encouraged had also created local health care monopolies , with all the associated antitrust problems .
Becerra has witnessed this process , which hasn ’ t improved during President Trump ’ s term in office .
The Stanford-educated lawyer understands the issues as a legislator and a litigant .
He ’ s seen the unintended consequences of the ACA ’ s push for health provider integration .
That puts California ’ s top litigator in a unique position to craft a @ @ @ @ @ @ @ outcomes and cost savings for the government without incentivizing the kinds of problems he took Sutter Health to court to combat .
As Becerra ’ s nomination moves through the Senate confirmation process , a lot of attention will be on him being the first Latino to lead HHS .
The Republicans will find fault with his credentials and record on Obamacare and abortion .
But it ’ s the potential for him to use his office ’ s admittedly limited powers to slow or reverse harmful consolidation in the health care industry @ @ @ @ @ @

President-elect Joe Biden’s selection of California Attorney General Xavier Becerra to be Health & Human Services secretary has generated some predictable criticism.
The 62-year-old former congressman is not a medical doctor, which is a disappointment to physicians’ groups who advocated for one of their own to fill the position–although there hasn’t been a doctor in the slot for almost 30 years. Since the distribution of COVID vaccines is likely to be foremost on everyone’s mind when he faces confirmation, expect him to get grilled on that.
But Becerra is no stranger to health care policy. He served on the health subcommittee of the powerful House Ways & Means Committee and helped usher the Affordable Care Act through Congress while serving as vice-chair of the House Democratic Caucus.
Yet, his prominence on health issues, both in Congress and as California’s attorney general, has made him some enemies. The anti-choice Susan B. Anthony organization tweeted that Becerra’s nomination proves that Biden is an extremist on abortion. Opponents of Obamacare dislike his record of joining other Democratic attorneys general to defend the law’s constitutionality. It won’t be surprising if Republicans want to embarrass this rising star in the party.
At the Washington Monthly, we’re hopeful that more attention is paid to Becerra’s record on consolidation in the health care industry. If he’s confirmed, fighting consolidation is one area where the longtime congressman from Los Angeles could make his name.
My brother Phil recently co-authored a piece with Udit Thakur on the problem of supposedly non-profit hospitals gobbling up market share and putting money ahead of service to the public. Becerra understands these issues intimately because he recently took northern California’s Sacramento-based Sutter Health to court for monopolistic practices and forced them into a large settlement. As California’s attorney general, he still had unfinished business.
As a way of preventing even further consolidation, which could lead to higher prices and lower quality care, Mr. Becerra is seeking greater authority to review the deals under a proposed state law. “This pandemic can’t be an excuse for ‘big fish’ hospital systems to swallow up their smaller but able competitors,” he said. “Increased market consolidation comes at a cost to consumers. “As our nation confronts today’s health and economic crisis, we urgently need the tools to hold health care giants accountable to consumers and competition.”
Antitrust enforcement is not statutorily within the purview of the Secretary of Health & Human Services. That’s the shared responsibility of the Justice Department’s Antitrust Division and the Federal Trade Commission. Yet, Becerra will still have an important role to play. To see how, we need to understand how hospital consolidation inadvertently accelerated due to the Affordable Care Act.
Holding down medical inflation and Medicare costs was a key priority of Obamacare because it was an important policy goal, and it helped grease the bill’s passage by lowering the legislation’s price tag. To accomplish this, the law created Accountable Care Organizations, which are basically coalitions of physicians or hospitals that integrate their services to provide better care (e.g., shared medical records) and financial savings.
HHS encouraged and facilitated the growth of Accountable Care Organizations, but they ran into trouble with the Federal Trade Commission, which ruled that some market consolidation intended to lower prices also violated antitrust law. Despite the DOJ and FTC issuing joint guidance to clarify the situation, health care providers suffered from mixed messages.
What the Obama administration got were mixed results. Health care inflation flattened out for half of the industry covered by Medicare, Medicaid, and the Veteran’s health system, but grew unabated with the half-covered by employer-based insurance. Quality of care improved in many respects, but Obama officials soon realized that the market consolidation they had encouraged had also created local health care monopolies, with all the associated antitrust problems.
Becerra has witnessed this process, which hasn’t improved during President Trump’s term in office. The Stanford-educated lawyer understands the issues as a legislator and a litigant. He’s seen the unintended consequences of the ACA’s push for health provider integration. That puts California’s top litigator in a unique position to craft a more balanced approach—one that produces better patient outcomes and cost savings for the government without incentivizing the kinds of problems he took Sutter Health to court to combat.
As Becerra’s nomination moves through the Senate confirmation process, a lot of attention will be on him being the first Latino to lead HHS. The Republicans will find fault with his credentials and record on Obamacare and abortion. But it’s the potential for him to use his office’s admittedly limited powers to slow or reverse harmful consolidation in the health care industry that might be most consequential.


washingtonmonthly--2020-12-09--Disbar Ken Paxton–And Then Some

Disbar Ken Paxton–And Then Some

What we are witnessing during this endless post-election period is a coordinated attempt to murder the American system of government .
This crime is being carried out in public by lawyers who have taken an oath to uphold the Constitution they seek to destroy .
Spare me sophistry about “ the better angels of our nature.
” These chiseling shysters should face not just disbarment but monetary sanctions , and maybe jail .
And my lead nominee for disbarment , fines , and even prison is not the pathetic dotard Rudy Giuliani or the deranged Kraken keeper Sidney Powell ; @ @ @ @ @ @ @ it is Texas Attorney General Ken Paxton .
For years , Paxton has relished his role as a kind of national marplot , sticking spikes in the wheels of progressive legislation .
“ I get up in the morning and I sue the federal government , ” he said during the Obama years .
