Good Friday Morning, except Time Magazine, who named Joe Biden and Kamala Harris as its “Person of the Year.” It’s galling to look around at a year when a historic pandemic has rocked the entire world leading to disruptions in every part of society, to look around at all the racial protests this year over the death of George Floyd, to look at the sacrifices every day Americans have made to survive and keep this country working and then nominate the one guy who stayed in his basement all year and avoided interviews as the Person of the Year.
As a friend texted me after that announcement, “Time said the same thing about Hitler.” Which, you know, is true. I’d have gone with the healthcare workers who have been on the front line of the pandemic. Or maybe the millions of blue-collar Americans who have worked in factories, warehouses, driving trucks, grocery stores, and more to keep the country running while endangering themselves while the rest of the country sheltered and worked remote.
I’m going to get into populism below and the causes and effects concerning some of these election cases. But I’ll note here that elite publications nominating Biden-Harris as the Person of the Year congratulate themselves on surviving 2020. It’s the stuff populist movements get designed to vent anger about. But we’ll get more into that below. Make sure to check out the links section, some good stuff in there.
Where you can find me this week
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Vaccination cards could unintentionally divide society – The Conservative Institute.
Pandemic cosplayers are trying to shape public policy – The Conservative Institute.
The Political Fan Service We Chose.
My writing process involves sitting down Thursday afternoon or evening and cranking out a column and a newsletter back-to-back. That’s incredibly hard right now because all I want to do is sit here and scroll for the latest news and information on all these Star Wars and Marvel updates. I’m huge fans of both franchises and these updates (I mean, seriously, check this stuff out! And the trailers?!?!?).
The most common critique of these lineups is that it’s just fan service. I suppose there’s some truth to that. But as a fan, who will turn over money for these products, I have to say I’m happily serviced.
This fan-service concept is an easy way to view some political decisions too. Political parties and politicians, especially when they’re looking at primaries’ potential, will use fan service to ensure the base stays with them. Who is voting, interacting, and sending in donations to politicians and parties? Like most smart companies, you’re going to go with who brought you there.
If you think along these lines, you’ll understand pretty why 106 Republican House Representatives are willing to sign onto a letter agreeing with the latest Trump election lawsuit. That suit involves Texas and other states suing Georgia, Pennsylvania, and other narrowly won Biden states. Because this lawsuit involves states suing each other, the Supreme Court has original jurisdiction and has to hear the case directly (in most suits, SCOTUS has appellate jurisdiction, meaning matters come up through the lower courts. States suing each other are one of the few constitutionally listed exceptions).
I’m calling this all fan service because, substantively, there’s little merit to the Texas case.
The Texas AG’s lawsuit
Law prof Johnathan Adler breaks down the essence of the claims over at Volokh:
Texas alleges that the four defendant states violated their own laws in making changes to their election procedures and violated the constitution by authorizing or allowing differential treatment of different sets of voters within their states. Because these claims would not be enough, by themselves, to overturn the Electoral College results, the complaint seeks to shoehorn election fraud claims into the argument by alleging “voting irregularities . . . that would be consistent with the unconstitutional relaxation of ballot-integrity protections in those States’ election laws,” and repeats a number of unfounded or unsubstantiated charges relating to missing USB drives and statistical disparities in election results.
Failing to prevent such irregularities, Texas claims, contributed to the constitutional violations alleged. Specifically, Texas claims that by “taking—or allowing—non-legislative actions to change the election rules that would govern the appointment of presidential electors,” the defendant states have violated the Electors Clause, the Equal Protection Clause, and the Due Process Clause. The filings further ask the Supreme Court to prevent the defendant states from appointing electors based upon certified election returns and require the defendant state legislatures to appoint electors directly.
I think Adler deftly explains why there’s no legal merit to the case (in the piece above, and here and here, if you want to jump into the weeds). The lawsuit is, in effect, playing to the crowd. There’s no legal case here. Politically, the situation is worse. Texas asks the Supreme Court to allow states to ignore their law, unbind the electors, and let the state legislators choose who to pick for President.
