The American Prospect #329

THE TRAVEL ISSUE

IDEAS, POLITICS & POWER

Ryan Cooper in the Faroe Islands Lee Harris in the Texas solar fields Austin Ahlman on the campaign trail

The Alliance for American Manufacturing’s 2022 Made in America Holiday Gift Guide showcases great products at a variety of price points that are being manufactured by American workers and companies. Including items from every state, the District of Columbia and Puerto Rico, the guide has something for everyone on your holiday shopping list.

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12 Democrats Rediscover Populism (and Not a Moment too Soon)

As Republicans took a radical turn, Democrats learned to talk to normal people again. By Austin Ahlman

20 Building Steam in Lithium Valley

Imperial County, one of the most depressed areas in America, has a clean-energy fortune stored deep in an underground reservoir. Can it be extracted, and will downtrodden residents see the benefits? By David Dayen 30

European Disunion

Fragmentation over energy and defense policy weakens the EU and fails to solve urgent problems. By Robert Kuttner

38 Workers on Solar’s Front Lines

Unions are fighting to ensure solar workers are skilled tradesmen, not just exploited temps. By Lee Harris

44 The Best Tax System on Earth What America and the world can learn from the Faroe Islands By Ryan Cooper Prospects

04 Winners From the Midterms? The Supreme Court’s Right Wing. By Paul Starr Notebook 07 Fare or Free? By Gabrielle Gurley 10 Finally, the End of the Car Dealership? By Jarod Facundo

51 Brad Miller on Servants of the Damned: Giant Law Firms, Donald Trump, and the Corruption of Justice 55 Ramenda Cyrus on The state of Black athletics 58 Zephyr Teachout on Data Driven: Truckers, Technology, and the New Workplace Surveillance 61 Randall Kennedy on Waging a Good War: A Military History of the Civil Rights Movement, 1954-1968 64 Parting Shot: Let Twitter Die By Francesca Fiorentini Cover art by Ryan Inzana

Midterm Fallout

We traveled the country during this midterm election, bringing you stories from the biggest races, and the aftermath.

and Alexi the Greek host an in-depth podcast covering politics, power, and progressive policy.

The FTX Disaster

The collapse that is rocking the cryptocurrency world is an oldfashioned financial fraud. The Prospect’s experienced team of fraud reporters explain it all.

Post-Roe

Our writers take you through the aftermath of the overturning of Roe v. Wade, not only the political consequences but the consequences for women.

Executive Action Tracker

With divided government, executive action is more important than ever. Track what the Biden administration is getting done.

Left Anchor Prospect managing editor Ryan Cooper

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CONTRIBUTING EDITORS Austin Ahlman, Marcia Angell, Gabriel Arana, David Bacon, Jamelle Bouie, Jonathan Cohn, Ann Crittenden, Garrett Epps, Jeff Faux, Francesca Fiorentini, Michelle Goldberg, Gershom Gorenberg, E.J. Graff, Bob Herbert, Arlie Hochschild, Christopher Jencks, John B. Judis, Randall Kennedy, Bob Moser, Karen Paget, Sarah Posner, Jedediah Purdy, Robert D. Putnam, Richard Rothstein, Adele M. Stan, Deborah A. Stone, Michael Tomasky, Paul Waldman, Sam Wang, William Julius Wilson, Matthew Yglesias, Julian Zelizer

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PAUL STARR

WINNERS FROM THE MIDTERMS? The Court’sSupreme Right Wing.

The Democrats beat

both the historical odds and the pundits’ expectations in the midterm elections. But when the dust settles, it’s likely that only one national institution—the Supreme Court— will have unobstructed power for the next two years, and the question will be how the six Republicans who control the Court decide to use their power.

Before the election, many Democrats were resigned to the loss of Congress as an unavoidable repeat of a well-established midterm pattern. Some may have agreed with one liberal commentator, Gene Lyons, who wrote in late October that midterm elections “just don’t matter a whole lot in terms of serious changes in the body politic. The U.S. Constitution is pretty much set up to prevent it.”

Any Democrat who shared that confidence about the inconsequentiality of losing Congress might not have even bothered to vote. But, contrary to Lyons, the Constitution does not preclude “serious changes” in a divided government. If Republicans end up with even a slim House majority, the impact is going to be considerable, especially because that majority will hinge on the most extreme members of the Republican caucus. When the party controlling even one chamber is willing to risk the failure of government because it sees in that failure not

just partisan advantage but confirmation of its whole philosophy, it has a formidable club over the opposition party that believes in government and is trying to make it work.

Deadlock between the legislature and executive also leaves the path open for the controlling majority in the third branch of government to pursue its own agenda. This is the big effect of the midterms that hasn’t yet registered widely. Despite the backlash against the Supreme Court’s decision to overturn Roe v. Wade , the Court’s rightwing majority came out of the election as the least-obstructed branch.

The old line that the Supreme Court “follows the election returns” still probably has some truth in it, and there is no question that Democratic candidates benefited from the Court’s abortion decision. But as good as the election was for Democrats, it almost certainly did not dissuade the conservative justices from proceeding on a long and ambitious agenda to undo the legal foundations of liberal government. This is their moment to entrench their legal principles and partisan preferences.

In the Court’s reversal of Roe , Justice Clarence Thomas signaled that the same logic the majority used in that decision could be its basis for overturning Obergefell v. Hodges, which established a constitutional right to same-sex marriage. The two

cases are similar in another respect. In both instances, a Democratic-controlled Congress could respond to the Court by passing legislation to protect the same rights. In its lame-duck session, the current Congress could secure those rights, but once the new Congress takes office in January, it’s unlikely that will still be a possibility.

The threat of congressional repudiation will also probably be off the table in a much wider range of cases where the Supreme Court bases its ruling on its interpretation of statutes. Whenever the Court interprets a law one way, Congress can respond by passing new legislation that makes it unambiguously clear that it intends something else. From 1967 to 2011, according to a study by Matthew Christiansen and William N. Eskridge, Congress overrode Supreme Court statutory decisions 275 times. Earlier this year, the Democratic congressional majority did that again in response to the Court’s 2022 decision in West Virginia v. EPA. After the Court overturned the Environmental Protection Agency’s rules on greenhouse emissions on the grounds that the 1970 Clean Air Act had not specifically given the agency that authority, Democrats used the Inflation Reduction Act to declare that the Clean Air Act did cover greenhouse gases.

Although Democrats won on that crucial specific point, they were not able to address a more fundamental question raised by the Court in West Virginia v. EPA. Under the “Chevron rule”—a basic tenet of administrative law since its adoption by the Court in 1984—judges have accepted “reasonable” administrative interpretations of law when Congress, in the Court’s words, “has not directly addressed the precise questions at issue.” As the legal scholar Cass Sunstein writes, “ The Chevron principle means that in the face of ambiguity, agency interpretations will prevail so long as they are ‘reasonable.’”

In West Virginia v. EPA, however, without directly overruling Chevron , the Court for the first time followed another principle, the “major questions doctrine,” which holds that if an agency is making a “major” policy decision when the law is ambiguous, the Court should strike down that decision and, in effect, tell Congress and the president to pass a new law if they can agree on it.

Except, of course, when Congress and the presidency are divided, they often cannot pass a new law.

The Chevron rule is an expression of judicial humility, a rule that defers to the

specialized knowledge of an administrative agency and recognizes that effective government requires the flexibility to update rules with new knowledge, such as the knowledge about the dangers of greenhouse emissions that was not available in 1970. The vagueness of the major questions doctrine enables the Court to set itself up as a super-executive, overturning agency decisions in the knowledge that Congress and the president will often be too divided to do anything about it.

A case argued before the Court on Election Day, Health and Hospital Corporation of Marion County v. Talevski, illustrates how the likely inability of Democrats to override the Court may result in the loss of long-established rights. Talevski threatens to prevent the nation’s 82 million Medicaid beneficiaries from bringing suits in federal courts to secure their rights under the program. The case arises from a suit on behalf of a nursing home patient whose family accuses an Indiana health system and a private management company of violating Medicaid rules barring negligent treatment (in this case, the use of psychotropic drugs when those drugs don’t serve a legitimate medical purpose). The defendants say that no patient has the right to sue to enforce Medicaid’s rules.

For half a century, courts have upheld the right of Medicaid beneficiaries to sue in federal court under the Civil Rights Act of 1871, which gives people the ability to seek redress when states violate rights that federal law grants. The Indiana nursing home providers say the Medicaid law is not the sort of law that Congress had in mind in 1871. As Sara Rosenbaum, professor of health law and policy at George Washington University, notes, if the Court overturns the right of Medicaid beneficiaries to sue to enforce their rights, it could “implicate the entire constellation of state-administered public welfare programs, including Supplemental Nutrition Assistance Program (SNAP, formerly known as food stamps), child welfare, and federal public housing benefits.”

The federal government lacks the tools to enforce those rights, and nothing would effectively stand in the way of states arbitrarily denying coverage to eligible beneficiaries or failing to enforce federal requirements such as those concerned with the quality of medical care. Although the federal government could hypothetically cut its funding to a state, that would only

further jeopardize beneficiaries’ health and well-being. As Rosenbaum points out, federal officials cannot do what a court can do: “immediately order state officials to stop violating the law.” Federal administrative powers are “not designed to achieve rapid, targeted solutions.”

This is the precisely the kind of situation where a Congress controlled by Democrats could override the Court. They could pass legislation that made the legal rights of beneficiaries unambiguously clear.

But when the Court bases a ruling on the Constitution, Congress does not have the same power that it has when judges interpret statutes. The most dangerous decision the Court may make this term concerns an interpretation of the Constitution that could limit the accountability of state legislatures regarding the rules they make for federal elections, including how they draw congressional district lines. Three years ago, in the 2019 case Rucho v. Common Cause, the Court ruled that the federal courts could do nothing about partisan gerrymandering of congressional districts, but it said that in gerrymandering cases “state statutes and state constitutions can provide standards and guidance for state courts to apply.” Now the Court’s right wing is poised to eliminate that check on partisan power over elections too.

Following the Court’s guidelines in Rucho, the North Carolina State Supreme Court in 2022 struck down the Republican-controlled legislature’s congressional redistricting plan on the grounds that it

created an unfair partisan advantage that violated North Carolina’s state constitution. In a case to be heard by the U.S. Supreme Court in December, North Carolina Republicans argue that the state court’s action should be struck down under the so-called “independent state legislature doctrine,” which holds that under the U.S. Constitution state legislatures have the plenary and exclusive power to set federal election rules and choose presidential electors, unfettered by state constitutions and courts, state election officials, or any other body.

With Justice Amy Coney Barrett on the Court, Republicans may now have a majority in support of the independent state legislature doctrine, though much may still depend on how they craft their decision. A broadly drawn ruling could put legislative decisions about voting requirements and presidential electors as well as redistricting beyond the reach of a governor’s veto or a state’s highest court. As the conservative former federal judge J. Michael Luttig wrote earlier this year, the Court’s ruling could enable Republicans to accomplish legally what Donald Trump was unable to accomplish illegally after the 2020 presidential election—reversing the choice of the voters.

The implications go beyond 2024. If the Court bars state courts from overturning state legislatures’ rules on federal elections (after earlier barring federal courts from overturning partisan gerrymandering), it will have effectively freed state legislatures from any constitutional oversight on redistricting for purposes of partisan entrenchment.

So forget what you learned in civics about checks and balances. The midterm election did work out better for Democrats than the polls predicted, but for the next two years the power over major issues of national consequence will rest with a conservative majority on the Court that is unchecked itself and bent on reducing other checks on arbitrary power. At least with their decision to overturn Roe , the Court’s majority awakened the public to the danger. But, except for a possible reversal of Obergefell , it will be harder to arouse that kind of response to many of the other critical turns to the right the Court may take. This is going to be a major challenge for both journalism and Democratic politics in the coming years. n

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NOTEBOOK

Fare or Free?

By Gabrielle Gurley

One of the problematic by-products of the mass transit social norms that COVID -19 chewed up and spit out is fare evasion. The ensuing enforcement crackdown has reignited a long-simmering debate—if mass transit is a public good, why not let it be free?

The pandemic drove home the unassail-

able importance of transit. Ponder what would have happened if bus and rail networks had melted down like so many supply chains. Aside from service pauses at the height of the pandemic, most transit systems continued to run and move the millions of workers employed at hospitals and clinics, grocery and hardware stores, pharmacies and other vital establishments. Transporting essential humans to their jobs

stood between COVID and social collapse. And to protect drivers, system operators dispensed with fare collection on buses and then restarted it as the pandemic subsided, sometimes at reduced rates.

But the lessons that more than a few people took away from the early pandemic experience is that the system managed fine without their dime. Others ruminated that if libraries and Smithsonian museums are

Fare evasion and stepped-up enforcement reignite the debate on fareless transit. If going fare-free is the answer, then the question is: Who pays?

free to anyone who walks in the door, why not transit?

The hunger for fare-free transit shunts aside some sticky multimillion-dollar realities—namely, if riding without opening your wallet is the answer to ending fare evasion, who, then, foots the bill? Transit systems are already vexed at fare-jumpers, since they drain dollars from their overall fare revenues. The Washington Metropolitan Area Transit Authority, for instance, is on track to forfeit an estimated $40 million this year, more than 20 percent of its $185 million budget gap in fiscal 2024 at a time when the system has only recovered a little more than half of its passengers. New York’s Metropolitan Transportation Authority, the largest system in the country, stands to say goodbye to even more mega-millions of dollars.