And on Tuesday , just as the nation got the welcome news that the Supreme Court had denied review of the frivolous Pennsylvania lawsuit , Paxton filed a motion in the Supreme Court to grant Donald Trump a second @ @ @ @ @ @ @ be the most cynical misuse of the legal process since April 1802 , when Chief Justice John Marshall and Rep. James Bayard sat down in a tavern to plot a legal challenge ( before Marshall ’ s own court ) to the repeal of the Judiciary Act of 1801 .
( See The Great Decision : Jefferson , Adams , Marshall , and the Battle for the Supreme Court by Cliff Sloan and David McKean for details—or just read it anyway , it ’ s a terrific book ) .
Paxton may be @ @ @ @ @ @ @ He was indicted five years ago on state securities-fraud charges and is still awaiting trial ; last month , eight of his own top aides told federal officials that they believed Paxton was guilty of abuse of office , improper influence , and bribery in a separate matter involving a wealthy campaign donor .
But mere garden-variety bribery and fraud pale in turpitude compared to a conscious , deliberate effort to destroy American democracy for political advantage .
And that is why Paxton has now asked the Justices to overturn the election results @ @ @ @ @ @ @ and Wisconsin .
Those four states have a combined 56 electoral votes—enough , if switched to Donald Trump , to give him 288 electoral votes and a renewed lease on the White House .
The chance of this lawsuit having any effect on the election results is , if not none , at least vanishingly small .
The formidable Stephen Vladeck of the University of Texas immediately tweeted that “ The Court is *never* going to hear this one.
” I think that ’ s right ; even Justice Samuel Alito should be @ @ @ @ @ @ @ would be a near-death experience for the Court .
Since Paxton ’ s motion was filed , # MAGA Twitter has been swooning at the news that the Supreme Court has “ added the Texas Attorney General lawsuit to the docket for today !
” This is roughly the same as getting excited because you have been approved for admission to the American Automobile Association .
Any filing in proper form is added to the Court ’ s docket , which is just a list of cases .
And the excitement has deepened @ @ @ @ @ @ @ defendant states to respond by Thursday .
Again , this is hardly a reason to break out the Cheerwine—Supreme Court rules provide that a motion like Paxton ’ s is to be answered by the putative defendants .
That doesn ’ t mean the Court has granted the motion or will hear the case .
It is simply one step on the road to accepting—or denying—the Texas motion .
But the purpose of the lawsuit , I suspect , is not to win in the Court at all ; it is to fulfill @ @ @ @ @ @ @ one nice big beautiful lawsuit ” asking the Supreme Court , which he regards as his property , to award him a second term .
As Republicans in Pennsylvania learned this week , getting a case to the Supreme Court is hard and can be slow—except for one set of cases .
Disputes between states fall into the high court ’ s exclusive “ original jurisdiction.
” No messing about in trial courts ; if a state sues another state , the case begins in the Supreme Court .
That doesn ’ t @ @ @ @ @ @ @ and consider this absurd request ; over the years , the Court has simply declined to hear “ original ” cases it considered bogus .
It will almost certainly do that in this case .
To begin with , there is no real dispute here .
It is hornbook law that to bring a federal suit , the plaintiff ( individual , corporation , or state ) must have “ standing to sue ” —meaning , in essence , a genuine injury caused by the defendant that can be remedied by a court @ @ @ @ @ @ @ states have certified electors for a candidate that Ken Paxton doesn ’ t like .
Probably that makes him very , very sad .
But what injury is there to the State of Texas ?
Let ’ s not futz around here : Texas has no legal interest in which presidential candidate the people of other states select .
Texas has one role in the presidential contest : select its own electors , following the Constitution and its own statutes .
After that , the state as a state has no part in @ @ @ @ @ @ @ if it did , where is the legal injury in participating in an election where your candidate loses ?
That happens all the time , and the answer is to try again in four years .
The claim in this case is that the defendant states followed their own procedures for conducting the election and that some of those procedures violated those states ’ own laws .
Again , even if true , how is it bothering Texas ?
There ’ s no real connection between these alleged state-law violations and the outcome @ @ @ @ @ @ @ a claim that these same states for some reason allowed massive fraud : If these scandalous “ facts ” sound familiar , they should—they are the same gauzy lies that state and federal courts have uniformly rejected as false and unbelievable .
And finally , consider the relief that Texas has asked for—a Supreme Court order voiding the presidential election in four states .
Roughly 18 million Americans voted in those four states .
Paxton shows no interest in those voters ’ rights ; he asks the Supreme Court to brush aside their @ @ @ @ @ @ @ how their elected state officials read their own state laws .
But does Paxton , or “ Texas , ” really even object to those legal judgments ?
Ask yourself this question : if Texas genuinely objected to the changes in voting procedures made in Georgia , Michigan , Pennsylvania , and Wisconsin—if those changes so clearly violated state law and the U.S. Constitution—why did Texas wait until “ safe harbor ” day to bring a lawsuit ?
Where was the argus-eyed Paxton when the statutory changes and administrative rules were put in @ @ @ @ @ @ @ Why wasn ’ t a challenge brought immediately after the election ?
As District Judge Linda Parker wrote in a decision rendered Monday in a Michigan case , “ While Plaintiffs delayed , the ballots were cast ; the votes were counted ; and the results were certified.
” Paxton was waiting , waiting first to see whether Trump would win the election—and , after that , waiting until he thought he could prevent the certification of the electors on “ safe harbor day.
” Lawyers signed their names to pleadings alleging these @ @ @ @ @ @ @ ; that raised eyebrows , Lawyers for Texas re-allege them now after they have been repeatedly shown to be bogus .
That should do more than that .
Federal Rule of Civil Procedure 11 provides that an attorney ’ s signature on a pleading represents to the court that the material in it is supported by good-faith legal arguments and genuine evidence—and that it is not being “ presented for any improper purpose ” —including “ unnecessary delay.
