Rethinking Corporatism

The reaction of internet platforms like Twitter and Facebook to the events of January 6, 2021 has drawn lots of pushback from the right wing. Many have voiced concern over the First Amendment implications. But others have a more nuanced criticism that acknowledges that the companies' content-based bans don't have a First Amendment problem.

Pundit Charles Lane of the Washington Post lays out the alternate case in his January 11 opinion piece. He writes: "Private companies or not, Facebook, Twitter and the rest face exactly the same problems a governmental agency would face in establishing consistent, principled — and universally accepted — criteria for what to allow and what to forbid." Mr. Lane basically says that because we have allowed these companies to become so big and so important, we must apply the free speech standards to them as if they were the government.

Except that Mr. Lane and others want to have their cake and eat it, too. They want the government to exempt corporations and other business entities from civil rights laws, as in the case of the bakery's free exercise of religion in refusing to bake a cake for a gay wedding. They applaud the craft supplies retail chain's free exercise of religion in denying its employees health care coverage that is mandated by the government. And they profit greatly when corporations and other business entities exercise their free speech rights through huge campaign contributions.

But what about the individual's right to speak? Well, first, the free speech right doesn't come with a guarantee of a platform. Just as there are other bakeries, there are other internet platforms for communication or "social media." That said, laws that apply to public accommodations (like bakeries) guarantee individuals in specific protected classes access to those public accommodations. Insurrectionists, seditionists, and inciters of violence are not protected classes, and that criminal speech is not protected speech.

When we endow the corporation with freedom of speech (long before Citizens United), or the free exercise of religion (Hobby Lobby Stores, Inc. or Masterpiece Cakeshop, Ltd.), or the power to confiscate property (Kelo, or look up compulsory pooling) we strengthened the bond between the economic power of commerce and the police power of the state, against the rights of natural persons. When these corporate behemoths become so big as to stifle competition, maybe it's time for some Teddy Roosevelt-style trust busting, IMHO.

January 6, 2021

The images from Capitol Hill on January 6 are seared in my memory, the same way the images of the twin towers of the World Trade Center in flames, and little John-John Kennedy saluting his father's casket, are burned into my brain.

- A wooden gallows, complete with a noose, on the Capitol grounds, apparently prepared to execute Vice President Mike Pence.

- The confederate flag paraded through the Rotunda, where Abraham Lincoln, JFK, and John Lewis, among many other American patriots, lay in state.

- A black Capitol Police officer holding the door open as these thugs, who had ransacked and desecrated the seat of the government of the United States, exited freely, rather than in handcuffs.

- Black, white, Latinx, Asian, and Native American custodians, and a Korean-American Member of Congress Rep. Andy Kim (D-NJ), cleaning up the trash left by white supremacists.

- Security agents with guns drawn at the main door to the chamber of the House of Representatives, where Presidents enter to report on the State of the Union, providing cover so that the people's elected representatives can be evacuated to safety.

And the reports continue to flood in about those who instigated and cheered on the violent coup attempt.

- My very own Member of Congress, Rep. Madison Cawthorn, on that stage at the Ellipse earlier that morning, encouraging the crowd to stand and fight.

- The Attorney General of Alabama, Steve Marshall, head of the Rule of Law Defense Fund, a dark money PAC that stems from the Republican Attorneys' General Association. The RLDF issued a call to action in DC on January 6, including marching to the Capitol, via robocalls.

Sadly, none of this instigation or incitement to engage in a violent insurrection against the government of the United States of America was done in secret. Which causes one to wonder why weren't the nation's defenses ready?

Two Days After

On January 6, 2021, a day that many Christians celebrate as the Feast of the Epiphany, a violent coup attempt happened when an armed mob stormed the Capitol in Washington. There will be lots written and said about that by many people smarter than I. So I will talk about a few other items in the news.

The COVID-19 pandemic is raging, as state governments try to figure out the logistics mess created by Operation Warp Speed. The 4-star Army General who heads the Federal distribution effort has been inexplicably silent since a 60 Minutes interview several weeks ago. Yesterday (January 7), The Atlantic's COVID-19 Tracking Project reported 4,033 Americans died from COVID-19, and so far in the first 7 days of 2021, over 19,000 Americans have died from the disease.

President-elect Joe Biden continues apace with rounding out his top leadership team, yesterday announcing that Merrick Garland will serve as his Attorney General. To a person, every Biden nominee for every post so far has impeccable credentials, and in total demonstrates his commitment to a diversity that reflects American diversity. Yet sniping continues from special interest groups whose darling picks didn't end up in the positions they knew better about. The articles with "Joe should do" or "Joe should have picked" would fill a library.