Americans often fail to appreciate the enormous government subsidies that go into building and maintaining transportation assets. Drivers do not pay the real costs of monitoring and maintaining the roads they use, and transit riders do not bear the actual costs of taking rail or bus trips. A Washington Policy Center analysis of Seattle’s Sound Transit light-rail operations and capital funding costs came up with a per-trip cost of $14; factor in expansion costs and the price tag rises to $179. (One-way fares on the area’s light rail range from temporarily free to less than $6.)

tem operators responded by cutting back service, leaving riders to cope with changes or suss out alternatives. While the transit authorities cannot do anything about the work-from-home transformation, they cannot afford more bad press from riders taking to social media to carp and share videos of people executing Olympic-worthy vaults over turnstiles, which only adds to the growing cacophony over filthy stations, rowdy riders, and unhoused people they encounter.

branded shopping bags, or will they confront the tall, empty-handed African American man instead? Black people are so frequently cited that Washington, like a number of major cities, finally decriminalized fare evasion, making it a civil infraction subject to a fine. (The Maryland and Virginia suburbs also levy fines, but skipping a fare remains a criminal offense in those states.)

FREE?

Enter fines, badges, and dogs. The WMTA instituted new fines for fare-dodgers in the District of Columbia ($50) and in Maryland and Virginia ($100). The MTA in New York hired private security guards to patrol subway fare-evading hot spots; the Chicago Transit Authority deployed K-9 teams of unarmed guards and dogs to back up its existing unarmed units and Chicago Police Department patrols. Seattle’s Sound Transit opted for diplomacy with “fare ambassadors” to persuade evaders to pay up.

Race and income inequality intersect at fare enforcement. Will transit police target the young white woman squeezing through fare gates swinging multiple luxury-logo

Joshua Schank, a Mineta Transportation Institute research associate, points out that some security experts argue that fares help control access to the system and make policing easier. But he adds that “there are others who would argue that if you don’t have to worry about fares as being the metric by which you’re policing the system, you can actually focus on the other elements of security, such as making sure that there’s a presence of deterrence and making sure that crimes are quickly reported and dealt with.”

The pandemic changed work and commuting habits formed over decades, accelerating working from home in urban and suburban locales, leading to steep ridership declines in the associated transit systems. The sys-

Reduced-fare programs can serve those low-income adults who cannot afford to pay. The MTA’s Fair Fares program, which offers a 50 percent discount on the New York subway and selected buses, requires applicants to provide age, residency, and income verification proofs. Expenditures on the three-year-old city-run program, however, have withered from $106 million in 2019, its inaugural year, to $53 million this year. By contrast, WMATA , which is an expensive, distance-based system, currently has no low-income fare program for metro Washington residents. (The system discontinued a low-income fare pilot during the pandemic; today, seniors and students pay reduced rates.)

The District of Columbia City Council has proposed giving most Washington residents who choose to enroll $100 a month on a WMATA fare card. The passes would allow travel throughout the system and on suburban bus systems that accept WMATA passes. The cards would not be available, however, to Maryland and Virginia suburbanites who use the system.

Ron Thompson, former policy director of the DC Transportation Equity Network, sees the proposal as a model for large urban systems that want to test-drive a transition between the current fare-paying framework and a possible future fareless system. He believes that it also sends racial signals about controlling fare evasion. “It gives the appearance that people are still paying,” he says. “People have to believe that there aren’t any cheats, and, in particular, what they have to believe is that Black people are being made to pay.”

Subsidized fare programs carry administrative costs that can be prohibitive. Income verification administrative cost estimates persuaded the city council member who introduced the $100 WMATA fare card proposal to abandon the option of narrowly tailoring the program to lowincome residents. But enforcement programs also are costly. Chicago’s 18-month K-9 team CTA contract costs nearly $31 million. WMATA paid $70 million for new fare gates, but the furor over fare evasion now has system officials mulling over whether to shop around again for fare gates that are more difficult to vault over or squeeze through. All of which raises the question of how long an agency is willing

to underwrite additional enforcement and deterrence costs that could exceed the lost fare revenues.

That said, eliminating fares requires a massive rethink of transit funding. There are only about 30 fare-free systems nationwide, according to American Public Transportation Association data. And many of those are bus-only systems that are cheaper to run fare-free. For the Kansas City Area Transportation Authority, a free-transit showcase, going fareless translated into healthy ridership numbers, satisfied riders, and significant decreases in altercations. The cost for going free in Kansas City has been $8 to $10 million annually, an expense backstopped by COVID -19 operating funds that transit systems could use for operations. Boston used its COVID funding to make three bus routes fare-free; the price tag there was $8 million. Los Angeles Metro made its buses and rail lines free in early October, but for one day only, to mark a statewide Clean Air Day.

Whether larger systems will go all in on free fares is huge question mark, although Atlanta’s Metropolitan Atlanta Rapid Transit Authority is studying that possibility. “Of the systems that have adopted free fares, none of them so far have been transit systems with rapid rail and a bus system,” says Thompson.

Right now, the missing link for Kansas City, Boston, and other communities that want to preserve existing fare-free programs or implement new ones once the COVID relief funds run out in 2024 is some systemic funding mechanism or, that failing, funding from the feds, states, or localities.

Congress is the quintessential crapshoot for transit funding regardless of who wields the gavel. Republicans are hostile to cities and mass transit; Democrats are poorly positioned for new programmatic asks with COVID waning and inflationary pressures on spending. Amid transit’s ongoing pandemic-era fiscal crises, what

federal lawmakers could do is re-evaluate how existing funding is spent, and shift dollars to direct operating subsidies. “The federal government pays lots of money to public transportation agencies for capital projects, but almost nothing to operate them,” says Brian Kane, executive director of the Massachusetts Bay Transportation Authority Advisory Board.

Despite an anti-tax climate, voters have been surprisingly willing to pass transit funding ballot questions. This year, voters nationwide have passed 29 of nearly 40 transit ballot questions. In past years, transit advocates in Los Angeles and Kansas City have persuaded voters to fork over a few cents on the dollar in targeted sales taxes to fund transit expansion projects. Whether the public would also be willing to pay a tax to finance free transit, perhaps in perpetuity, remains debatable.

Whether the cost of making transit free could be shifted to motorists is another question without a good answer. Suburbanites, who can be and frequently are whiter and wealthier than urban transit riders, are generally perceived as obstacles to such cost-shifting. “This is where it really gets interesting from an equity standpoint,” says Schank, “because a lot of the same people who say that they care about equity, lowincome people, and racial disparities will also be the people who will fight against any kind of road-user charge.”

Fare-free programs are heavy political lifts—particularly so now, as mass transit leaders, like school administrators and teachers, are expected to confront and solve deeply ingrained problems of race, income, safety, and policing in their discrete environments, when those issues should be handled by the society at large. Putting those larger difficulties aside, the immediate challenge before transit leaders is to decide what they can reasonably accomplish on the social justice front through limited fare policy tools—and what they must do to ensure their systems’ viability.

“If you want to provide greater accessibility to jobs and other activities for lowincome people, then free fares are actually a really easy and beneficial way to do that,” says Schank. “If your goal is to increase ridership, yes, free fares will do that, but it may not necessarily be the best method,” he says. “Increasing frequency of service is probably going to be more effective in getting back riders than getting rid of fares.” n

Americans often fail to appreciate the enormous government subsidies that go into building and maintaining transportation assets.

Finally, the End of the Car Dealership?

By Jarod Facundo

It’s become trendy to mock Tesla in recent years. From the disastrous Cybertruck announcement, to viral clips of exploding cars and Teslas under computer control attempting to drive into oncoming traffic, the company and its egomaniac CEO Elon Musk have lost much of the shine they had five years ago. But as classic American automakers sneered at the nascent electric-vehicle startup, Tesla executed a shrewd business strategy that forwent typical marketing cam-

paigns, and cut independent car dealers from the equation by deploying a direct-to-consumer (DTC) purchasing model for its electric vehicles. However, that move has left Tesla facing an onslaught of legal clashes between independent car dealer associations in many states the company sells cars in.

For example, in Texas, Tesla’s new home, vehicles manufactured there cannot be sold directly to consumers in the state. Instead, they are first shipped across state lines, after which you can order the car online and have it shipped back to a Texas address.

Now, about a decade later, Ford has realized that the future is electric vehicles, and ripped a page out of Tesla’s playbook. Earlier this year, at an industry conference, Ford CEO Jim Farley admitted to attendees that Tesla’s “superior profitability” was because its bottom line did not depend on dealers. He detailed that Ford’s current distribution model is $2,000 more expensive per car compared to Tesla’s. “We have all this inventory sitting around in dealers, in transit, we got to get rid of all that.” That’s why, he insisted, “we got to go 100 percent online.” To not just reach price parity with Tesla, but undercut it, he borrowed another strategy from the company: cutting advertising costs. “Five hundred, six hundred dollars a vehicle on public advertising? Get rid of all of it.”

Farley’s remarks garnered confusion from industry onlookers in the following days. To assuage those concerns, Ford representatives clarified that his comments were “simply discussing” DTC models rather than “transitioning 100 percent.” However, actual details of Ford’s plan suggest at the very

Tesla has tried to cut out the middleman, and other automakers are following suit.

least a diminished bargaining power for independent car dealerships, and perhaps, a future where they are retrofitted into service centers for repairs and other boutique perks rather than retailers.

In the clarifying comments, Said Deep, a Ford spokesperson, stated, “Our dealers are a competitive advantage for us as they are closely connected with their customers and communities they serve.” For the future, Deep added, the company’s network of approximately 3,000 dealerships could provide an “outstanding digital experience.”

But what does that look like in practice? Months after the initial announcement, at the annual Ford dealer convention, Farley announced, “When it comes to selling battery electric Ford products that are part of the new Model E division, you’re either on the bus or off the bus and you have just six weeks to decide.” He was referring to Ford’s new two-tiered EV seller certification program: Model E Certified and Model E Certified Elite, and the deadline was the end of October.

The new program requires that dealers integrate outside EV specialists for sellers and customers, build speedy charging infrastructure onsite, include ancillary perks such as car delivery or software upgrades via subscription models, and most strikingly, what Ford calls “transparent, non-negotiable pricing.” Although dealerships will be able to set prices, Ford says they will be monitoring car prices to ensure customers are paying exactly what dealerships promised, in addition to monitoring consistent pricing across different customers.

The Model E Certified dealer, designed for smaller enterprises, requires an upfront $500,000, most of which goes toward installing a fast charger for public use, a conservative cost estimate according to Ford. The number of EV orders available to dealers in this tier is restricted to 25 fully electric vehicles, on top of not having demo vehicles available onsite, a move that pushes dealers to opt into the next tier. For Model E Certified Elite dealers, they are subject to an initial $900,000 investment and have no restrictions on the number of EV sales, in addition to requirements for two fast chargers. The next wave of authorizations for selling Ford EVs is not expected until 2027, meaning dealers cannot reapply until 2025. The company also estimates that investments from Elite dealers will likely total

closer to $1.2 million because they want dealers to add additional chargers in the coming years.

Ford’s massive request from dealers has stalled the company’s ambitious plans. Days before the Halloween deadline, the company extended it until December 2. Its luxury division of Lincoln Motors is also deploying a similar DTC strategy for dealers, with a December 15 deadline to opt in to Lincoln’s EV program. The Lincoln Motors program requires a $900,000 investment toward infrastructure upgrades, and many Ford dealers also sell Lincoln vehicles—which might mean $2 million in investment to build separate chargers for each brand.

While Ford is restricting the number of EV sales for its lower tier, Lincoln Motors has a single program with no sale restrictions. In a similar move to crack down on dealership price-gouging, in a letter to dealers, the company said: “Dealers may not advertise a lease, retail sales price, discount, or financing offer that is derived from a retail sales price that is above MSRP.” Referring to “client satisfaction” and “favorability,” the letter states, “selling above MSRP negatively impacts the Lincoln Brand.”

In a phone interview with Ross Woodhams, general manager of Woodhams Ford Lincoln in southwest Michigan, I asked if the separate investment requirements from Ford and Lincoln would be difficult for dealers like himself. “I’m not talking about my business with you. I think you’re asking questions you already know the answers to,” he said, and hung up.

The shifting relationship between dealers and automakers is a departure from the outsized influence dealers have typically held. For example, during 2009 negotiations for Dodd-Frank, the House Financial Services Committee passed an amendment exempting auto dealers from the Consumer Financial Protection Bureau’s purview, led by—you guessed it—a former auto dealer, Rep. John Campbell (R-CA).

Democrats aren’t immune from dealer influence. Just this year, Rep. Dan Kildee (D-MI), a member of the powerful tax-writing House Ways and Means Committee, tried passing a tax break for auto dealers. He garnered support from lawmakers on both sides of the aisle, including auto dealer Rep. Donald Beyer (D-VA) and Rep. Carol Miller (R-WV), whose husband runs several dealerships in West Virginia and North Carolina.

Back in 2015, the House overwhelmingly passed the Reforming CFPB Indirect Auto Financing Guidance Act, industry-friendly regulation that functionally prevents CFPB from curbing racially discriminatory auto lending practices.

In other words, Congress essentially protected the auto industry’s right to give nonwhite consumers garbage loans, akin to the subprime mortgages that sparked the financial crisis.

Outside of the national political sphere, auto dealers are kingpins in local communities, and exert their clout through powerful trade associations. Will Green, the president of the Louisiana Automobile Dealers Association, said in reference to an antitrust lawsuit filed by Tesla against the state: “Out of state technology companies don’t care about Louisiana’s communities— local dealerships that have operated here for generations do.”

Franchise laws vary by state, but most overwhelmingly favor independent auto dealers. The exceptions are California, New York, and Massachusetts, where Tesla’s anti-monopoly arguments have won in legal battles.