” Under the Texas Disciplinary Rules of Professional Conduct , a lawyer may not “ @ @ @ @ @ @ @ or law to a tribunal , ” nor “ offer or use evidence that the lawyer knows to be false.
” Paxton and the other signatories—Brent Webster of the AG ’ s office and “ special counsel ” Lawrence Joseph—have flagrantly violated these rules .
There is no proper purpose for this filing other than to prevent the electoral process from functioning .
There is no serious legal claim to support the suit .
There is no evidentiary support , or prospect of same , for their “ factual ” claims .
Ken @ @ @ @ @ @ @ and Texas rules .
And for what ?
He knows he will not win Trump a second term .
What he will do is ( in the style of low-level criminals around the world ) please the big boss by trying to get him what he wants .
Perhaps he hopes this will gain him popularity among the Trump base .
But whatever selfish benefit he gains , he will accomplish nothing good .
He will have done two horrible things .
First , he will require the Court either to be complicit @ @ @ @ @ @ @ ’ t ) or to reject the complaint ( thereby incurring the assault on its credibility that Trump mounts every time it has rejected his legal claims , and further damaging the Court ’ s credibility ) .
And , second , he will strengthen the belief among some Americans—God knows how many at this point—that the election is invalid , and the American republic has no claim on their allegiance .
Monetary sanctions ?
Disbarment ?
Hardly enough .
I can ’ t quite figure out the right charge to bring against @ @ @ @ @ @ @ the federal courts in order to destroy the nation .
But by God , whatever we call it , prison seems a minor penalty for that offense .

What we are witnessing during this endless post-election period is a coordinated attempt to murder the American system of government. This crime is being carried out in public by lawyers who have taken an oath to uphold the Constitution they seek to destroy.
Spare me sophistry about “the better angels of our nature.” These chiseling shysters should face not just disbarment but monetary sanctions, and maybe jail.
And my lead nominee for disbarment, fines, and even prison is not the pathetic dotard Rudy Giuliani or the deranged Kraken keeper Sidney Powell; as of Tuesday, December 8, it is Texas Attorney General Ken Paxton.
For years, Paxton has relished his role as a kind of national marplot, sticking spikes in the wheels of progressive legislation. “I get up in the morning and I sue the federal government,” he said during the Obama years. And on Tuesday, just as the nation got the welcome news that the Supreme Court had denied review of the frivolous Pennsylvania lawsuit, Paxton filed a motion in the Supreme Court to grant Donald Trump a second term.
That “lawsuit” may be the most cynical misuse of the legal process since April 1802, when Chief Justice John Marshall and Rep. James Bayard sat down in a tavern to plot a legal challenge (before Marshall’s own court) to the repeal of the Judiciary Act of 1801. (See The Great Decision: Jefferson, Adams, Marshall, and the Battle for the Supreme Court by Cliff Sloan and David McKean for details—or just read it anyway, it’s a terrific book).
Paxton may be on his way to jail anyway. He was indicted five years ago on state securities-fraud charges and is still awaiting trial; last month, eight of his own top aides told federal officials that they believed Paxton was guilty of abuse of office, improper influence, and bribery in a separate matter involving a wealthy campaign donor.
But mere garden-variety bribery and fraud pale in turpitude compared to a conscious, deliberate effort to destroy American democracy for political advantage. And that is why Paxton has now asked the Justices to overturn the election results in Georgia, Michigan, Pennsylvania, and Wisconsin. Those four states have a combined 56 electoral votes—enough, if switched to Donald Trump, to give him 288 electoral votes and a renewed lease on the White House.
The chance of this lawsuit having any effect on the election results is, if not none, at least vanishingly small. The formidable Stephen Vladeck of the University of Texas immediately tweeted that “The Court is *never* going to hear this one.” I think that’s right; even Justice Samuel Alito should be able to see that entering this morass would be a near-death experience for the Court.
Since Paxton’s motion was filed, #MAGA Twitter has been swooning at the news that the Supreme Court has “added the Texas Attorney General lawsuit to the docket for today!” This is roughly the same as getting excited because you have been approved for admission to the American Automobile Association. Any filing in proper form is added to the Court’s docket, which is just a list of cases. And the excitement has deepened because the Court has asked the four defendant states to respond by Thursday. Again, this is hardly a reason to break out the Cheerwine—Supreme Court rules provide that a motion like Paxton’s is to be answered by the putative defendants. That doesn’t mean the Court has granted the motion or will hear the case. It is simply one step on the road to accepting—or denying—the Texas motion.
But the purpose of the lawsuit, I suspect, is not to win in the Court at all; it is to fulfill Donald Trump’s wish for “one nice big beautiful lawsuit” asking the Supreme Court, which he regards as his property, to award him a second term. As Republicans in Pennsylvania learned this week, getting a case to the Supreme Court is hard and can be slow—except for one set of cases. Disputes between states fall into the high court’s exclusive “original jurisdiction.” No messing about in trial courts; if a state sues another state, the case begins in the Supreme Court.
That doesn’t mean the Court must hear oral argument and consider this absurd request; over the years, the Court has simply declined to hear “original” cases it considered bogus. It will almost certainly do that in this case.
To begin with, there is no real dispute here. It is hornbook law that to bring a federal suit, the plaintiff (individual, corporation, or state) must have “standing to sue”—meaning, in essence, a genuine injury caused by the defendant that can be remedied by a court order.
I get that the four states have certified electors for a candidate that Ken Paxton doesn’t like. Probably that makes him very, very sad. But what injury is there to the State of Texas? Let’s not futz around here: Texas has no legal interest in which presidential candidate the people of other states select. Texas has one role in the presidential contest: select its own electors, following the Constitution and its own statutes.