An assistant football coach at the University of Tennessee at Chattanooga was fired this week because of a tweet he posted that attacked political superstar Stacey Abrams' appearance. Some are defending the coach, saying he was fired unfairly. Well, a couple of things apply. First, discrimination in employment statutes protect people for who they are (skin color, religion, sexual orientation, age), not what they say or do. Besides, the protected class does not include stupidity or misogyny. Secondly, these folks don't understand the right wing corporatist concepts of "right to work" or "employment at will," which are holy writ in many Southern states. Another criticism of the firing questions why Stacey Abrams should be in some kind of hands-off class. Well, I think the coach should be fired if he says that about my wife or my daughter, who are not political celebrities. 

Finally, publisher Simon & Schuster announced they are withdrawing a deal to publish a forthcoming book by Sen. Tom Cotton (R-AR). Senator Cotton blasted the news on twitter, claiming a first amendment right to be published and accusing the publisher of censorship. Many aspiring authors across the nation are now repackaging their rejected manuscripts for resubmission, confident that the Constitution requires the publisher to publish the material. 

Enjoy your weekend!

Cult Behavior - 2020

Throughout the year of the COVID-19 pandemic, many of us have tried to understand the reactions of those who essentially threw caution to the wind, ignoring calls of public health experts and epidemiologists to wear masks and practice social distancing. The viral images (pun intended) of armed, maskless men shouting at police at the Michigan State Capitol are the tip of the iceberg, as we go about grocery shopping and doing other necessary tasks only to see those ignoring mask mandates and one-way aisles and markings on the floor at the checkout line.

In an excellent op-ed piece in the Washington Post, columnist Megan McArdle discusses the dichotomy between those who are seeking normalcy in their own way. She writes: "One group wanted to feel as safe as they had before a virus invaded our shores; the other wanted to feel as unfettered." She discusses the attitude that causes people to ignore the hurricane evacuation warnings, or grab one's carry-on bag when ordered to evacuate the airplane. And her analysis is fine as far as it goes.

But I believe that 2020 shows us a different dynamic at work. We have all observed the mob mentality, or cult-like behavior, of those who support Donald Trump. We are aware of the different communications channels, from talk radio to news networks to now a new social media thing called Parler. And we see how misinformation spread there becomes gospel.

It's not like folks are simply ignoring the fire alarm calls to evacuate the building because of some personal sense of "freedom." It's like there's a different loudspeaker altogether, telling them that the fire is "fake news" and that they should stay at their desks to "save the economy."

All while the building, or our constitutional democratic republic, is burning down.

The Bait and Switch

The NDAA, or National Defense Authorization Act for FY 2021. According to Monica Montgomery of the Center for Arms Control and Nonproliferation, the NDAA authorizes appropriations and establishes policy for the Department of Defense (DOD), nuclear weapons programs at the Department of Energy (DOE), defense intelligence programs, and other defense activities of the federal government (e.g., military construction projects, homeland security programs). On December 11, the US Senate passed the NDAA - National Defense Authorization Act - by a veto-proof margin of 84-13, after the US House of Representatives passed the bill earlier in the week by a vote of 335-78. 

On December 23, before leaving Washington for his Mar-a-Lago retreat in south Florida, President Trump vetoed the bill. In his veto message to Congress, the President cited three specific reasons for not signing the bill into law:

• The bill did not address Section 230 of the Communications Decency Act, which President Trump calls a threat to national security by allowing foreign actors to disseminate disinformation online, especially using social media platforms.
• The bill orders the Department of Defense to rename a number of military installations named after men who served in the Confederate army, including Fort Bragg, Fort Lee, and Fort Hood.
• The bill places limits on the amount of money designated for military construction that could be diverted to other purposes during an emergency.

On December 28, the House voted to override the veto by the vote of 322-87, with a handful of Republicans, including Minority Leader Kevin McCarthy of California, abandoning their previous support of the bill in order to support President Trump. The override vote in the Senate is expected on December 29.

While the President may have genuine concerns over these three cited reasons, they don't seem to justify, individually or taken together, vetoing the bill, especially given the overwhelming bipartisan support for the bill in the Congress. So what's really the President's beef?

Tucked into the NDAA is something called the Corporate Transparency Act. This section (in legislative language called a Title) would require certain business entities, such as LLCs, limited partnerships, and other such organizations to report the names of certain beneficiaries (owners of 25% or more, controlling/managing partners, etc.) to an obscure Federal agency called the Financial Crimes Enforcement Network within the Treasury Department. FinCEN tracks financial transactions in order to trace potential money laundering, and LLCs and other similar business entities are the frequent laundromats for such illegal activity. 