If dealers die out, consumers might benefit in the short term, thanks to the Inflation Reduction Act’s EV tax credit of up to $7,500 for new buyers and the warnings from automakers against dealers’ price chicanery. GM, Ford, Chrysler, and the other big automakers were behind the curve initially on EVs, but they all now have at least some models, and are trying to catch up by cutting costs.

But they might not over the longer term, as auto companies become vertically integrated and cars depend on proprietary software. “We’re going to see very large consolidation and big changes,” Farley said earlier this year. “It’s not motors and gearboxes, it’s gateway modules and software that controls the vehicle.” Cars could become like John Deere tractors, where there is no option aside from the company itself to obtain repairs and service, naturally at a steep markup.

In 2013, Bill Wolters of the Texas Automobile Dealers Association pushed Tesla out of the state. But he warned that if Tesla continued, other American automakers might follow suit. Almost ten years later, it seems that the automobile industry’s response to electrification made Wolters’s fears become reality. n

Democrats Rediscover Populism (and Not a Moment too Soon)

As Republicans took a radical turn, Democrats learned to talk to normal people again.

At about 9:30 p.m. Eastern time on Tuesday, November 8th, practically every political writer in America began collectively shredding their prewritten election analysis. With few exceptions, national political journalists, including this article’s author, had already sorted out their takes on why Democrats had fallen short.

They were too beholden to the progressive left, perhaps, to recognize how worried voters were about crime. Or too wrapped up

with high-minded talk about saving democracy to connect with voters struggling to make ends meet. Maybe Democrats were victims of circumstance, destined to be caught holding the bag as the COVID -19 crisis snowballed into a global economic slump. Conversely, might the problem really have been that they had failed to seize their window of opportunity to make the transformative change this political moment required? (As you might imagine, I fell into the latter camp.)

BY AUSTIN AHLMAN

Sen.-elect John Fetterman (D-PA)

But as results from key races started to flow in, something strange began to happen: Democratic candidates started winning. Over the course of the next few hours and days, those wins kept coming. And while, at the time of this writing, it appears Democrats will lose the lower chamber of Congress by a slim margin, there is little doubt that Democrats defied history this cycle with their performance.

Democrats gained governing trifectas in Minnesota, Michigan, Maryland, and Massachusetts by flipping a number of state legislative chambers, and electing or reelecting Democratic governors. That success extended to Pennsylvania and Arizona, where Josh Shapiro and Katie Hobbs bested rising MAGA stars Doug Mastriano and Kari Lake—though Democrats’ one notable exception was moderate Nevada governor Steve Sisolak’s loss to right-wing populist Joe Lombardo. Democrats even gained one Senate seat, which will hold if Sen. Raphael Warnock defeats Herschel Walker in a December 6 runoff in Georgia. And perhaps most crucial in the battle to protect democratic institutions, the party swept virtually every critical contest for secretary of state.

In the aftermath, commentators who were once certain that they understood why Democrats would lose have struggled for coherent explanations of why they won.

The three leading theories, often presented as if in competition with one another rather than in harmony, are that abortion rights galvanized voters after the destruction of Roe v. Wade; that the increasingly explicit authoritarian streak within the Republican Party alienated small-d democrats; and that voters were persuaded to give Democrats a chance to ease the challenges posed by inflation when presented with a choice between progressive economic reforms or conservative austerity.

There’s some truth to all of these. In states like Michigan, where abortion rights were literally on the ballot, Democratic candidates rode unprecedented turnout waves to success, even as states with enshrined abortion protections, like New York and Oregon, suffered dips in turnout and aboveaverage rates of defection in federal races among base Democratic voters. And election deniers who ran for key administrative races across the country lost in droves, even as Republican incumbents in Congress who parroted those same conspiracies appear to have gone mostly unpunished.

But if there is one unifying explanation for why Democrats defied expectations and precedent—and perhaps there is not—it appears to be that the dire implications of losing the election cycle forced Democrats to do something they generally abhor: name enemies, and describe how they intend to beat them. Self-described moderate and centrist Democrats discovered a newfound willingness to attack the pharmaceutical industry, vote to threaten oil companies over their profit margins, and otherwise hold special interests to account. Clear enemies to women’s rights sitting on the Supreme Court, and enemies to democracy running for office, gave a sharper edge to Democratic messaging, and a real choice to voters.

The newly resounding clarity of Democrats’ party-line messaging on economics—a phenomenon enabled by the Biden administration’s clear rejection of the constrained economic orthodoxies that guided the last two Democratic administrations— combined with Democrats’ attempt to build a popular front against Republicans’ growing authoritarianism could form the basis for a new populist Democratic movement. But it remains to be seen whether the party has the will to see that through.

While Democrats largely succeeded in heading off a red wave, they fell short in areas where candidates failed to tell a cohesive and compelling story about the

relationship between assaults on economic freedom and assaults on democracy and reproductive rights, especially with voters who were not facing immediate, tangible risks to their bodily autonomy or local democratic institutions. Those losses appear to have proved sufficient for the party to lose the House—stalling out any potential that Democrats will act on their bold rhetoric, and potentially souring their relationship with the voters persuaded by their message.

But the encouraging number of candidates who managed to find success against daunting odds offers proof that the populist spark Democrats discovered this year may be their best shot in the future to build a broad enough coalition to pass significant pieces of the social and economic agenda Biden abandoned, and thwart ongoing

Sen. Raphael Warnock (D-GA)

The dire implications of this election cycle forced Democrats to do something they generally abhor: name enemies.

attempts by Trumpists to bring a right-wing populist movement that openly flirts with authoritarianism into power.

The Rise of Populist Economics Democrats’ strong showing in practically every competitive Senate race was the clearest testament to the party’s ability to run up the score on economic issues—especially in

states thought to be drifting away from the party’s grasp. John Fetterman’s decisive win over celebrity surgeon Mehmet Oz, the perfect foil for a populist, has pushed national outlets that have often been dismissive of the appeal of progressive economics to reassess. The New York Times has run a series of glowing articles on Fetterman’s run, with national correspondent Trip Gabriel

lauding his ability to overperform Biden in every type of county—rural, suburban, and urban—and questioning whether candidates like him are now the “blueprint” for statewide recruits going forward.

Georgia Sen. Raphael Warnock, who has long telegraphed the belief that populist economics are key to his tough re-election prospects, ran a large distance ahead of gubernatorial candidate Stacey Abrams, at least in part, his team believes, because of his role in pushing Biden to cancel student debt via executive action. Without that move, one consultant who works for the campaign said, Warnock might not have finished ahead of former football star Herschel Walker in the first round of the general election, or even forced a runoff at all.

Out west, Democratic incumbents also embraced distinctly populist messaging. Nevada Sen. Catherine Cortez Masto’s most famous ad of the cycle decries her opponent Adam Laxalt for being the “son of a lobbyist,” who “cash[ed] in on his connections to become attorney general,” before using that office “to shield his wealthy donors.” In neighboring Arizona, Mark Kelly ran ads dedicated entirely to his work fighting corporate greed and price-gouging in his race against Peter Thiel–backed venture capitalist Blake Masters. Kelly’s win also provides a critical boost to local Democrats who are hoping to convince primary voters to oust senior Sen. Kyrsten Sinema in the 2024 primary. Kelly appears to be on track to double Sinema’s 2018 margin of victory, without causing any turbulence for Biden’s domestic agenda.

Even Colorado incumbent Michael Bennet, who Democrats feared would struggle against moderate businessman Joe O’Dea, leaned into populist economics to differentiate himself from an opponent that he struggled to paint as radical. In doing so, he provided a boost to the political outlook of the enhanced Child Tax Credit, a pet policy he brought up repeatedly on the campaign trail.

In the House, where candidates’ adherence to the party’s rhetorical shift was less uniform, Democrats appear set to relinquish power, based on the faulty performance of a handful of messengers who did not try or failed to authentically convey the party’s populist turn.

Most candidates stuck to a relatively simple formula of criticizing corporate profiteering. Those ads have largely featured one key vote in particular—a bill introduced by Reps. Katie Porter (D-CA) and Kim Schrier (D-WA) that sought to curtail oil companies

Sen. Mark Kelly (D-AZ)

Sen. Michael Bennet (D-CO)

from price-gouging consumers. The House passed that bill in May, with all Republicans opposed; it was introduced but never seriously considered in the Senate, but featured in ads throughout the country. Schrier and Porter, both in tough races with redder seats from redistricting, won re-election.

“I think one of the things Democrats should do is just straight-out talk a lot about economic issues,” Porter told the Prospect in between canvassing launches in her district in Irvine, California. “The majority of this inflation, about 54 percent, is being driven by corporate profits.”

House Democrats’ ads this cycle were also quick to tout provisions of the Inflation Reduction Act that will allow Medicare to negotiate a handful of prescription drugs—with candidates’ own public statements often calling to go further.

In a press call in early October, Congressional Progressive Caucus Chair Pramila Jayapal relished the turn Democrats’ messaging had taken in the months leading up to the election. “The mainstream Democratic agenda has moved so much in terms of what we’re fighting for as a party, and that is really due to decades of organizing,” she told the Prospect in response to a question about her appraisal of Democrats’ overarching midterms message. She mentioned corporate price-gouging, antitrust reforms, and bans on insider trading as “key priorities of the Progressive Caucus.” Candidates, she suggested, would be wise to find specific examples in those veins that resonate with their constituencies, and really hammer those home.

House Majority PAC, the largest Democratic outside spender for House races, has also been especially forward in claiming credit for Democrats’ messaging campaigns via ads that generally balanced populist economics with the myriad social issues that have motivated voters. PAC spokesperson C.J. Warnke recently indicated that across all spots the committee put out this year, economic issues featured in 48 percent of them, abortion in 42 percent, law enforcement in 22 percent, and extremism and the January 6th attack on the Capitol in 19 percent.

The Limits of Fighting Extremism

Other candidate ads, however, employed a noticeably different formula, to varying levels of success. Democrats in some deep-blue districts, for instance, overemphasized accusations of extremism against their oppo -

nents, often to their own detriment when employed against an opponent where there was little substance underlying the charge.

In Rhode Island’s Second Congressional District, voters nearly elected a Republican to the House for the first time since 1995, largely due to Democrats foregrounding anti-extremism rhetoric that was detached from an underlying threat that feels genuine. When I visited the district before the election, voters seemed largely disengaged from the race for the House, which many assumed to be a foregone conclusion. And voters seemed almost entirely unenthused about the Democratic nominee, Seth Magaziner.

While Magaziner embraced some of the populist messaging on price-gouging and banning stock trading that served other candidates well during his primary, in the general election’s closing days, television ads on prime news channels consisted disproportionately of negative ads against Allan Fung, a distinctly moderate Republican who is familiar to Rhode Islanders after a series of runs for higher office.

Voters’ apathy played to the advantage of Fung, the popular Republican former mayor of Cranston—the largest suburb of Providence and the second-largest city in the state. In his race for the Second Congressional District, Fung relied on the decade he had already spent distancing himself from national Republicans to woo Democratic

voters who felt the national party’s message was not for them. In a Walmart parking lot in west Cranston, I took the pulse on that argument for myself.

Most shoppers batted away my questions, with many telling me they had no intention of voting in this year’s election. One shopper who gave me the time of day, a bartender named Monica, said she was voting for Fung because “he actually says positive stuff when I see him on TV,” referencing an ad campaign that emphasized working across the aisle on issues like clean-energy investment, while simultaneously tapping more oil domestically.

When I asked whether she was worried Fung would help Republicans ban abortion or threaten the 2024 election, she laughed. “Look,” she said, still amused by the suggestion, “the only guy we’ve got refusing to give up power here is Dan McKee,” an

Rep.-elect Seth Magaziner (D-RI)

The six sitting House Democrats who lost generalelection bids are all consummate moderates.

apparent reference to the scandal-plagued Democratic governor who narrowly won renomination due to a split field of challengers. “Allan Fung is Rhode Island.”

While Magaziner ended up beating Fung by less than four points in a district that Biden won by nearly 14, a number of Democratic newcomers in less forgiving seats, particularly in New York, came up short using a similar strategy. Extremism certainly exhibited a powerful pull on independent voters in states like Pennsylvania and Arizona, where election deniers were at the top of the ticket. But elsewhere, where that threat wasn’t as visceral, Democrats faltered.

Perhaps the best case for the centrality of populist economic messaging to Democrats’ success this midterm can be seen through the Democratic incumbents who didn’t succeed. The six sitting House Democrats who lost general-election bids—Cindy Axne, Tom O’Halleran, Al Lawson, Elaine Luria, Tom Malinowski, and Sean Patrick Maloney—are all consummate moderates and members of the centrist New Democrat Coalition. And five of the six ran behind President Biden’s 2020 performance with the voters in their districts; O’Halleran ran about even.

Lawson and O’Halleran, who hail from Florida and Arizona, respectively, were redistricted into seats, standing little chance of re-election regardless of political climate. However, their underperformances

do stand out in a year that was inordinately kind to incumbents from both parties.

Iowa’s Cindy Axne, the last Democrat holding federal office from the state, went from slightly overperforming Biden’s 2020 performance in a closely contested congressional seat to slightly underperforming him this year, after a series of stories demonstrating out-of-touch and unethical behaviors—including a failure to properly disclose tens if not hundreds of thousands of dollars in stock trades, and an ill-advised decision to vote via proxy for the Inflation Reduction Act while on vacation in France. Her opponent, Iowa state Sen. Zach Nunn, was a Trump endorsee who wielded both of those apparent violations of public trust like a cudgel in debates and public statements.

While enough ink has been spilled over the series of mishaps that led to DCCC Chair Sean Patrick Maloney’s stunning loss in a New York congressional seat Biden won by over ten points, the other two severe underperformers—New Jersey’s Tom Malinowski and Virginia’s Elaine Luria—also demonstrate the limits of running on social issues with an economic record that does not pass the sniff test.