After that, the state as a state has no part in the choice of president. And even if it did, where is the legal injury in participating in an election where your candidate loses? That happens all the time, and the answer is to try again in four years. The claim in this case is that the defendant states followed their own procedures for conducting the election and that some of those procedures violated those states’ own laws.
Again, even if true, how is it bothering Texas? There’s no real connection between these alleged state-law violations and the outcome; Texas has cobbled them together with a claim that these same states for some reason allowed massive fraud:
the physical blocking and kicking out of Republican poll challengers; thousands of the same ballots run multiple times through tabulators; mysterious late-night dumps of thousands of ballots at tabulation centers; illegally backdating thousands of ballots; signature verification procedures ignored; more than 173,000 ballots in the Wayne County, MI center that cannot be tied to a registered voter …. poll workers erupting in cheers as poll challengers are removed from vote counting centers; poll watchers being blocked from entering vote counting centers—despite even having a court order to enter; suitcases full of ballots being pulled out from underneath tables after poll watchers were told to leave.
If these scandalous “facts” sound familiar, they should—they are the same gauzy lies that state and federal courts have uniformly rejected as false and unbelievable.
And finally, consider the relief that Texas has asked for—a Supreme Court order voiding the presidential election in four states. Roughly 18 million Americans voted in those four states. Paxton shows no interest in those voters’ rights; he asks the Supreme Court to brush aside their votes because he didn’t like how their elected state officials read their own state laws.
But does Paxton, or “Texas,” really even object to those legal judgments? Ask yourself this question: if Texas genuinely objected to the changes in voting procedures made in Georgia, Michigan, Pennsylvania, and Wisconsin—if those changes so clearly violated state law and the U.S. Constitution—why did Texas wait until “safe harbor” day to bring a lawsuit? Where was the argus-eyed Paxton when the statutory changes and administrative rules were put in place over the past two years? Why wasn’t a challenge brought immediately after the election? As District Judge Linda Parker wrote in a decision rendered Monday in a Michigan case, “While Plaintiffs delayed, the ballots were cast; the votes were counted; and the results were certified.”
Paxton was waiting, waiting first to see whether Trump would win the election—and, after that, waiting until he thought he could prevent the certification of the electors on “safe harbor day.”
Lawyers signed their names to pleadings alleging these “facts” in the original cases; that raised eyebrows, Lawyers for Texas re-allege them now after they have been repeatedly shown to be bogus. That should do more than that.
Federal Rule of Civil Procedure 11 provides that an attorney’s signature on a pleading represents to the court that the material in it is supported by good-faith legal arguments and genuine evidence—and that it is not being “presented for any improper purpose”—including “unnecessary delay.” Under the Texas Disciplinary Rules of Professional Conduct, a lawyer may not “make a false statement of material fact or law to a tribunal,” nor “offer or use evidence that the lawyer knows to be false.”
Paxton and the other signatories—Brent Webster of the AG’s office and “special counsel” Lawrence Joseph—have flagrantly violated these rules. There is no proper purpose for this filing other than to prevent the electoral process from functioning. There is no serious legal claim to support the suit. There is no evidentiary support, or prospect of same, for their “factual” claims.
Ken Paxton has made a mockery of federal and Texas rules. And for what? He knows he will not win Trump a second term. What he will do is (in the style of low-level criminals around the world) please the big boss by trying to get him what he wants. Perhaps he hopes this will gain him popularity among the Trump base. But whatever selfish benefit he gains, he will accomplish nothing good. He will have done two horrible things. First, he will require the Court either to be complicit in stealing an election (it won’t) or to reject the complaint (thereby incurring the assault on its credibility that Trump mounts every time it has rejected his legal claims, and further damaging the Court’s credibility).
And, second, he will strengthen the belief among some Americans—God knows how many at this point—that the election is invalid, and the American republic has no claim on their allegiance.
Monetary sanctions? Disbarment? Hardly enough. I can’t quite figure out the right charge to bring against a public official who seeks to prostitute the federal courts in order to destroy the nation. But by God, whatever we call it, prison seems a minor penalty for that offense.


washingtonmonthly--2020-12-11--Status Anxiety on the Right

Status Anxiety on the Right

During the 2020 presidential campaign , Joe Biden talked about restoring the soul of the nation .
After the networks had projected him to be the winner , the president-elect said , “ It ’ s time to put away the harsh rhetoric , to lower the temperature , to see each other again , to listen to each other again .
To make progress , we must stop treating our opponents as our enemy.
” While it ’ s important for leaders to articulate aspirational ideals , cynicism leads us to doubt whether those sentiments are realistic during a @ @ @ @ @ @ @ .
But if there is any chance of lowering the temperature of our political rhetoric , it is important for us to understand how the heat got turned up .
In a column titled , “ The Resentment That Never Sleeps , ” journalist Thomas Edsall identifies the heart of the problem as anxiety over declining social status—a subjective perception that is tied to a person ’ s sense of identity .
As such , it represents how individuals gauge their status based on the cultural hierarchies we ’ ve constructed around things @ @ @ @ @ @ @ religion , geography , education , etc .
Writing in the run-up to the 2016 presidential election , Rebecca Traister captured what has been happening in an article titled , “ The Election and the Death Throes of White Male Power.
” To the extent that we are witnessing the death of white male power , those who have constructed their identities around it are feeling threatened .
That anxiety is what drives people who are attracted to Trump ’ s politics of resentment .
White supremacist Richard Spencer was actually one of @ @ @ @ @ @ @ tapping into back in 2015 .
Here ’ s what he told Evan Osnos of the New Yorker : Note that Spencer said that Trump was exploiting a fear white people have about what might happen as a result of changing demographics .
Some of the experts Edsall consulted for this piece pointed out that the loss of social status is not something Trump supporters actually experience .
It ’ s something they fear .