If you don’t know, here’s what happens with the electoral college. Let’s say we’re talking about Tennessee, where I live. Everyone votes here either early or on election day. After the votes get tallied and a winner announced, in our case Trump, the state then selects a slate of electors to vote for Donald Trump. Because we’re a two-party system, the norm has always been that the Republicans represent a Republican winner and Democratic electors for Democrats. That ensures the vote goes ahead as planned, and people aren’t forced to vote against their conscience.
Texas is saying in their lawsuit that there are such alarming irregularities to the voting processes in places like Pennsylvania, Georgia, and more, that the Supreme Court should allow these states to unbind the electors and not have them choose Democratic electors. Texas wants these other states’ legislatures to select Republican electors to go and vote for Donald Trump.
The actual evidence behind Texas’ lawsuit is weak. It’s so soft other states could join in the case and counter-sue Texas, claiming that there are so many irregularities in Texas that we should unbind those electors too. If this lawsuit succeeded, it would destroy the purpose of voting. Because whoever held power over the state legislature could then decide who wins the Presidential election.
At one point in our country, that was fine. But we’ve reformed the system to allow for voting to determine what happens on election day. If you strip that notion away from the American people, trust in the system would utterly collapse, and we’d have a genuine constitutional crisis.
The Supreme Court isn’t fooled by any of these shenanigans either. The Texas lawsuit reasserts many of the same arguments that have been failing before lower courts. The same “evidence” that keeps getting questioned and falling apart. The only novelty is the fact that the Supreme Court has original jurisdiction over this case. But I don’t expect anything to change here. And I don’t expect some miracle ruling from the conservatives on the Supreme Court because Texas has not offered a single legitimate legal argument.
The least charitable view of the Texas lawsuit is that AG Ken Paxton is seeking a pardon from Trump. Paxton “is the subject of an FBI investigation into allegations he abused his office to benefit a wealthy donor.” This probe is well known, and several attorneys in the Texas AG’s office have resigned over the matter. In the Texas legal world, it’s been the large scuttlebutt. Nebraska Senator Ben Sasse floated the idea that Paxton was acting to get a pardon.
I don’t entirely buy that notion because there’s no guarantee of getting a pardon. I see this fully as fan service. Paxton can launch this lawsuit and then claim, politically later on, that he got attacked by the same deep state people that went after Donald Trump.
Politicians understand this moment better than commentators.
The Revel was a citywide debauch, a rowdy public service the duke was happy to underwrite from his treasury. There were few things like a good Revel to pull the fangs from any unrest before it had time to fester.
The Lies of Locke Lamora – Scott Lynch
One of our time’s significant issues is a deep-seated distrust of the political system. Look at any poll asking people whether they trust things like the media or the government. The numbers are abysmally low. Something to consider about those polls: Conservatives are thoroughly underestimated in all political polling. If that’s true in these public opinion polls, too, you can knock a few more percentage points off those numbers.
But that trust cuts multiple directions. The people don’t trust the government. The government doesn’t trust the people. The people don’t trust the elites. And the elites don’t trust the people.
One of the best essays I’ve read all year was by James Meigs in Commentary Magazine. Few articles have shaped my thinking regarding the pandemic and everyone’s response more. He writes about how “elite panic” has shaped the response. The deep distrust levels have made elite media and public health experts tell what they believe are “noble lies” to manipulate general behavior. But as those lies have fallen apart and people see through the charade, trust has completely collapsed.
That’s partially why we’re in a terrible second wave. Everyone has so much COVID-fatigue because it takes too much time and energy to figure out what parts of the public health advice are useful and which parts are the noble lies. As Meigs explains, as part of the pandemic:
Disaster researchers call this phenomenon “elite panic.” When authorities believe their own citizens will become dangerous, they begin to focus on controlling the public, rather than on addressing the disaster itself. They clamp down on information, restrict freedom of movement, and devote unnecessary energy to enforcing laws they assume are about to be broken. These strategies don’t just waste resources, one study notes; they also “undermine the public’s capacity for resilient behaviors.” In other words, nervous officials can actively impede the ordinary people trying to help themselves and their neighbors.
Elite panic happens in many ways. We’re watching a version of it with these election lawsuits. Republicans are generally afraid of Donald Trump and the non-Fox News outlets like OANN or Newsweek that Trump is amplifying. So to prevent getting blasted by any of these groups, they’re jumping onto a losing lawsuit to say they were a part of the defense of Trump and can’t get blamed for not “fighting.”