Malinowski’s loss to former New Jersey state Senate Minority Leader Thomas Kean Jr. followed an investigation by the Office of Congressional Ethics that found he had failed to disclose hundreds of stock trades made over the course of two years. Despite

Malinowski’s desperate attempts to shift focus to Kean’s avid support for Donald Trump and exhaustive anti-choice legislative record, voters remained unmoved. Kean, smelling blood in the water, largely avoided public events and media appearances during the campaign, instead relying on a steady stream of stock trade–focused attack ads to carry him to a four-point victory in a seat that Biden had himself won by four points the previous cycle.

Perhaps no one better demonstrates the failures of a strategy heavy on social issues and light on economics better than outgoing Virginia Rep. Elaine Luria, who staked her reelection bid in a seat Biden won by two points on her work for the January 6th Committee. The role provided a stark contrast with her opponent, state Sen. Jennifer Kiggans, an election-denier who has called for an audit of the state’s 2020 contest. Ultimately, there is little evidence Luria’s bid, which she lost by under four points, was helped or harmed by her high-profile work on the committee.

Instead, it appears she paid the price for jaw-dropping comments about a nowdefunct effort to ban stock trades by members of Congress. As momentum began building for reform, Luria, who famously flip-flopped on her campaign’s acceptance of corporate PAC money shortly after taking office, told reporters that she believed “this whole concept is bullshit,” and questioned the intentions of those seeking the reform. The comment quickly ended up in Kiggans’s ads, and provides perhaps the only compelling rationale for why Luria underperformed every other losing incumbent besides Maloney.

A Tale of Two Poll Workers

The failure of several corporate-friendly centrists to live up to their supposed electability stands in stark contrast to the cycle’s more unlikely survivors. Only three Democratic incumbents held seats where Trump claimed victory in 2020: Marcy Kaptur, Jared Golden, and Matt Cartwright. All three have embraced—or at least flirted with—populist messaging and issue positioning. (For example, each has harshly criticized free-trade agreements negotiated by Democratic presidents and, at one time or another, signaled support for a Medicare for All single-payer health insurance system.)

Kaptur, the longest-serving woman in House history, won her northern Ohio seat by an astounding 13 points. While she benefited from an opponent who fraudulently

Rep. Elaine Luria (D-VA)

claimed to have served in Afghanistan, it is clear Ohio Republicans underestimated her potential strength when they gerrymandered her previously safe district into a swing seat this year. Golden, while also a member of the Blue Dog Coalition, has demonstrated populist instincts throughout his political career in Maine—the most recent being a vote against the House version of Biden’s Build Back Better Act that he justified from the left, based on tax breaks it provided predominantly wealthy property owners.

Perhaps most interesting, though, is Progressive Caucus member Matt Cartwright, who represents Biden’s hometown of Scranton in northeastern Pennsylvania.

Because of court-ordered redistricting in 2018 and regularly scheduled redistricting in 2020, Cartwright’s victory this year means he has managed to hold three substantially different configurations of his dark-red Scranton-based district in the last eight years.

You can see Cartwright’s economist populist approach, and why it has such broad appeal, in an ad featuring a Trump and a Biden voter. Both praise Cartwright for “working to bring jobs back from China” (highlighting a new gas plant in Luzerne County), capping drug prices, and protecting Social Security. Cartwright beat his opponent, a former Trump appointee and consulting firm owner Jim Bognet, by two points in a seat Biden lost by three.

On Election Day, I went to Scranton to see if I could learn more about the key to his success. In the parking lot of McNichols Plaza Elementary School, as polls began to open, I spotted a bright, puffy red jacket standing in front of a picnic table near the front entrance. As I got closer, I saw that the jacket had a face, as well as a set of large buttons for three Republican candidates: Doug Mastriano for governor, Jim Bognet for U.S. representative, and Aaron Sepkowski for state representative. (A “Mehmet Oz for Senate” button was notably absent.)

The jacket’s face introduced herself (she asked me not to use her real name for this article, so we’ll call her Lee), and offered to give me some literature on the Republican candidates on the ballot. After I politely introduced myself as a journalist, she smiled warmly and said, “Oh … I can’t talk to you, hon, sorry.”

In spite of this caution, Lee was too gregarious to shut me out, and we did strike up a conversation. I identified myself as a fellow Midwesterner—before being promptly informed that Pennsylvania is not a part of

the Midwest. She laughed off the error, telling me that she did not take it personally, since she was from Massachusetts. Lee’s mother was the first female UPS driver in the state.

I told her that, in my experience, it can be harder to get Republicans to agree to interviews than Democrats—a phenomenon I had already experienced that morning. She smiled and explained that the Republicans she knew simply did not trust the media. If I wanted more of those interviews, she said, I needed to make a case for genuinely caring about their perspective, and needed to make promises not to take things out of context.

Whether those tips worked, or because Republicans felt comfortable talking with someone sitting at Lee’s table, I did manage to get more Republican interviews over the next hour than normal.

One elderly couple named Carl and Judy explained to me that the couple came out to vote primarily because of abortion. “I’m hoping to save babies,” Carl explained. While there were areas Carl agreed with Democrats, even on the abortion issue, he said that, as a Christian, he still could not vote for them because of their dishonesty. “They make a lot of promises,” he said. “They say they’re transitioning us off oil … well why are we running out of diesel?” he asked, referring to a national shortage whose effects had recently begun to be felt in the area.

A short while later, another poll worker named Kevin Walsh showed up to convince

-

had come to boost. Any potential tension melted away quickly, as the two realized they were familiar with each other’s residences and had multiple mutual acquaintances.

After a bit of casual chatter, it came out that Walsh himself had voted for Trump in both 2016 and 2020, but was a fixture in local Democratic campaigns. “On the national level, I vote Republican,” he explained, saying that his views on abortion were the primary reason he did not feel he could vote for national Democrats. “But on a local level, I go by the person.” This election, he said he was voting for Democratic gubernatorial nominee Josh Shapiro because of his work holding corporations accountable as attorney general, and he said he was leaning toward voting for Oz, but seemed unsure. Fetterman, he said, was just a bit too “wacky” for him, despite his reservations about Oz.

When I asked him about his views on the race that fascinated me most, Matt Cartwright’s apparent last stand, he took a quick look around to make sure the other poll workers had walked off and said, “If I’m voting for anybody, I’m going to vote for Cartwright.”

“The thing is, Matt Cartwright has just done so many good things for the people I’m around,” he explained in a hushed tone. He said he learned to treat some candidates as

people to vote for Democratic state repre

sentative nominee Kyle Donahue, who was squaring off against the candidate Lee

Rep. Marcy Kaptur (D-OH)

exceptions based on his experience growing up. “In our house, you voted Democrat, other than Joe McDade,” he said, referring to the Republican congressman who held the seat encompassing Scranton from 1963 to 1999. He recounted that his family always voted for McDade, because, like Cartwright, they knew he was going to vote for things that helped his community over things that helped his party—pointing at trade deals in particular to explain his confidence.

He gave the example of a local munitions factory that McDade saved from closing after the Vietnam War—a munitions plant that is still open today and, according to Walsh, is a regular destination to spot Cartwright when he is in the district. As Walsh tells it, McDade flexed his seniority on the House Appropriations Committee to keep the plant open, forcing a separate plant

nearby to close instead when informed the funds were not there for two plants in such close vicinity.

Catching the subject of our conversation, Lee, the ebullient red-jacketed Republican poll worker who spoke with a reporter for a liberal Washington magazine against her better judgment, rushed over to join the conversation.

“They closed the one in Massachusetts,” she interjected in an audibly pained voice, explaining why she had ended up in Scranton. “That’s why we’re here, my husband worked for Chamberlain for 40 years.”

Walsh sounded almost apologetic for bringing up the conversation. “Yeah, I guess someone else’s plant has to be taken away—”

“No, it wasn’t taken away,” Lee interrupted. “Kennedy let it go … Ted Kennedy let it go.”

“I was an independent when we left Massachusetts,” she said, recounting the anger she felt at Kennedy over the forced move. “But the Republican fought for the jobs.”

Authentic Populists Defy Gravity

If Democrats hope to stop the bleeding with voters like Lee, Cartwright’s approach is a model. Fortunately, it appears a new generation of standard-bearers are ready to recreate that winning formula.

In the opposite corner of Pennsylvania, outgoing centrist Conor Lamb saw his seat defended easily by anti-corporate crusader Chris Deluzio, a former DNC delegate for Ver-

mont Sen. Bernie Sanders who lambasted his opponent, self-funding business executive

Jeremy Shaffer, as a “corporate jagoff” who created jobs in China for a living. When I visited the district to sample Deluzio’s populism for myself, it was clear he was happy to talk about abortion rights, but the issue that animated him, and it seems his constituents, was the decline of union jobs and local industry. “One of the things I’ve been talking about throughout this campaign,” he told me, “is that we have to take on the power the biggest corporations wield over our lives.”

“This is union country around here,” he continued. “When I talk about bringing our supply chains back home, making stuff here, and growing union jobs—that’s where people are.”

In Alaska, Mary Peltola’s branding of herself as the most “pro-choice and pro-fish” candidate on the ballot—a nod to her advocacy to rein in fisheries that are rapidly depleting Alaska’s salmon population—has allowed her to build a reputation as someone who takes on identifiable culprits who are abusing corporate power at the expense of Alaskans.

The only Democrat to hold onto a toss-up race in New York, Rep. Pat Ryan, focused his special-election victory in August on his efforts to pressure a local utility monopoly over raising prices. “I approve this message because big corporations have too much power. It’s time our families had more,” Ryan said in the spot.

Perhaps the biggest surprise winner of the cycle, Washington’s Marie Gluesenkamp Perez, cut a long video with anti-corporate news organization More Perfect Union that went to great lengths to highlight her background as a working-class auto shop owner who would fight to bring jobs back to southwest Washington. In the single ad posted on her campaign’s YouTube page, she made her populist pitch even more directly: “We don’t need another corporate shill or extremist in Congress. I will fight for working-class Washingtonians just like me.”

Whether those candidates can live up to those promises while confined to the House minority in a gridlocked Congress remains to be seen. The push to rein in corporate power and deliver will fall to Biden and the nominees he is able to shepherd through the Senate. But building both a long-term strategy for success and a bench with the trust to carry it out is critical. Democrats found a formula to counteract right-wing populism—if the leadership pays attention to the lessons. n

Rep. Matt Cartwright (D-PA)

Democrats found a formula to counteract right-wing populism—if the leadership pays attention to the lessons.

Building Steam in Lithium Valley

By David Dayen

brawley, california – A giant cloud had formed a wall, enveloping the horizon in darkness. They call it a haboob, a collapsed thunderstorm that stirs up silt and clay after plummeting to Earth. The dust tornado sat between me and my hotel, and once I started down the country road, which ran along a cow feedlot that stretched for (I counted) three miles, visibility dropped to maybe a couple of feet.

Not even 30 minutes earlier, it had been a normal afternoon in southeastern California’s Sonoran Desert, under a blazing sun and cloudless sky. But first the rain came down in buckets, and then the haboob. I’d have thought at least the former would be welcomed, after seeing billboards throughout the area urging water conservation due to “La sequía”—the drought. But the ground is so dry that it can’t absorb condensation, which bounces off and slides wherever the land slopes downward.

Within minutes, my phone beeped: first for a flash flood warning, then a dust storm warning that said “Pull Aside, Stay Alive … Infants, the elderly and those with respiratory issues urged to take precautions.”

I didn’t pull aside, but my pace was slow as I hugged the edge of what I hoped was still the road. When I finally reached the hotel, there was a thin film of dust over everything. The clerk gave me the key, and a disclaimer: “There may be some dirt in the room. I can’t control the weather, even though everyone thinks I can.”

Embedded within that dust is more than a century of policy mismanagement, environmental disaster, and regional despair. The recent fortunes of Imperial County, along the U.S.-Mexico border, have risen and fallen with water levels at the Salton Sea, California’s largest inland lake. In the 1950s and ’60s, it was a travel destination,

Imperial County, one of the most depressed areas in America, has a clean-energy fortune stored deep in an underground reservoir. Can it be extracted, and will downtrodden residents see the benefits?

A haboob—a collapsed thunderstorm—kicks up dust near Brawley, California.

where mid-century luminaries like Frank Sinatra would lounge and play. But flooding drove away the tourists, toxicity killed off most undersea wildlife, and years of drought conditions and reduced water allocations exposed roughly 30,000 acres of playa.

Dust from that dry lake bed, polluted with agricultural chemicals, blows into nearby towns. Pediatric asthma hospitalizations in the region are as much as twice the state average, a crisis for the disproportionately poor residents. Despite restoration plans, almost nobody believes there’s a simple solution. “It will get worse before it becomes better,” Frank Ruiz, Salton Sea Program Director for the National Audubon Society, told me.

Local officials have tried in vain to revive Imperial County for decades. The latest salvation can be found deep beneath the Salton Sea. An underground reservoir contains one of the world’s largest deposits of lithium, a primary component in electric-vehicle and energy storage batteries that are critical to the green transition. While extracting this mineral is typically a dirty business, companies in the Salton Sea are pioneering a cleaner process, bolted onto geothermal operations that have thrived here for 40 years. In January, California Gov. Gavin Newsom called Imperial County “the Saudi Arabia of lithium.”

On paper, it’s the perfect concept: renewable energy unlocking the key to more renewable energy, bringing jobs and prosperity to a region that has been knocked down for too long. But that’s only on paper. Companies have yet to perfect direct lithium extraction outside the lab; community members are skeptical that they’ll see real benefits; and a balance between maximizing economic opportunity and protecting the environment and public health must be struck.