For example , here is how Peter Hall , a professor of government at Harvard , described those @ @ @ @ @ @ @ often drawn to the appeals of right-wing populist politicians , such as Trump , tend to be those who sit several rungs up the socioeconomic ladder in terms of their income or occupation .
My conjecture is that it is people in this kind of social position who are most susceptible to what Barbara Ehrenreich called a “ fear of falling ” — namely , anxiety , in the face of an economic or cultural shock , that they might fall further down the social ladder , ” a phenomenon often described as @ @ @ @ @ @ @ extent that the 2020 exit polls are accurate , they back up Hall ’ s contention .
Trump lost voters making less than $ 50,000 a year by 11 points , and those making between $ 50,000 and $ 100,000 by 15 points .
The only income group Trump won was those making over $ 100,000 , where he prevailed by 12 points .
This obsession with a perceived loss of social status explains why neither the president nor the Republican Party felt the need to campaign on an actual platform of proposed @ @ @ @ @ @ @ , a political scientist at the University of Zurich , told Edsall about that : It is almost exclusively political actors from the right and the radical right that actively campaign on the status issue .
They emphasize implications of changing status hierarchies that might negatively affect the societal standing of their core constituencies and thereby aim to mobilize voters who fear , but have not yet experienced , societal regression .
The observation that campaigning on potential status loss is much more widespread and , apparently , more politically worthwhile than campaigning @ @ @ @ @ @ @ of sense in light of the long-established finding in social psychology that citizens care much more about a relative loss compared to same-sized gains .
It isn ’ t that Trump supporters voted against their own interests .
It ’ s that their interests are in having a president who validates their fears and lashes out at those they ’ ve identified as a threat .
That is why Democratic policies to address their concerns tend to fall on deaf ears .
So can anything be done to “ heal the divide ?
@ @ @ @ @ @ @ social status is threatened by a pluralistic democracy , the answer is , “ not much.
” What these folks are experiencing is actually more psychological than political .
Their identities have been built on a foundation of supremacy—which is on a collision course with change .
Unless they find it within themselves to adapt , a crash is inevitable .
In fact , it is already underway .

During the 2020 presidential campaign, Joe Biden talked about restoring the soul of the nation. After the networks had projected him to be the winner, the president-elect said, “It’s time to put away the harsh rhetoric, to lower the temperature, to see each other again, to listen to each other again. To make progress, we must stop treating our opponents as our enemy.”
While it’s important for leaders to articulate aspirational ideals, cynicism leads us to doubt whether those sentiments are realistic during a time of such heightened asymmetric political polarization. But if there is any chance of lowering the temperature of our political rhetoric, it is important for us to understand how the heat got turned up.
In a column titled, “The Resentment That Never Sleeps,” journalist Thomas Edsall identifies the heart of the problem as anxiety over declining social status—a subjective perception that is tied to a person’s sense of identity. As such, it represents how individuals gauge their status based on the cultural hierarchies we’ve constructed around things like class, gender, race, religion, geography, education, etc.
Writing in the run-up to the 2016 presidential election, Rebecca Traister captured what has been happening in an article titled, “The Election and the Death Throes of White Male Power.”
This moment, this election, these years represent the death throes of exclusive white male power in the United States…The public spectacle of this presidential election, and the two that have preceded it, are inextricably linked to the racialized and gendered anger and violence we see around us…Whatever their flaws, their political shortcomings, their progressive dings and dents, Barack Obama and Hillary Clinton mean a lot. They represent an altered power structure and changed calculations about who in this country may lead.
To the extent that we are witnessing the death of white male power, those who have constructed their identities around it are feeling threatened. That anxiety is what drives people who are attracted to Trump’s politics of resentment. White supremacist Richard Spencer was actually one of the first to identify what Trump was tapping into back in 2015. Here’s what he told Evan Osnos of the New Yorker:
“Trump, on a gut level, kind of senses that this is about demographics, ultimately. We’re moving into a new America.” He said, “I don’t think Trump is a white nationalist,” but he did believe that Trump reflected “an unconscious vision that white people have – that their grandchildren might be a hated minority in their own country. I think that scares us. They probably aren’t able to articulate it. I think it’s there. I think that, to a great degree, explains the Trump phenomenon.”
Note that Spencer said that Trump was exploiting a fear white people have about what might happen as a result of changing demographics. Some of the experts Edsall consulted for his piece pointed out that the loss of social status is not something Trump supporters actually experience. It’s something they fear. For example, here is how Peter Hall, a professor of government at Harvard, described those who are affected:
The people most often drawn to the appeals of right-wing populist politicians, such as Trump, tend to be those who sit several rungs up the socioeconomic ladder in terms of their income or occupation. My conjecture is that it is people in this kind of social position who are most susceptible to what Barbara Ehrenreich called a “fear of falling” — namely, anxiety, in the face of an economic or cultural shock, that they might fall further down the social ladder,” a phenomenon often described as “last place aversion.
To the extent that the 2020 exit polls are accurate, they back up Hall’s contention. Trump lost voters making less than $50,000 a year by 11 points, and those making between $50,000 and $100,000 by 15 points. The only income group Trump won was those making over $100,000, where he prevailed by 12 points.
This obsession with a perceived loss of social status explains why neither the president nor the Republican Party felt the need to campaign on an actual platform of proposed policies. Here is what Thomas Kurer, a political scientist at the University of Zurich, told Edsall about that:
It is almost exclusively political actors from the right and the radical right that actively campaign on the status issue. They emphasize implications of changing status hierarchies that might negatively affect the societal standing of their core constituencies and thereby aim to mobilize voters who fear, but have not yet experienced, societal regression. The observation that campaigning on potential status loss is much more widespread and, apparently, more politically worthwhile than campaigning on status gains and makes a lot of sense in light of the long-established finding in social psychology that citizens care much more about a relative loss compared to same-sized gains.