The Trump organization is really not a single company, but dozens upon dozens of LLCs and other such companies, layered one over the other. Michael Cohen's payout of hush money to porn star Stormy Daniels was from an LLC set up specifically for that purpose. So the threat of a Federal law enforcement agency being able to unravel who controls the LLCs is a very real and present danger to Trump and his family.

LBJ once said, "If you can convince the lowest white man he's better than the best colored man, he won't notice you're picking his pocket. Hell, give him somebody to look down on, and he'll empty his pockets for you." Trump (as others before him) is using the shiny objects of white grievance (confederate sympathy and the border wall) as the pickpocket's diversions.

https://armscontrolcenter.org/the-ndaa-process-explained/

https://www.whitehouse.gov/briefings-statements/presidential-veto-message-house-representatives-h-r-6395/

https://www.fincen.gov/

https://www.nytimes.com/2018/08/27/nyregion/stormy-daniels-trump-payment.html

https://www.snopes.com/fact-check/lbj-convince-the-lowest-white-man/

Some broadly popular ideas

The COVID-19 relief package deal released last night includes a provision that would end the practice of "surprise billings" from medical providers. Those surprise bills show up when a patient goes to a hospital or ER which is in network, but some of the individual providers contracted by the hospital (ER physicians, anesthesiologists, etc.) are not in the patient's insurance network. Despite wide public support for ending the practice, many legislators face intense lobbying from physicians and private equity firms that own many practices that profit from the status quo. Finally, it looks like the COVID-19 relief bill is the vehicle that will get this done.

In reading up on this, I ran across an article in New York Magazine that listed 7 public policy ideas that, according to polling have broad support across America. A few of these are particularly progressive ideas, and end up getting shouted down in the right-wing echo chamber. Others are a bit more obscure, but important, and don't get a fair hearing either because of their obscurity or because of the kind of lobbying pressure that blocked ending surprise medical billing. 

Here's the article's list:

• Legalize marijuana use
• Workers' representation on corporate boards
• Cap on credit card interest/fees and on other similar loans (title loans, payday loans, etc.)
• Government officials shouldn’t be allowed to own stocks or become lobbyists right after leaving office
• The government should directly finance the development of new drugs, and then allow the breakthrough pharmaceuticals to be sold cheaply without a patent
• 12 weeks of paid family/medical leave for childbirth or serious illness/injury
• Some sort of Green New Deal

I would add a few more:

• Universal background checks for all firearms sales/transfers
• Comprehensive immigration reform, including path to legal status for many, worker permits, etc.
• Comprehensive income tax simplification, including eliminating distinctions on the types of income

All this is really a sad commentary on how disconnected our legislators - even state legislators - are from reality.

If We Make It Through December

On December 2, Worldometer's database counted 2,833 COVID-19 deaths in the United States, bringing the total number of deaths in the pandemic in the USA to 279,867. Hospitals are scrambling to find bed space, and, more importantly, staff to provide care for skyrocketing numbers of COVID-19 patients. The County Judge of El Paso (the rough equivalent of an elected county mayor) imposed strict restrictions, challenging the state's Governor to a showdown as his county faces a true public health emergency.

In Washington, the picture is bleak. The President issued a 40-minute video in which he rambled again about election fraud which his lawyers apparently can't find evidence of to present to court after court. His convicted and pardoned former National Security Advisor, Michael Flynn, suggested yesterday that the President should impose martial law and hold new elections supervised by the military. Republicans on Capitol Hill refuse to speak out against such calls for a military coup, and continue to refuse to provide disaster relief to millions of Americans suffering under COVID-19 economic stress. 

Flynn's remarks were made to some group in Ohio with words like constitution and freedom in their clever name, and many other similar groups seem to be springing up around the country. We have one locally here in Haywood County which is planning to meet and call for rolling back mask mandates and business restrictions, in the name of liberty.

And news came yesterday that the United Kingdom's health agency had given emergency approval for the COVID-19 vaccine developed in Germany by BioNTech/Pfizer. That prompted a call from White House Chief of Staff Mark Meadows to the head of the FDA, no doubt to put pressure on the American regulator to hurry things along.

Instead of hunkering down in what could be the worst December in modern history, Americans seem to be ignoring the experts, giving a stiff middle finger to local and state officials, and trying to show the rest of the world just how daft we are.