Areas blessed with precious metals or fossil fuels often succumb to the resource curse, with poor outcomes for development and growth. That’s a good description of Imperial County’s past, in fact. “This area has been exploited for the needs of the urban coast,” said Ryan Kelley, a member of Imperial County’s Board of Supervisors who has been instrumental in designing the plan for what is being called the Lithium Valley. “We provide all those things that you’d find in the produce section, we provide the water that comes out of taps indirectly. And we’re providing the power

that’s keeping their lights on and their air conditioners running.”

Kelley and his colleagues are staking their careers, and the region’s future, on this time being different.

There have always been Salton Seas, even when only Native communities lived in the area and they called it Lake Cahuilla. The water ebbed and flowed into the natural sink, depending on fluctuations in the Colorado River. “Water was part of their origin stories,” said Traci Brynne Voyles, author of The Settler Sea: California’s Salton Sea and the Consequences of Colonialism. “What the Salton Sea is covering right now is Cahuilla village sites on the desert floor.”

In 1905, the region’s would-be saviors planned an agricultural bounty, building a canal from the Colorado River to irrigate crops, with runoff funneled to the lake bed. But a heavy rainy season sent water over the canal. It flooded for two years before being fixed, forming the modern-day, 400-squaremile Salton Sea. The lake, cut off from the Colorado, its traditional direct water source, sustained itself year after year with farm drainage.

At first, the farm economy complemented a tourist economy, about an hour from the existing Hollywood getaway of Palm Springs. The Beach and Yacht Club sprung up in North Shore; Salton City, to the south, built a resort village. Fish and wildlife thrived in the desert oasis. The Marx Brothers and the Beach Boys were mainstays. They didn’t quite realize where they were frolicking, Voyles explained: “The water these celebrities are bathing and fishing in is an agricultural sump.”

Rising waters in the early 1970s flooded attractions and businesses, adding another ruined civilization to the lakeside destruction. But something stranger was happening. The irrigation water replenishing the sea carried fertilizers and pesticides; evaporation left behind arsenic and selenium and other poisons. The natural inflows from hundreds of past Salton Seas also contained salts; today, the sea is about twice as salty as the ocean.

When I visited the North Shore Beach and Yacht Club, which has been turned into a museum, a few years ago, the shoreline was littered with solid, desiccated spheres. I learned that they were dead fish. Agricultural runoff often leads to algal blooms, which suck oxygen out of the water. In the

late 1990s, nearly eight million fish died in a single day. Fishing and recreation at the area essentially ended. The resorts were abandoned. High hydrogen sulfide levels created a lingering rotten-egg smell.

The mega-drought, which Ruiz describes as “a new normal,” was the culmination of these overlapping crises. In 2003, the Imperial Irrigation District, the local water authority, agreed to send much of its water allotment earmarked for agriculture to the growing San Diego metro area. In exchange, the Salton Sea would continue to get water for 15 years before dropping precipitously. Officials promised a solution before then. But recession aborted early efforts and neglect sunk the rest.

As 2018 arrived, no alternative Salton Sea water source had been secured. More than 45 square miles of playa has already been exposed, and that could double by the end of the decade, with as much as three-quarters of the sea drying up. That translates into exponentially more dust finding its way into the lungs of nearby residents. The state has initiated a ten-year plan for dust suppression, tree planting, and wetland habitat projects by 2028, but little has gotten done so far. In October, a state panel rejected a fanciful idea to truck millions of gallons in from the Sea of Cortez in Mexico. The panel instead focused on desalinating the sea.

In the Inflation Reduction Act, Sen. Kyrsten Sinema (D-AZ) secured $4 billion in drought mitigation funds for the Southwest, but whether Imperial County will see any of that is tied to the larger question of how to distribute water from an oversubscribed Colorado River. Squabbling has ensued among the seven states that rely on the Colorado, amid federal threats to make mandatory water cuts if there’s no cooperation. Sinema’s Demo -

On paper, it’s the perfect concept: renewable energy fueling the key to more renewable energy.

More than 45 square miles of playa around the Salton Sea has already been exposed. That could double by the end of the decade.

cratic colleague in Arizona, Sen. Mark Kelly, has proposed that no federal money go toward Salton Sea restoration until California agrees to deeper cuts.

Ruiz has proposed a water budget, where all users figure out how to live with less, through recycling or other sustainability measures. He was more inclined to agree with the state panel’s recommendation of a stable but smaller lake. “The Salton Sea may not be the restoration project that everyone envisions,” he said. “I live in Coachella. I would love that body of water to be the way it used to be in the ’50s. But times have changed and situations have shifted.”

The sea still dominates the landscape, majestic and blue from the road. But at the

shoreline, it’s more of a bubbly black soup. The cracked land near the sea gives way as you step on it. The smell can be overpowering and pollution is evident. Though migratory birds, faced with few options as wetlands recede statewide, stop to rest here, they are often the only sound for miles, bare echoes of an ecosystem that once teemed with life.

But the sea is supposed to come and go naturally. Only now would that be an ecological catastrophe. “It’s in some ways poetic justice for the artificial maintenance of the sea over the course of the 20th century,” Voyles noted acidly. “It’s never been in a situation where it’s been completely cut off from the Colorado River. It’s never been in

a situation when it’s polluted with chemical toxicants and farm runoffs. The conditions have been created that you don’t have a choice but to artificially sustain it.”

About four and a half miles from the city of Niland, a rust-colored collection of pipes and tanks culminate in a flash of steam flying skyward, looking like a postmodern cloud-creation machine. This is where Controlled Thermal Resources (CTR) is building a lithium extraction facility from scratch called Hell’s Kitchen, in honor of a cabin with the same name built on the shores of the Salton Sea in 1908. Other than the ruined surrounding landscape, the only infernal aspect at this relatively

small facility is the ungodly noise. CEO Rod Colwell, a large Australian with wraparound sunglasses, motioned at me to get into his truck; it was the only way we would be able to hear each other.

Hell’s Kitchen uses the same geothermal technology that 11 power plants in the Salton Sea area have used since the 1980s. Super-hot brine is pulled from an underground reservoir a couple of miles below the surface. It is sent into a separator, where the steam rises; it will spin turbines and create electricity. (At Hell’s Kitchen right now, it’s being flared off during testing.) The brine is then reinjected back into the reservoir, closing the loop without depleting the resource.

Direct lithium extraction, or DLE , adds a few additional steps. Geothermal facilities already clean up the brine before reinjecting it; otherwise the well would clog. CTR takes this even further, picking out all the minerals and creating a clean stream. “In

our simple philosophy, if you’ve got bad apples in the barrel, get rid of them all,” Colwell told me.

First, the brine goes into clarifier tanks to remove silica, which for most geothermal plants is a waste by-product that must be trucked to a landfill. CTR plans to sell the silica to a company that makes carbon dioxide–free cement. In step two, minerals like iron, zinc, and lead would be extracted and sold as a bulk sulfide to a foundry. Then manganese, another mineral used in batteries, is pulled out; the expectation is that about five times as much manganese can be produced as lithium. CTR won’t recover much money from those sales, but once they are gone, the prized product, lithium chloride, can be more easily recovered and refined into lithium hydroxide.

The Hell’s Kitchen site, which has been in development since 2016, is expected to produce 49.9 megawatts of baseload power. Once fully developed, CTR expects

to produce 1,100 megawatts throughout the project area, enough energy to power one million homes, and 300,000 metric tons of lithium carbonate equivalent (LCE) per year. “The trick is we’re lithium first and power second,” Colwell said. He expects this plant to be up and running by early 2024, at a cost of close to $1 billion. And purchasers are already lining up. Last year, CTR secured a commitment from General Motors to purchase 20,000 tons of lithium for its electric-vehicle batteries, and Stellantis, an automaker and battery manufacturer, signed a separate purchase commitment this June.

Up until a couple of years ago, such an operation would have been unprofitable. Lithium has been a key element in batteries and energy storage since the 1970s, but it’s a fairly abundant natural resource, and demand has been manageable. Nearly all of it is produced and refined in China, Australia, and the “Lithium Triangle” of

Controlled Thermal Resources is building a lithium extraction facility from scratch outside of Niland.

South America. Even when electric vehicles took off in the mid-2010s and investors started to position lithium as the new oil, the hype got ahead of actual demand, and prices crashed.

But a combination of post-crash underinvestment, the COVID -era crunch—which restricted Chinese production in particular—and continued momentum for EVs powered by lithium-ion batteries generated a supply-demand mismatch. In January 2021, lithium cost under $10,000 per metric ton; by April, it was up to $78,000, where it has mostly remained. Without new sources of production, prices will explode higher, making batteries less affordable and threatening the green transition. The International Energy Agency estimates that demand for lithium will rise 42-fold from 2020 levels by 2040.

This has created a rush for “white gold,” as the light metal is sometimes called. “Over the last 50 years, lithium hasn’t been an industrial-scale commodity,” said Kwasi Ampofo, an analyst with Bloomberg NEF. “There are a lot of players in the game, each of them claiming they found the holy grail. We definitely need disruption with lithium.”

Innovation is needed both to produce more lithium and to mitigate the residual environmental damage. Currently, lithium is produced in two ways: hard-rock mining after blasting open giant pits, or “evaporation ponds,” where brine is brought to the surface and left in the sun until lithium is left behind as the water vaporizes. Hardrock mining was listed by the Environmental Protection Agency in 2006 as the most toxic industry in the U.S. It requires enormous amounts of energy and water, uses sulfuric acid to dig out lithium salts, and produces waste ponds that can contaminate groundwater. Evaporation ponds in places like the Atacama Desert in Chile, meanwhile, use 2,000 tons of water to produce

just one ton of lithium. It also takes up to two years to recover the metal.

Direct lithium extraction, by comparison, is enormously more efficient. “Think of hanging wet clothes on a line,” Ampofo said. “You need sunshine to get it done in 24 hours. Now the dryer comes along, your clothes are dry in 20 minutes.” In testing, DLE recovers twice as much lithium from brine as evaporation. It is also far less energy-intensive, as the geothermal energy that powers it emits 99 percent less carbon dioxide than fossil fuel plants. Automakers wanting to sell EVs as environmentally friendly need clean sources of lithium to actually make that claim, and cheap sources of lithium to make the cars more affordable.

Perhaps best of all, DLE creates a virtuous circle. Geothermal plants have enormous up-front costs compared to solar and wind. But adding lithium extraction makes the payoff much more profitable, and subsequently enables more plants to get built, increasing clean baseload power.

The United States gave up intensive mining for metals like lithium precisely because it was so dirty. Only one site, the Silver Peak evaporation pit mine in Nevada, is currently in operation, producing about 1 percent of global supply, and other U.S. projects planned in North Carolina and Nevada also use older practices. A cleaner extraction process could return the U.S. to prominence without collateral damage, and serve as a model for wherever brines can be called up, including converted oil fields.

In Brawley, I met Luis Olmedo, executive director of Comite Civico del Valle (Valley Civic Committee), a health and environmental justice organization. Signs in the lobby promote air quality management projects and an asthma management academy, while another echoed a familiar refrain: “Restore the Salton Sea Now.”

CCV manages 30 to 40 projects at once, yet “we’re still not even scratching the surface of the need out here,” Olmedo told me. Imperial County unemployment in October was over 16 percent; the state average was 4 percent. Nearly 1 in 5 of the 179,000 residents live in poverty. A high percentage of adults have no high school education. More than 85 percent of the county is Latino, many of them laborers in the winter vegetable fields, and English is often not the primary language spoken at home.

The county’s soaring asthma rates are

likely undercounted, because they are derived from visits to hospitals. Many community members have no access to medical care and go across the border for treatment. Plus, threats to clean air do not come solely from playa dust. “There’s illegal dumping in the middle of the desert,” said Mariela Loera, a policy advocate with the Leadership Counsel who works with communities along the North Shore. “We get folks leaving sofas or appliances or cars, and because it’s dry they’re catching on fire.” Agricultural activities, including controlled burns of cropland, also contribute to poor air quality.

Olmedo spoke of the great wealth embedded in the Valley, but complained that other California communities “use our demographics, use our poverty and take the money to other metro areas.” Agriculture was the Imperial Valley’s first economic boom, but the crops flew across the country while food deserts persist at home. During the Obama administration, 10,000 acres of farmland was converted to solar arrays. But in addition to lost farmworker jobs, the renewable-power transmission lines bypass the local jurisdiction.

Even now, as Imperial County prepares to become a hub for electric-vehicle minerals, the county has only five EV charging stations, one at Olmedo’s CCV office, built with a grant from General Motors. “It demonstrates that whenever these programs are designed, they are not designed for low-income, disadvantaged communities,” Olmedo said.

When I asked locals what the area’s greatest needs were, they mentioned things that seem more appropriate for the early 20th century. “We have these communities, whether it’s Niland or Calipatria or the Salton City area, they don’t have basic amenities,” said John Gay, director of public works for Imperial County. “We’re talking sidewalk curb and gutter, we’re talking parks, we’re talking community centers, things that are just so basic to areas outside of here.” Only half of the 2,500 miles of roads in the county are paved. When storms hit, buses can’t get to school through the flooded washes. Of the county’s 125 bridges, 77 are wooden; one being replaced now was first built in 1940. The cost of a recent bridge repair will be about $6-7 million; the county’s total infrastructure budget in the 2022-2023 fiscal year was $23 million.

Climate change will only exacerbate the

Imperial County unemployment in October was over 16 percent; the state average was 4 percent.

problems, triggering more exposure of toxic dust, higher home cooling bills, and potential forced water cutbacks. Federal drought mitigation funds, if they come through, will most likely pay the farmers that use roughly 80 percent of the water in Imperial County not to plant, freeing up more for the lake and residents. But this would hurt the already-depressed county economically, with money flowing to agribusiness and landowners rather than workers. “If they fallow 20 percent of the lands, that will be 20 percent less jobs available,” Ruiz said. In addition, decreasing crop output at a time of already high food prices will have a national impact on inflation.