It isn’t that Trump supporters voted against their own interests. It’s that their interests are in having a president who validates their fears and lashes out at those they’ve identified as a threat. That is why Democratic policies to address their concerns tend to fall on deaf ears.
So can anything be done to “heal the divide?” When one side assumes that their social status is threatened by a pluralistic democracy, the answer is, “not much.”
What these folks are experiencing is actually more psychological than political. Their identities have been built on a foundation of supremacy—which is on a collision course with change. Unless they find it within themselves to adapt, a crash is inevitable. In fact, it is already underway.


washingtonmonthly--2020-12-11--The FTC’s Strong Case Against Facebook

The FTC’s Strong Case Against Facebook

After years of inadequate fines , paltry settlements for overtly unfair and deceptive practices , profoundly substandard merger reviews , and numerous instances of broken consumer trust and unwarranted privacy invasions , on Wednesday the Federal Trade Commission finally initiated a blockbuster lawsuit , alongside a separate suit with 48 state attorneys general , against Facebook .
While the FTC has a significant chance of prevailing in its suit , the agency made two decisions that substantially weakened its legal firepower .
Many of the FTC ’ s factual findings in the complaint overlaps with the landmark 450-page House Antitrust @ @ @ @ @ @ @ extensive House report and the FTC ’ s complaint exposed almost a decade of predatory and exclusionary practices by Facebook and established that the company was purposefully monopolizing critical information and internet communications markets .
The FTC ’ s lawsuit primarily targets Facebook ’ s preemptive acquisitions of the photo-sharing application Instagram and communications platform WhatsApp .
By integrating and copying their features , these acquisitions allowed Facebook to entrench its monopoly power in social networking , deter new entrants , and deprive consumers of alternative services .
In addition to seeking penalties @ @ @ @ @ @ @ to make acquisitions , the FTC ’ s lawsuit asks the court to mandate that Facebook divest ( i.e.
, break off ) Instagram and WhatsApp from the company and establish them as independent businesses .
The FTC rightfully claims that this remedy will extinguish significant aspects of Facebook ’ s dominant and durable position in social networking .
While the FTC has declined previous opportunities to bring antitrust action against Facebook , its current action is justified .
Facebook has consistently used its dominance to neutralize competitive threats .
For example , @ @ @ @ @ @ @ , from gaining momentum as a viable competitor against Facebook , in 2013 , CEO Mark Zuckerberg personally approved revoking Vine ’ s access to Facebook ’ s platform to inhibit the upstart from obtaining Facebook users .
Facebook also blacklisted companies from accessing its platform unless they spent more money on Facebook or because Facebook wanted to block a potential competitor from circumventing its monopoly .
Facebook has routinely acquired its competitors to entrench its position and destroy potential competitors .
Between 2007 and 2019 , it acquired almost 80 companies .
@ @ @ @ @ @ @ acquired Instagram as “ insurance ” to ensure the success of its other products .
Only the corporation ’ s 2012 purchase of Instagram received any scrutiny from federal agencies , but , after a hasty review , was passed for review by the FTC .
An even quicker review of WhatsApp took place in 2014 without any analysis of the anticompetitive effects the acquisition would have on communications applications .
Skeptics of the FTC ’ s lawsuit will point out that the agency should not have another opportunity to review these mergers @ @ @ @ @ @ @ the apple .
However , the agency did not conclusively approve Facebook ’ s acquisitions of Instagram and WhatsApp .
The FTC merely chose not to stop them in court , allowing the agency to retain the right to revisit and review them later .
Facebook is already arguing that the FTC action against it will have a chilling effect on all mergers .
But that ’ s not the case .
FTC data shows that reviewing these types of mergers has been quite common , with the FTC and DOJ challenging 18 @ @ @ @ @ @ @ .
There are also multiple instances of Facebook deceiving its users about their privacy on the platform , the data it harvests , and how the company or third-parties use that data – much of which was revealed in the now infamous Cambridge Analytica scandal .
The FTC has fined Facebook $ 5 billion for its deceptive privacy practices–an amount representing less than 8 percent of the company ’ s 2019 revenues .
The House report revealed that Facebook ’ s predatory practices also helped it amass enough market power in digital advertising @ @ @ @ @ @ @ last 15 years , Facebook and Google have captured billions of dollars in advertising from traditional outlets .
Facebook maintains a stranglehold on how Americans obtain their news , with 43 % of the population often getting their news from the site .
Additionally , Facebook is also a top referrer for sites to acquire visitors .
Thus , not only has Facebook monopolized the primary revenue stream for news outlets , but the corporation is also the primary platform as to how these news sites get views of their digital content .
@ @ @ @ @ @ @ algorithms can fundamentally determine what news is shown to viewers and what content users ultimately see .
Facebook ’ s business model has had profoundly negative effects on democracy .
As a result of Facebook ’ s and Google ’ s oligopoly over digital advertising , 25 % of American newspapers have closed or merged .
The absolute number of journalists has declined by 60 % , and 1,800 communities have no local reporting since 2004 .
Both Facebook and Google have sought to pay off their critics by offering multi-million-dollar grants to @ @ @ @ @ @ @ amount to crumbs compared to the devastation these corporations have caused .
At the same time , the company continues to inadequately deal with disseminating fake news , conspiracies , misinformation , and addictive content in the name of retaining users and generating advertising dollars .
As Representative David Cicilline ( D-RI ) , head of the House Antitrust Subcommittee , stated aptly these practices are “ too profitable to eliminate completely [ . ]
” Without significant structural change spurred by antitrust lawsuits , Facebook will likely remain an immoveable monopoly .
@ @ @ @ @ @ @ durable market position is that Google has tried several times and invested billions of dollars to displace or diminish Facebook ’ s monopoly position in the social networking industry .
Google developed and promoted Orkut and Google+ multiple times to try to take on Facebook .