They’re afraid of their voters. I don’t blame them. Were I in the shoes of any of these Republican politicians, I’d be tempted to sign onto that letter too. It’s a way to get that win with your base without having to worry about blowback because you know the Supreme Court is the backstop here and will be the adult in the room.
All that brings me back to that quote I brought up above, about the Revel. In that novel, the Revel was a big bloodsport event, like the gladiator games. The society of that novel was deeply unequal and very corrupt. The Revel allowed the people to let out some steam. Much as the Romans used the Coliseum and gladiator games to let the public vent their populist anger (bread and circus).
These election lawsuits function in much the same manner. Politicians and political groups use these to prove to their fans that they’re “fighting the good fight,” and telling them to send more money to the cause. Of course, there are true believers mixed into this effort as well. But some smart people know this is a losing cause.
On the flip side, however, you also have the public. They’re not overly fooled by this, from what I can tell. If they were duped, we wouldn’t be experiencing such sharp divisions along populist lines in both parties. Trumpism and Brexit represent a form of populism on the right. The rise of Democratic-Socialists on the left is the same impulse. It’s all an anger at the establishment parties for not representing the public well.
And so you have the aspect of fan service. Politicians and political groups who stick to that formula get rewarded. Those who don’t aren’t. And it’s not like the politicians are some cynical geniuses playing the public. They are as much a prisoner of the people who elected them as they are anything else. Republicans and Democrats are running out of fear of these flanks or trying to enflame them if they want to build stature.
The typical political move is to see this dynamic as perpetual. The only thing to do is wait for the impulses to fizzle. This mindset is cynical and expects things to die out over time. But that hasn’t happened. This form of populism has been building on the left and right for quite some time. The 2009-10 Tea Party had a mirror on the left with the Occupy movement.
The only way to break this cycle is to break the cynicism on both sides and rebuild the system. Suppose people have better governance and a working system that represents them. In that case, some of this cynicism would dissipate, as would the need for populism. The thing about populism is that it’s always a symptom of something deeper under the surface. Americans haven’t had a working government in a while, and fixing that should be a top priority.
I fear that won’t happen because leadership is simply inadequate. Take a look around at all the various states with harmful COVID-19 restrictions and the outcry — on the left and right — over those restrictions. I know more liberals mad about Democratic decisions in cities over schools than I do conservatives, and I know a lot of conservatives with kids.
But until we get the leadership problems fixed, our leaders’ only political play is fan service. And you can’t blame them for that because the voters demand it. Politicians serve what gets requested of them.
Links of the week
Hunter Biden’s tax inquiry focused on Chinese business dealings: The investigation was opened in 2018, the year before his father announced his candidacy for president, according to a source familiar with the inquiry. – NBC News
With News of Hunter Biden’s Criminal Probe, Recall the Media Outlets That Peddled the “Russian Disinformation” Lie: The now-validated facts about Hunter are precisely those the U.S. media — in tandem with Silicon Valley and the intelligence community — suppressed based on lies. – Glenn Greenwald
Swalwell’s dad, brother no longer Facebook friends with Chinese spy after reports on continued ties: Christine Fang, also known as Fang Fang, arrived in California as a college student in 2011 – Fox News
Still Waiting for the Kraken . . . – National Review
In a leaked recording, Biden says GOP used ‘defund the police’ to ‘beat the living hell’ out of Democrats: The president-elect told civil rights leaders he wants to move ahead on police reform — but cautiously. – NBC News
U.S. Media Readers ‘Strongly Prefer Negative Stories About COVID-19’: The National Bureau of Economic Research finds that U.S. media coverage of the pandemic is far bleaker than in other countries. – Reason Magazine
Why Does Corporate Media Amplify John Brennan’s Neverending Lies? The only inadvertent benefit of Brennan’s airtime is that it exposes how unmoored our ruling class is from the public it is supposed to serve. – The Federalist
The New Roberts Court Releases Its First Opinions in Argued Cases – Volokh Conspiracy
Twitter Thread(s) of the week
Satire of the week
Thanks for reading!