Olmedo wasn’t completely pessimistic. He noted that some state and local officials shared a broad vision for helping the county’s entire population, not just the usual elites. But in his voice, you could hear tinges of the legacy of distrust. “We still have all the harms of the past,” Olmedo said. “We need to have that kind of healing and reconciling process here.”

The Department of Energy has sunk $3 billion into improving the electric-vehicle battery supply chain, and the Inflation Reduction Act’s incentives for electric vehicles are tied to building a homegrown battery and mineral industry. Practically everyone in Imperial County thinks that investment should start here.

Michael McKibben, a research professor with the University of California, Riverside, told me that current geothermal operations at the Salton Sea field could produce 115,000 metric tons of lithium per year. But there’s currently only 400 megawatts of geothermal in the Salton Sea area, far less than capacity. McKibben estimated a top-end extraction rate of 330,000 metric tons annually. “To give you an indication, that’s 60 percent of global production of lithium,” he said. In a June 2021 report, the National Renewable Energy Laboratory put the number at nearly twice that. Essentially all lithium use in the United States could be satisfied at this one site.

But there’s one issue plaguing everyone involved with direct lithium extraction: It has not actually worked at the necessary scale. As McKibben explained, the typical DLE system uses nanotechnology particles inside ceramic beads, which select for and absorb lithium or other minerals out of the brine. It’s unknown whether those particles

will fully survive the super-high temperatures, the acidity, or the salinity of the brine. Pipes can corrode or clog, and the concatenation of metals can be complex to separate. “It’s worked on the lab bench scale, but the scale-up is the challenge,” McKibben said. “That’s what keeps them awake at night.”

The three companies in the Salton Sea field all created their own proprietary DLE technology to solve this problem. EnergySource, which operates the John Featherstone power station in the area, expects their ILiAD lithium extraction facility, which is already permitted, to be online by early 2025, according to COO Derek Benson. “Our process has demonstrated very high lithium recovery, while providing excellent separation from other salts,” Benson said over email.

Berkshire Hathaway Energy Renewables, part of Warren Buffett’s conglomerate, owns the other ten power plants in the area, and is building a DLE demonstration project. President Biden held a meeting with BHE Renewables in February, hinting at federal support for the facility. But in October, it was revealed that a $14.9 million Department of Energy grant was rescinded, and anonymous sources noted “problems extracting lithium from the geothermal brines.” Dan Winters, VP of communications for BHE Renewables, said in an email, “I don’t have anything to share at this time, but I’ll keep you in mind as we keep moving forward with this exciting project.”

Colwell seemed pretty bullish. CTR plans to spend the next year-plus calibrating its ion-exchange approach, using different clarifier tanks at different temperatures. Computers hooked up to the tanks test the success rate and make modifications. It’s an endless trial-and-error experiment for the small group of chemists and engineers. “We’ll be always optimizing, tweaking like an old carburetor, you know, trying to get the best out of it,” Colwell said.

But this raises a question that nobody in Imperial County wants to answer: What if DLE never really works? Or what if it’s so difficult to recover lithium cleanly that the world decides to power their batteries another way? There are already companies experimenting with aluminum, zinc, sodium, and vanadium. “We know one thing about extractive sectors, they’re very volatile markets,” said Thea Riofrancos, an associate professor at Providence College who studies resource extraction. “When you have

plaguing

extraction:

a municipality dependent on that, they dry up at times.”

But when you’re already as dry as Imperial County, you’ll make that big bet on transforming into the Lithium Valley.

A decade ago, Imperial County Supervisor Ryan Kelley began advocating for a company named Simbol Materials, which built a demonstration extraction facility in 2015. But acquisition talks with Tesla fell through and the company just ran out of money. Today, the economics of lithium extraction make much more sense.

Last year, in part due to the county’s advocacy, the state Public Utilities Commission set a requirement for power companies to purchase at least 1,000 megawatts of new geothermal by 2026. That creates a lot of forward pressure to permit and approve new plants; if they’re 50 megawatts or below, the county can permit itself, a relatively rapid process.

In February, the Board of Supervisors adopted a plan laying out requests for economic investment. The state delivered on two centerpieces. SB 125, which passed this legislative session, institutes a severance tax of $400 per metric ton for the first 20,000 tons of lithium, scaling up to $800 for every metric ton above 30,000. The tax takes effect January 1, with 20 percent of the funds going to Salton Sea restoration and the other 80 percent to Imperial County. The state also freed up $80 million for a San Diego State University STEM campus on an existing site in Brawley, built in 2003 but never used, that could support a local pipeline of engineers and chemists.

This represents a quantum leap over past efforts to revitalize Imperial County, officials say, providing a major contribu-

There’s one issue

everyone involved with direct lithium

it has not actually worked at the necessary scale.

tion to infrastructure, quality of life, and sustained workforce development. “All of us have family members who grew up here,” said John Gay. “The pathway for our kids is out of the Valley … To have an engineering program to help support our future generation is huge.”

While he lauded the STEM campus, Colwell tried to temper the idea that geothermal and lithium extraction would only need chemists with advanced degrees. “It’s actually 90 percent trades, and 95 percent local sourced. It always has been,” he said. As an example, Colwell cited one of his operators, 34 years old with four kids, who previously managed a ranch. “This guy went and done a part-time course at the college, went from $34,000 a year supporting four kids and a wife, to $90,000 to start,” he said. “And now his kids are going to college, you know?”

CTR’s Hell’s Kitchen site has signed a project labor agreement to ensure quality jobs. But as I looked around, I didn’t see a lot of

manpower. When Loera took some of her North Shore community members to the plants, she said they counted two workers at five sites. An EnergySource spokeswoman quoted me that their facility would support about 70 jobs.

If battery factories co-locate in Imperial County to be closer to the lithium, as CTR hopes for its “clean energy campus,” the job opportunity would be much greater. CTR signed an agreement in April with Statevolt, an Italian firm, to locate a battery factory on its site. “We can see 1,000 jobs for extraction and new geothermal, and that’s fantastic,” Kelley said. “If we can see a [battery] Gigafactory, just one, it would triple that employment.” That might come with its own challenges: There isn’t a lot of available housing in the county, and poorer residents could get priced out by incoming workers.

Even at modest job growth, the tax revenue should help the county, as long as

lithium remains a prized resource. But both CTR and EnergySource told me they did not support the flat fee per metric ton, and would prefer a percentage royalty like what’s imposed on the oil and gas industry. It’s an odd request; under current rates, the severance tax would translate to a little more than 1 percent of gross revenue. A percentage royalty would likely commit companies to even higher sums if lithium prices remain high. Colwell even intimated that to me, saying a flat fee “shortchanges the community.”

Resource management is also critical. There will be an uptick in trucking to carry out lithium and other products, creating noise and kicking up dust. In addition, DLE uses a fraction of the water of other lithium recovery techniques, but it still uses some. When companies send lithium hydroxide to purchasers, the mixture includes 53 percent water. Colwell said CTR is using the steam condensate as a primary water source, and

mostly empty downtown on a Friday afternoon in El Centro, the largest city in the Imperial Valley and the county seat

A

A replica Tesla charging station at Bombay Beach, an art colony on the edge of the Salton Sea

has used the same gallon as many as eight times. But in the middle of a drought where the Salton Sea’s water needs are urgent, figuring out where that excess water comes from is critical.

A paper authored by Michael McKibben and two other UC Riverside researchers highlights another problem. It suggested that the Salton Sea’s “receding shoreline opens new land suitable for construction” for geothermal plants. “The most favorable reclamation Scenario for adopting these specific technologies will be [one] in which the Sea is allowed to shrink.” In other words, maximizing industry operations is synonymous with perpetuating the continued public-health hazard of exposed lake beds.

I asked McKibben why that would be good for the community. He acknowledged that there needed to be a balance. “If we want to bring in thousands of workers for

lithium extraction and battery manufacturing, we don’t want to expose them to playa dust and give them all asthma,” McKibben said. “The health problem needs to be solved in parallel with the development issue.” He added that the toxicity was really caused by agricultural runoff, and the geothermal companies don’t want to be blamed for it or asked to fix it on their own.

Colwell did express some frustration with some community members who think that geothermal operations take water from the Salton Sea or pollute it with chemicals; it’s a closed loop and nothing touches the lake. But he recognized the need to improve environmental conditions very personally. “I get asthma. I used to run, believe it or not, and I just can’t since I’m living here, I just choke up.”

County officials must figure out where to direct revenues. The plan is to share money

with every city, and hold community conversations on how to spend it. “One of the things we’ve heard at multiple public forums is the voice of everyone has to be heard,” said Miguel Figueroa, CEO of the county government. “Our communication with the state, cities, local stakeholders, has been that we are open to listen, and understand their wishes.”

Community outreach is devilishly complex in a region with a large non-Englishspeaking population that’s wary of outsiders. Getting Spanish-language materials and transcripts to people has been a challenge. So has something as simple as finding a place to talk. “We’re out trying to borrow spaces, we have to bring in speakers and mics and tables and chairs,” Luis Olmedo said. “There are no suitable spaces to convene the community.”

Some key community members have

found it rewarding. CTR is working with a local tribe, the Torres Martinez, on a proposal to cover portions of the playa with gravel pulled from tribal quarries, and use it as a footing for solar panels. The partnership was sparked through a community meeting. “We found their mission is parallel to the tribe’s,” said Thomas Tortez Jr., Tribal Council chairman of the Torres Martinez.

But others who work directly with community members, while optimistic about the opportunity of the Lithium Valley, are concerned about a lack of awareness. “When talking to new folks, the first thought is: What is that, where is it, what does it look like,” said Mariela Loera. “How is it going to affect my public health? How will it impact how my community looks, is it industrial? And how it will impact the Salton Sea?”

Olmedo’s CCV visited Hell’s Kitchen recently. But he distilled to me the community’s natural skepticism. “We’ve been trained to wait with the hope and promise of jobs. Do you want jobs or environmental protection? Taxes or health care protections? We’re always being asked to give up something.”

Kelley bristled a bit at these points. “We get challenged for not being historically transparent or inclusive or open. And I think those challenges may have been justified in years past but they are not today,” he said. “Today we’re being so inclusive. I’ve been going to the town of Niland every month except for COVID for the last ten years.”

The way a couple of community advocates put it to me is that there’s a differ -

ence between community engagement and community information. “It’s great to bring in community members, but if we’re going to bring them to the table, they need to know that they can change outcomes,” said Frank Ruiz.

One attempt to assemble stakeholders has been the Lithium Valley Commission, a state-sponsored blue-ribbon panel run through the California Energy Commission. The LVC held more than 20 public meetings over two years, and its draft report was just issued in late September. But I talked to four members of that commission—Kelley (the vice chair), Colwell, Olmedo, and Ruiz. None of them had participated in writing or even seen the report before it was released to the public. Colwell said he was submitting comments in response; when I talked to Ruiz, he said he hadn’t read the whole thing yet.

The LVC draft report acknowledges longstanding community skepticism and the need to head off any new harms. It contains 44 recommendations, which fall into a handful of buckets. They include market opportunities like state research and development funding and tax inducements; environmental standards and required mitigation measures; a mandate to the Imperial Irrigation District, the local water authority, to identify water sources for anticipated projects; workforce and infrastructure development, including transmission upgrades so Imperial County benefits from geothermal power; and, at the top of the list, funding to “continue tribal and community coordination, education and engagement activities.” The final version must be delivered by December 1.

Olmedo, the LVC’s designated representative for disadvantaged communities, was reluctant to accept the invitation to serve. He didn’t want it to be seen as a way to project community support without substance. When he did join, he found it hard to truly represent the Valley. “How does a community know what they want when they’ve never had it?” he told me.

But despite his reservations, despite the weight of history and the legacy of exploitation, Olmedo’s concluding message to me was rather stirring, almost like an impromptu stump speech. “We can show the rest of the world what clean extraction looks like. That needs to be our legacy of our generation right now … We need to be a generation like Kennedy was, the vision

of MLK and the civil rights leaders, of Cesar Chavez. We need to bring it all together. This is our moment. If we blow it, we don’t get another chance.”

Once upon a time, Bombay Beach was a magnet for holiday recreation. Now it looks like what might happen if a comet wiped out all life on Earth. The low-slung buildings, littered with graffiti, appeared on the verge of collapse. People do live here, in barely upright trailers and fabricated homes. A county sheriff was trolling around, scoping out potential trouble. But practically everyone I saw was headed toward a road that curved up onto the Salton Sea’s shore.

Getting past the berm, you see why Bombay Beach has today become a postapocalyptic art colony. Sculptures appeared everywhere, drenched thick with irony: an empty phone booth with the receiver swinging lightly, a rusted-out mailbox, a doorframe detached from its home, two water skis stuck in the sand, a metal sculpture with cut-out lettering that casts a shadow on the ground reading: “The Only Other Thing is Nothing.”

This lakeside sculpture garden presents one way to think about the Salton Sea and the surrounding area. The decrepitude is intentional, the desolation part of the ambience. There’s a clear message received: It’s the end of the world as we know it, and I feel fine.

Perhaps unintentionally, the last installation I see on the beach offers a signal of the region’s possible future. It was a wooden replica of a Tesla charging station, complete with a “high voltage” warning and a corrugated tin roof meant to stand in for a solar panel. It was probably the artist’s idea of a joke. But in the earnest belief of elected officials and corporate executives and community advocates, it can be real: clean car engines built with clean metals, a green economic explosion, and the natural healing of a burning planet.