If Google has failed to create a viable competitor social networking site every time , that ’ s telling .
Facebook likely could not have gotten away with so much nefarious , predatory , and illegal conduct if not for its entrenched monopoly power .
Taken together @ @ @ @ @ @ @ the law is perfectly tuned to be tackled by the FTC .
Some background will show how the FTC could have gone even farther this week .
Congress created the FTC in a wave of progressive activism after the Supreme Court in its infamous 1911 case that broke up Standard Oil shrewdly restricted the Sherman Antitrust Act , our nation ’ s primary anti-monopoly law .
The court restricted Sherman Act violations to only predatory and exclusionary behavior that was , in the court ’ s exclusive view , “ unreasonable.
” This @ @ @ @ @ @ @ s legislative intent and significant public demand for federal action against concentrated corporate power when Congress enacted the Sherman Act in 1890 .
After the Supreme Court ’ s Standard Oil decision , the public backlash was swift , and Congress created the FTC in 1914 .
Congress granted the FTC broad authority to define and enforce its namesake statute prohibiting both “ unfair methods of competition ” and “ unfair or deceptive acts or practices.
” Congress specifically chose these expansive terms to prevent the courts from restricting the agency ’ s @ @ @ @ @ @ @ agency would have the necessary congressionally authorized power to be a guardian against concentrated corporate power .
Senator James Reed , one of the architects of the FTC Act , stated that the agency would be a “ death blow to monopoly ” in America .
Here ’ s where the FTC could have used an even more powerful weapon .
As the agency did in its lawsuit , the FTC can invoke its namesake statute to enforce the Sherman Act .
But , the FTC can invoke Section 5 on its own @ @ @ @ @ @ @ 5 route gives the agency enhanced statutory firepower against formidable monopolies like Facebook since controlling Supreme Court precedent grants the FTC substantial deference to interpret it .
In the words of the Supreme Court , the FTC “ considers public values beyond simply those enshrined in the letter or encompassed in the spirit of the antitrust laws.
” However , in its lawsuit against Facebook , the FTC decided to restrict its claims to fit within the Sherman Act rather than its Section 5 authority .
The agency has , therefore , radically @ @ @ @ @ @ @ from the courts .
The FTC has missed an opportunity to use a bazooka in a knife fight and has instead chosen to battle Facebook using the Judiciary ’ s restricted interpretation of the Sherman Act .
The agency should have brought this case as a pure Section 5 claim .
The FTC made an additional error by bringing the case in federal court rather than initiating its suit against Facebook in its own administrative forum .
Unlike lawsuits in federal court , where the case is now , controlling Supreme Court precedent @ @ @ @ @ @ @ deference for any fact-finding done by the agency during the administrative process , which carries over for any subsequent appeals .
Here again , the FTC chose to fight Facebook on less favorable terms by initiating the case in federal court .
Nonetheless , the agency ’ s lawsuit is a bold attempt to correct its past failures .
The agency could have taken other legal avenues or even implement other prophylactic measures such as public utility regulations or bright-line merger rules to prevent Facebook ’ s predatory conduct from arising .
Fortunately @ @ @ @ @ @ @ separation to break up Facebook .
This has been the preferred way to tackle monopolies and has decades of backing by the Supreme Court as “ the most important of antitrust remedies.
” The court has a duty to restore competition in the marketplace when antitrust violations are found by the agency , and it should follow through with the FTC ’ s requested remedy to break up Facebook

After years of inadequate fines, paltry settlements for overtly unfair and deceptive practices, profoundly substandard merger reviews, and numerous instances of broken consumer trust and unwarranted privacy invasions, on Wednesday the Federal Trade Commission finally initiated a blockbuster lawsuit, alongside a separate suit with 48 state attorneys general, against Facebook.
While the FTC has a significant chance of prevailing in its suit, the agency made two decisions that substantially weakened its legal firepower.
Many of the FTC’s factual findings in the complaint overlaps with the landmark 450-page House Antitrust Subcommittee report released in October. The extensive House report and the FTC’s complaint exposed almost a decade of predatory and exclusionary practices by Facebook and established that the company was purposefully monopolizing critical information and internet communications markets.
The FTC’s lawsuit primarily targets Facebook’s preemptive acquisitions of the photo-sharing application Instagram and communications platform WhatsApp. By integrating and copying their features, these acquisitions allowed Facebook to entrench its monopoly power in social networking, deter new entrants, and deprive consumers of alternative services. In addition to seeking penalties such as restricting Facebook’s ability to make acquisitions, the FTC’s lawsuit asks the court to mandate that Facebook divest (i.e., break off) Instagram and WhatsApp from the company and establish them as independent businesses. The FTC rightfully claims that this remedy will extinguish significant aspects of Facebook’s dominant and durable position in social networking.
While the FTC has declined previous opportunities to bring antitrust action against Facebook, its current action is justified. Facebook has consistently used its dominance to neutralize competitive threats. For example, to prevent Vine, a video application, from gaining momentum as a viable competitor against Facebook, in 2013, CEO Mark Zuckerberg personally approved revoking Vine’s access to Facebook’s platform to inhibit the upstart from obtaining Facebook users. Facebook also blacklisted companies from accessing its platform unless they spent more money on Facebook or because Facebook wanted to block a potential competitor from circumventing its monopoly.