As much as Bombay Beach’s counterculture thumbs its nose at these grand visions, it also shows how Imperial County has survived the scars and the storms and the dust. The artists use every piece of the landscape, every found object, every resource, transforming driftwood and trash into beauty and life. No future for the Salton Sea and the people who live here is preordained. But the building blocks are all here, just waiting to be put to work. n

Community outreach on the lithium projects is devilishly complex in a region with a large non-English speaking population that’s wary of outsiders.

European Disunion

Fragmentation over energy and defense policy weakens the EU and fails to solve urgent problems.

By Robert Kuttner

ILLUSTRATION BY DIEGO PATIÑO

PARIS – The European Union faces its most severe challenges since it was formed in 1993. The near-term problems are bound up with Russia’s invasion of Ukraine and the fissures it has exacerbated, in terms of both energy and military policy. But the EU has always been something of a fair-weather confederation. When a crisis occurs, Europeans are reminded that despite brave talk of European solidarity, the real power remains with its member states, or more precisely its largest member states: Germany and to some extent France.

The last major crisis was the financial collapse and deep recession that began in 2008. Nations with more vulnerable economies, particularly the “PIIGS” countries of Portugal, Ireland, Italy, Greece, and Spain, needed fiscal relief. But they were powerless to resist the perverse austerity demands extracted by the European Central Bank and the European Commission, which were basically proxies for Germany’s extreme fiscal conservatism and the neoliberal bias of the EU generally.

In the current crisis, the fragmentation if anything is more severe. On the energy front, Europe, led by Germany, gambled that Russia, supposedly integrated into the West, would be a reliable supplier of cheap energy. That fantasy was exploded, but Germany maintains Russian energy ties. In terms of defense policy, Europe is split into frontline nations such as Poland and the Baltics, most threatened by and desiring the strongest possible resistance to Vladimir Putin, and the German bloc, with its long-standing trade links and anxieties about widened war.

The precursor to the EU, beginning with the Common Market of 1957, was a customs union. Members were free to pursue nation-

al economic policies, often state-led. It was not until the creation of the European Union that free-market policies were imposed on member nations. The Maastricht Treaty, the EU’s founding charter, requires free movement of capital, goods, services, and persons throughout the union. This undercuts both regulation of finance and national public investment. When the EU was in formation, American conservatives worried about “fortress Europe” as a planned economy. But if anything, Europe has become a fortress and a vector of neoliberalism.

The ideological bent of the EU is deceptive, because it still has extensive universal social services such as national health systems and public preschools, and it has led the U.S. in regulating abuses of tech. But in terms of core economic policies, many of the policy instruments that had powered the postwar recovery, such as public ownership and national economic planning, are now prohibited or strongly discouraged by the EU charter. The EU has compelled market mechanisms even in realms where they are perverse: Well-functioning public systems such as postal and rail services have been privatized.

This bias has exacerbated Europe’s current energy crisis. The EU is too weak and divided to have its own coherent energy policy, but just strong enough to hobble the policies of its member states.

France demonstrates how EU pressure on member nations to shift to market pricing, in an energy sector that is far from an efficient market, has caused volatility, supply problems, and price-gouging. France begins with two advantages. Its national electrical utility is a public entity. And France’s early

shift to nuclear power, love it or hate it, gave it a relatively clean and reliable source of energy. (The government’s failure to invest adequately in maintenance, leading several power plants to go temporarily offline earlier this year, is a separate story.)

But in 2010, France succumbed to EU demands to introduce competition to its electricity sector. The form of competition was spurious and counterproductive. The national public utility, Electricité de France (EDF), was required to sell power—100 terawatthours, or 25 percent of France’s nuclear production—at wholesale rates to newly created “competitors,” who were merely resellers.

In principle, this was supposed to produce price competition; in practice, it produced manipulation and price-gouging. When energy shortages came with the Russian invasion of Ukraine, the pseudo-

market system compounded the volatility of both price and supply.

As Anne Debrégeas , a researcher at EDF and a leader of the trade union there, explained in a published interview, “Talking about EDF’s competitors is a misnomer: They are mainly suppliers who produce nothing and whose activity consists of buying electricity at a discounted price … to resell it for a profit.” She added, “EDF ’s competitors do not produce, store, or even choose electricity. They only trade and speculate and they put their logo on the invoice.”

Worse, under the European system, of which France is one variation, power suppliers buy energy on markets where price is set by the “marginal cost,” namely the most expensive source of supply at any moment. In the context of scarcity, such as the current shortage of natural gas, this

just drives up retail prices to consumers and industrial users.

In January 2022, the conservative French government compounded the problem by requiring EDF to increase by 20 percent the electricity it must sell to its competitors. EDF, which produces the power, has been forced to go on the open market and buy electricity at 257 euros/MWh, and then resell to these competitors at 46/MWh. As Debrégeas points out, “There is no guarantee that they will pass these lower prices along to their customers.”

Between 2007 and 2020, the price of electricity for French consumers increased by about 50 percent, while production costs rose by less than 15 percent. The difference was the increased costs of speculation and profit. And this was before the Ukraine crisis.

EDF is a regulated monopoly with network

France’s national public utility EDF must sell power at wholesale rates to resellers, who trade it at a profit.

efficiencies. It would be far better to end the pretend competition and take advantage of EDF’s public, not-for-profit status, which also facilitates planning for a green transition far more effectively than a fragmented system with multiple players. This strategy, however, falls afoul of EU rules that mandate competition. No question competition can be a good thing, but not fake competition that feeds speculation when nationalized, strictly regulated public utilities work just fine.

France, with a conservative, marketfriendly government under President Emmanuel Macron, has not pushed back against the EU as aggressively as it might have. By contrast, Spain and Portugal, the only two EU member states currently led by majority-socialist governments, have gone their own way on energy policy. After months of wrangling, they finally got the European Commission, the union’s executive branch, to carve out an Iberian exception to EU rules on energy pricing.

The work-around is complex, but basically Spain and Portugal are permitted to decouple the price of gas from that of other energy sources, so that the general price of electricity is not set by the most expensive marginal source of supply. A prime reason why the Commission had to give in was that Spain and Portugal have a far higher use of renewables than most European countries. Wind, solar, and hydro generate nearly half their electricity.

The larger point here is that the policy of the EU, despite its general neoliberal bias, is whatever its member states say it is. If there were more than two socialist governments (out of 27), the EU could have drastically different policies, with more public planning and public ownership and less fantasy about markets.

According to a comprehensive study by the Bruegel Institute, well before Russia’s inva-

sion of Ukraine in February 2022, Russia was manipulating European natural gas markets. Russia began to cut gas exports in the summer of 2021, and deliberately failed to refill Gazprom-owned storage sites in the EU. “By the beginning of July 2022, Russia was sending one-third of previously anticipated volumes, leading to a more than tenfold increase in EU gas prices,” according to Bruegel.

EU nations have been severely divided over whether and how to mitigate the affordability crisis for ratepayers. The European Commission, heavily influenced by its most influential member states, has been unable to agree on a common formula, and each nation is going its own way. Unlike the Commission, national governments have to directly face voters, who are justifiably angry about energy costs, so member states have come up with a crazy quilt of subsidy and price cap systems. Subsidies to energy consumers, according to Breugel, range from 3.6 percent of national GDP in Greece to just 0.1 percent in Denmark.

France has capped electricity and natural gas price increases at 15 percent for consumers and small businesses for 2023, and has budgeted €16 billion to make up the difference between the market price and what users pay. In Belgium, the government has cut various taxes to compensate consumers for higher energy costs. Denmark has introduced price controls and special subsidies for low-income people. The European Commission, under its respected president, Ursula von der Leyen, has sought to bring some order out of this chaos, so far to no avail.

All told, between the start of the European energy crisis in September 2021 and late October 2022, European nations have spent a total of €573 billion to shield consumers from rising energy costs. And of that sum, more than 40 percent, or €264, has been expended by Germany (whose GDP is only about 25 percent of the EU’s GDP).

But higher electricity costs not only harm citizens, especially low-income ones. They have also exacerbated Europe’s slide into recession. According to a survey by Le Monde, the most energy-intensive sectors, such as fertilizers, glass, aluminum, cement, ceramics, and steel, have closed factories or reduced production. In Germany, steel production has fallen by 5 percent since the start of the energy crisis; ArcelorMittal, a leading steel producer, shut down a blast furnace in Bremen and curtailed production in Hamburg. In

the Netherlands, Nyrstar decided in August to temporarily shut down its zinc smelting complex. A report by the trade paper Chemical and Engineering News quotes Mariana Moreira of the consulting firm Wood Mackenzie, warning that some sectors of the chemical industry have seen operating rates fall to 40–50 percent of capacity. The SKW Piesteritz fertilizer plant in Germany had to suspend production in mid-September, and overall the country is seeing as much as a 70 percent decline for fertilizers, where natural gas is an important input.

In Europe’s interconnected three-way crisis of energy, inflation/recession, and military policy against Russia, Germany continues to be both a leading player and an outlier, which has bred resentment. On September 29, on the eve of an emergency meeting in Brussels of energy ministers looking to fashion a common approach to energy pricing, German Chancellor Olaf Scholz unilaterally announced a €200 billion subsidy program for German households and industries. Germany has also resisted the idea of a common price cap, which is supported by more than half of the EU member states and by von der Leyen.

Other leaders were furious at Germany, both at the undercutting of a common energy policy and the risk that this strategy would increase energy demand, raise prices, and divert scarce resources from less-affluent member nations. There was also annoyance at the hypocrisy of Germany, ordinarily a crusader for fiscal discipline. Scholz plans to pay for the subsidies by reactivating an emergency off-budget borrowing scheme that was created in 2020 to help German companies survive the COVID emergency.

Germany was the prime sponsor of the idea that Europe could rely on Russia as the main long-term supplier of the continent’s energy needs. Germany sponsored the Nord Stream pipeline projects, which have been widely criticized on sustainability as well as security grounds. Nord Stream 1 was heavily promoted by former German Social Democratic chancellor Gerhard Schröder. Right after leaving office in 2005, Schröder became chairman of the Nord Stream construction company and subsequently served as chairman of the boards of both Rosneft and Gazprom. The German parliament stripped him of his subsidized office for these conflicts of interest, though he was allowed to keep his pension.

Higher electricity costs not only harm citizens; they have also exacerbated Europe’s slide into recession.

Schröder’s personal corruption is extreme, but Germany’s amicable stance toward Russia transcends party. The policy of reliance on Russia for energy was solidified under the long chancellorship of Angela Merkel. In February 2022, as the West was retaliating against Russian actions in Ukraine, Scholz did agree to suspend the certification of Nord Stream 2. And in September, Scholz seized control of three refineries in Germany owned by Rosneft.

With his three-party coalition and pacifist sentiment within his own SPD, Scholz has had to walk a tightrope on the issue of military support for Ukraine. Germany has increased its own military outlay for its own defense and its provision of weapons systems to Ukraine such as howitzers and rocket launchers—but not the systems that Ukraine needs the most.

In September, several SPD representatives in the Bundestag and SPD members of the European Parliament issued a public letter warning of escalation and calling for diplomatic negotiations with Putin. Unlike a similar (and far more cautious) letter by members of the U.S. Congressional Progressive Caucus, the German one was not ignominiously withdrawn but contributed to Scholz’s temporizing.

Scholz is somewhat more hawkish than many in his party, but he has had to be pushed hard by his own coalition partners, the Greens and the Liberals, as well as by Washington, Kyiv, and other EU member states. In April, Scholz came up with a needlessly convoluted scheme, in which NATO members that still have outdated Soviet tanks, such as the Czech Republic, Slovenia, and Slovakia, would send these to Ukraine, and Germany would replace them with German tanks. Even this commitment has not yet been carried out.

But Ukraine needs modern battle tanks, such as the Leopards and Marders that are made in Germany. Scholz has refused to provide these. In September, Ukraine’s foreign minister, Dmytro Kuleba, publicly chastised Scholz, declaring that there was “not a single rational argument on why these weapons cannot be supplied, only abstract fears and excuses.”

Other European nations are also wary of Germany’s increasingly close courtship of China. Over the past six years, China has been Germany’s largest trading partner, with volumes increasing to €245 billion in 2021. Some in Scholz’s Cabinet, such his economics minister Robert Habeck, have criticized China’s protectionism and human

Increasing German trade with Russia and China undercuts the common Western

rights violations. But Scholz is pursuing an even closer relationship.

Scholz’s coalition partners and many in his own party were appalled by his decision to ignore the critics and go forward with a sale of 25 percent of the Port of Hamburg’s container terminal to shipping giant Cosco, which is closely tied to the Chinese government and Communist Party. Six ministers in Scholz’s own Cabinet formally opposed the sale.

On the eve of Scholz’s trip to Beijing on November 2, the first by a G7 leader since the beginning of the pandemic, the foreign minister in his coalition government, Green Party leader Annalena Baerbock, pointedly warned, “We clearly stated in the coalition agreement that China is our partner on global issues, that we cannot decouple in

The real power in the EU lies with French President Emmanuel Macron and German Chancellor Olaf Scholz.

stance.

a globalized world, but that China is also a competitor and increasingly a systemic rival; and that we will base our China policy on this strategic understanding and also align our cooperation with other regions in the world.”

Scholz went ahead with the trip, which was plainly aimed at enhanced trade with China, and brought with him the CEOs of 12 major German companies, including Volkswagen, Siemens, and Merck. In Beijing with Xi Jinping, Scholz deliberately annoyed his hosts by calling for respect for universal human rights, but emphasized his interest in expanded trade. Beijing reciprocated by opening the door to imports of BioNTech COVID vaccines, but only for foreign residents, at least for now.