Facebook has routinely acquired its competitors to entrench its position and destroy potential competitors. Between 2007 and 2019, it acquired almost 80 companies. The House report revealed that Facebook explicitly acquired Instagram as “insurance” to ensure the success of its other products. Only the corporation’s 2012 purchase of Instagram received any scrutiny from federal agencies, but, after a hasty review, was passed for review by the FTC. An even quicker review of WhatsApp took place in 2014 without any analysis of the anticompetitive effects the acquisition would have on communications applications. Skeptics of the FTC’s lawsuit will point out that the agency should not have another opportunity to review these mergers, a second or third bite at the apple. However, the agency did not conclusively approve Facebook’s acquisitions of Instagram and WhatsApp. The FTC merely chose not to stop them in court, allowing the agency to retain the right to revisit and review them later. Facebook is already arguing that the FTC action against it will have a chilling effect on all mergers. But that’s not the case. FTC data shows that reviewing these types of mergers has been quite common, with the FTC and DOJ challenging 18 previously completed mergers during the Bush Administration.
There are also multiple instances of Facebook deceiving its users about their privacy on the platform, the data it harvests, and how the company or third-parties use that data – much of which was revealed in the now infamous Cambridge Analytica scandal. The FTC has fined Facebook $5 billion for its deceptive privacy practices–an amount representing less than 8 percent of the company’s 2019 revenues.
The House report revealed that Facebook’s predatory practices also helped it amass enough market power in digital advertising to hollow out journalism. Over the last 15 years, Facebook and Google have captured billions of dollars in advertising from traditional outlets. Facebook maintains a stranglehold on how Americans obtain their news, with 43% of the population often getting their news from the site. Additionally, Facebook is also a top referrer for sites to acquire visitors. Thus, not only has Facebook monopolized the primary revenue stream for news outlets, but the corporation is also the primary platform as to how these news sites get views of their digital content. This control means that Facebook’s algorithms can fundamentally determine what news is shown to viewers and what content users ultimately see.
Facebook’s business model has had profoundly negative effects on democracy. As a result of Facebook’s and Google’s oligopoly over digital advertising, 25% of American newspapers have closed or merged. The absolute number of journalists has declined by 60%, and 1,800 communities have no local reporting since 2004. Both Facebook and Google have sought to pay off their critics by offering multi-million-dollar grants to journalism organizations. Nevertheless, these quasi-bribes amount to crumbs compared to the devastation these corporations have caused. At the same time, the company continues to inadequately deal with disseminating fake news, conspiracies, misinformation, and addictive content in the name of retaining users and generating advertising dollars. As Representative David Cicilline (D-RI), head of the House Antitrust Subcommittee, stated aptly , these practices are “too profitable to eliminate completely[.]”
Without significant structural change spurred by antitrust lawsuits, Facebook will likely remain an immoveable monopoly. Perhaps most revealing of Facebook’s durable market position is that Google has tried several times and invested billions of dollars to displace or diminish Facebook’s monopoly position in the social networking industry. Google developed and promoted Orkut and Google+ multiple times to try to take on Facebook. If Google has failed to create a viable competitor social networking site every time, that’s telling.
Facebook likely could not have gotten away with so much nefarious, predatory, and illegal conduct if not for its entrenched monopoly power. Taken together, Facebook’s repeated contempt for the law is perfectly tuned to be tackled by the FTC.
Some background will show how the FTC could have gone even farther this week. Congress created the FTC in a wave of progressive activism after the Supreme Court in its infamous 1911 case that broke up Standard Oil shrewdly restricted the Sherman Antitrust Act, our nation’s primary anti-monopoly law. The court restricted Sherman Act violations to only predatory and exclusionary behavior that was, in the court’s exclusive view, “unreasonable.” This restriction was contrary to the act’s legislative intent and significant public demand for federal action against concentrated corporate power when Congress enacted the Sherman Act in 1890. After the Supreme Court’s Standard Oil decision, the public backlash was swift, and Congress created the FTC in 1914.
Congress granted the FTC broad authority to define and enforce its namesake statute prohibiting both “unfair methods of competition” and “unfair or deceptive acts or practices.” Congress specifically chose these expansive terms to prevent the courts from restricting the agency’s authority. These words ensured that the agency would have the necessary congressionally authorized power to be a guardian against concentrated corporate power. Senator James Reed, one of the architects of the FTC Act, stated that the agency would be a “death blow to monopoly” in America.
Here’s where the FTC could have used an even more powerful weapon. As the agency did in its lawsuit, the FTC can invoke its namesake statute to enforce the Sherman Act. But, the FTC can invoke Section 5 on its own without the Sherman Act. The Section 5 route gives the agency enhanced statutory firepower against formidable monopolies like Facebook since controlling Supreme Court precedent grants the FTC substantial deference to interpret it. In the words of the Supreme Court, the FTC “considers public values beyond simply those enshrined in the letter or encompassed in the spirit of the antitrust laws.”
However, in its lawsuit against Facebook, the FTC decided to restrict its claims to fit within the Sherman Act rather than its Section 5 authority. The agency has, therefore, radically restricted the deference it could have received from the courts. The FTC has missed an opportunity to use a bazooka in a knife fight and has instead chosen to battle Facebook using the Judiciary’s restricted interpretation of the Sherman Act. The agency should have brought this case as a pure Section 5 claim.
The FTC made an additional error by bringing the case in federal court rather than initiating its suit against Facebook in its own administrative forum. Unlike lawsuits in federal court, where the case is now, controlling Supreme Court precedent warrants that the courts grant the commission deference for any fact-finding done by the agency during the administrative process, which carries over for any subsequent appeals. Here again, the FTC chose to fight Facebook on less favorable terms by initiating the case in federal court.
Nonetheless, the agency’s lawsuit is a bold attempt to correct its past failures. The agency could have taken other legal avenues or even implement other prophylactic measures such as public utility regulations or bright-line merger rules to prevent Facebook’s predatory conduct from arising. Fortunately, the FTC’s requested structural separation to break up Facebook. This has been the preferred way to tackle monopolies and has decades of backing by the Supreme Court as “the most important of antitrust remedies.” The court has a duty to restore competition in the marketplace when antitrust violations are found by the agency, and it should follow through with the FTC’s requested remedy to break up Facebook