German flirtations with China stand in direct contrast to EU strategy. For example, European trade officials have been promoting supply chain policies where democracies committed to renewable energy function as a kind of soft trading bloc. This common effort is directed not so subtly against China, which is neither a democracy nor a reliable source of supply and presents a mixed picture at best on the renewableenergy transition.

One of the first fruits of this common strategy was the Green Steel Deal , first

negotiated in November 2021 between the EU and the U.S. and expanded this past November. The deal, negotiated on the eve of the Glasgow climate summit, gives tariff preferences to steel made with less carbonintensive manufacturing processes, which both keeps out dirtier Chinese and Russian steel and rewards cleaner steel made in the U.S. and EU. Since then, Biden has hardened the U.S. stance toward China. Increasing German trade with Russia and China undercuts the common Western stance.

Beyond differences over support to Ukraine and energy, Germany is an outlier when it comes to economic policy. The strong German economy is somewhat better bolstered against recession than the rest of Europe. German unemployment is currently 5.3 percent, better than that of the next largest economies—France, Italy, and Spain—and well below the EU average.

Germany’s generally better employment picture reinforces its chronic preference for fiscal austerity, which it has imposed on the rest of Europe. When the terms of conversion of the European Community (an internal free-trade area) into the more cohesive European Union were being negotiated in the early 1990s, Germany’s price for giving up its cherished deutsche mark was

that EU member nations accept mandatory German-style limits on both budgets and national debts. Germany did not allow these to be suspended even during the prolonged recession after the collapse of 2007-2008. And the European Central Bank, successor to the Bundesbank of the deutsche mark era, has taken on Germany’s views on interest rates and borrowing. Price stability takes priority over economic expansion.

This stance is a strain on EU unity in normal times, but lately that strain is at a breaking point. EU inflation is now running at a ruinous 10.7 percent, and most economists predict recession. To an even greater degree than in the U.S., the tight-money policy of the European Central Bank makes no sense. Europe did not have the extra public spending during the pandemic that the U.S. had; and Europe’s price increases are even more purely driven by supply shocks, notably energy, than by increased demand.

But the ECB has hiked rates almost in lockstep with the Fed, partly to defend the euro, which has sunk roughly to parity with the dollar, and partly because tight money is in the institution’s DNA . The break with Germany could be coming, however. The current ECB president, Christine Lagarde, is French and a shade more dovish than

Europe’s remedy both for dependence on Russia and for global climate change is an accelerated shift to renewables.

past ECB presidents. In announcing the ECB’s latest three-quarter-point rate hike in October, Lagarde hinted that it was now time for the ECB to start easing.

As the largest and most politically powerful nation in the EU, Germany seemingly has a responsibility for the union as a whole. For the most part, however, Germany has interpreted that responsibility in the narrowest terms of fiscal and monetary conservatism, not as concern for Europe’s general economic well-being.

During the long European post-crash recession, for example, Germany opposed the idea of Europe-wide recovery bonds and insisted that each nation was basically on its own. In integrating the former DDR into an enlarged Federal Republic, Berlin spent something like €1.3–2 trillion to promote economic development of its East. It has opposed any such policies on a pan-Euro -

pean scale. Expansive policies stop at the German frontiers.

The role of Germany in Europe recalls a famous book and theory by the economist and economic historian Charles Kindleberger. In his monumental 1973 study

The World in Depression , Kindleberger pointed out that one major reason why the global economic and financial system collapsed in the 1920s was that no nation took responsibility for it. Before World War I, Britain had a system-maintaining role as a money center and via its open domestic markets and management of the gold standard. After World War II, the U.S. stepped into the hegemonic role, both for economic and for geopolitical motives. But in the interwar period, Britain had become too weak to play that role and the U.S. was isolationist. There was no hegemonic power as each nation looked to its own narrow self-interests, and the whole

system descended into depression. This insight came to be known as the theory of hegemonic stability.

Looking at Europe as a miniature global economic system through that lens, it’s evident that Germany has largely defaulted on the role of hegemonic stabilizer, and there is no one else to play it. Despite its dominant status, Germany looks to its own self-interest, at the expense of both the European system and other European nations.

The Commission of the European Union, ostensibly its executive branch, is far too weak to play that role, because the real power player is the so-called European Council, which is composed of the leadership of each individual nation. Under the EU constitution, major decisions require unanimity. In practice, that means consensus among the major powers, who can press others into going along. But there is no such consensus on major energy issues.

Another core tension in European energy policy is the contradiction between shortterm and long-term goals. For the long term, which turns out to be alarmingly short, the remedy both for dependence on Russia and for global climate change is an accelerated shift to renewables. This is the stated goal of the EU and all of its member states, sketched out in proposals by relatively centrist think tanks such as Bruegel as well as by progressive parties and environmentalists. The social democratic research organization FEPS proposes “A Green Deal for All,” with much more rapid progress toward a carbon-free Europe, financed by new EUwide public investments.

But in the short run, Europe needs to get through this winter without its people having to choose between freezing and starving, and without exacerbating its incipient recession by shutting factories. This conundrum has required more reliance on fossil fuels. Europe has accelerated imports of liquefied natural gas and has even increased its reliance on coal. Germany has delayed the phaseout of nuclear plants, an expedient endorsed even by the Greens.

Mother Nature has taken pity on the continent. Europe had the warmest October on record, another ominous consequence of global warming, which in the short run is a paradoxical gift. If mild November weather continues, Europe could be spared the worst consequences of the Putin-induced gas shortage. That bit of perverse luck, of course, must not deter Europe’s progress toward a rapid carbon-free energy future.

The EU’s neoliberal bent undercuts its capacity both for economic recovery and for a cohesive energy policy. During the postwar boom, Europe was a stronghold of social democracy. Many of the institutions of social Europe were actually constructed

under the auspices of Christian democratic rather than social democratic governments, in the spirit of the Catholic Church’s social encyclicals and as medicine to resist the working-class appeal of both communism and fascism. The strength of trade unions was another major factor.

After the disgrace of laissez-faire in the 1920s, and the further taint of the collaboration of many large corporations with fascism, there were literally no parties in the early postwar era that argued for free markets. British Tory “wets” like Prime Minister Harold Macmillan helped complete the Labour Party’s welfare state. Conservative French nationalists like Gen. Charles de Gaulle were statists in economic development and social welfare, a French tradition that dates back to Louis XIV ’s economic-policy architect, Jean-Baptiste Colbert. In negotiating France’s role in the early European Economic Community, de Gaulle insisted on strong member states—a Europe des patries

Those nations, rebuilding after World War II’s devastation, engaged in substantial public investment and public planning. All of this capacity has been upended by the neoliberal rules of the EU.

Joe Biden is able to dust off World War II–scale economic planning and industrial policies to pursue “Make it in America.” It would be illegal under EU rules for French President Macron to pursue “Make it in France.” For example, Paris has been exemplary in the rapid conversion of its bus fleet to all-electric. But RATP, which runs the Paris bus system, buys from several companies based in Spain, Italy, Germany, and Poland, as well as some from the French manufacturer Bolloré. It would be illegal under EU law for France either to favor domestic suppliers or to require content agreements (which are standard in much of the world) so that more of this production could be in France. American law, by contrast, has long had Buy American rules for transportation outlays.

It would be different if Europe pursued its own “Make it in Europe” industrial policy at a continental scale. There was a time, before the EU, when Europe went in for targeted industrial policy. A prime success story is the Airbus consortium, created in 1969 with state aid, explicitly to challenge U.S. dominance. But the current EU, with its free-market bias, has little enthusiasm for such a policy at an adequate scale.

With its weak governing structure and divisions among member nations, the EU has a long history of dealing with crises by muddling through. But muddle-through has not solved the challenges of steadily worsening living standards for increasing numbers of ordinary Europeans.

The unelected European Commission is remote from the lives of most Europeans. While the bureaucrats in Brussels work to fashion some kind of consensus among leaders of member states to keep the union from collapsing, the living standards and life horizons of most Europeans keep sinking. Neoliberalism has widened income and wealth gaps throughout Europe. And in the absence of strong policies to battle recession, neoliberalism remains Europe’s default setting.

The border-free travel and the use of the euro as a common currency have been great conveniences for the investing class and for those affluent enough to travel. It has also helped some poorer people, mainly from member states in Eastern Europe, to seek work in Paris, Berlin, or London. But in the absence of strong programs to increase good job opportunities for locals, this trend has intensified anti-immigrant sentiment and was a prime driver of the British working-class vote for Brexit.

During the postwar era, the social democratic national policies of Europe’s individual nations enhanced broad support for political democracy and the idea of a Europe that would never again go to war. But today, the EU is increasingly seen as an elite and cosmopolitan project that fails to address the plight of ordinary Europeans. That widespread sense, in turn, reinforces the turn to nationalism—not the salutary nation-rebuilding of the postwar era, but the ultranationalism of neofascism. The anti-democratic features of the EU and the crude neofascist contempt for democracy reinforce one another.

There is a policy in waiting, one that combines a more rapid shift to renewable energy with related job creation, and public investments underwritten by Europe’s moreaffluent nations at adequate scale. Several such blueprints have been written, and the logic of such a strategy is overwhelming. But given national fragmentation, weak EU institutions, and a bias toward austerity and free markets, it’s hard to imagine how such a policy will come about. n

In the absence of strong policies to battle recession, neoliberalism remains Europe’s default setting.

Workers on Solar’s Front Lines

Unions are fighting to ensure solar workers are skilled tradesmen, not just exploited temps.

By Lee Harris

el campo, texas – Gary Bylander has spent the last four years traveling the country in his camper installing solar panels, mostly through the temp staffing agency Aerotek. His last job was in San Antonio, where he worked for $18 an hour at an array owned by Korean subsidiary OCI Solar Power.

Every job for a temp agency in solar ends with uncertainty. After the San Antonio gig ended in October, Bylander thought he had talked his way into an upcoming project in Wisconsin. This is typical in solar, where the next temp job could be hundreds of miles away.

Still, Bylander’s mind was at ease until, over dinner, his wife felt a sharp pain in her abdomen and grew hot to the touch. “I’ve seen her sick, but I’ve never seen her how she was that day,” he told the Prospect. She was soon bent over from cramps; he raced her to the hospital.

As Bylander sat in the waiting room while his wife underwent tests, his phone beeped with a message from his Aerotek recruiter. She was requesting him the following day, a Friday, in Wisconsin, a 26-hour drive away. He couldn’t make it tomorrow, he said, but could be there on Monday.

Later that same day, when Bylander tried to log in to the company website, which contains insurance information, he couldn’t access his account. The security questions were changed, he said, with a new ques -

tion about the name of his firstborn son; he doesn’t have children. Meanwhile, the hospital quoted them $32,000 for emergency gallbladder removal surgery.

Bylander was already doubtful that Aerotek insurance would have covered the operation. The apparent lockout from the web interface clinched it: The family couldn’t afford the surgery. They decided to drive across the border to get his wife the surgery in Mexico. The Wisconsin job was in the back of his mind. “I thought, it’ll be fine. I’ll just handle this, and then I’ll talk to my recruiters.”

After a two-and-a-half-hour drive from San Antonio, his wife underwent the surgery in Piedras Negras and recovered safely. But when he texted recruiters and his old superintendent, asking them to confirm that he could still start on Monday, he received no response—and he still hasn’t. The only communication he has received from Aerotek since then, he told the Prospect , is an automated message asking how he enjoyed the experience with the company. He was never even issued a termination notice. (Aerotek did not respond to multiple requests for comment from the Prospect .)

“Their recruiting office is somewhere in Iowa. They don’t know to put a face to the name. They don’t know how I work out in the field,” Bylander said. “The guy that was

Workers “throw glass,” mounting photovoltaic panels on racking systems.

hired yesterday, and me being there for four years—we’re the exact same guy” to them.

Bylander’s situation is typical in one of the fastest-growing segments of the construction industry, solar panel installation, where you can pour in years of your life without getting ahead. Staffing agencies are notoriously unpredictable, known for nepotistic hiring and promotion, arbitrary firings, low pay, and zero transparency.

The low quality of solar jobs is an open secret. “Building Solar Farms May Not Build the Middle Class,” The New York Times cautioned last year. Labor reporter Lauren Kaori Gurley wrote about the brutal conditions faced by workers living in tents and motels, chasing jobs from state to state. But until recently, solar has remained a relatively niche industry, and workers have

endured backbreaking conditions in relative obscurity.

Now, solar energy is at the core of Democrats’ political strategy to recapture working-class voters by creating good jobs in green industries. Jobs in installation are taking off, sped along by the Biden administration’s climate and jobs bill, the Inflation Reduction Act, which passed in August. A separate fight to stand up domestic solar manufacturing could create highly skilled, higher-paid jobs—and will also be an extraordinarily heavy lift to pull off.

The law has likely unleashed an even bigger burst of green spending than expected. Analysts at the investment bank Credit Suisse say the Congressional Budget Office’s estimate of how much tax credits will be used undershoots by as much as half. Busi-

nesses and households will use the tax credits at such a high rate, they predict, that the IRA could trigger $1.7 trillion in investment over the next decade.

Much of that investment will flow to states where jobs in the energy sector have been concentrated. It’s a chance to overhaul energy jobs in parts of the Sun Belt where unions are low-density and jobs are high-risk.

California, where the largest amount of solar energy has been deployed, has used almost entirely union work through the five building trades. But Texas is hot on California’s tail. A handful of union projects in right-to-work states like Texas provide a glimpse into what the industry could look like if organized labor can use high demand as an opportunity to organize.

Amanda “Pinkie” Hebert, right, left her job as a Texas correctional officer to work in solar.

To see this sunnier version of the industry, I went to El Campo, a hamlet outside Houston that grew up as a shipping point on the New York, Texas and Mexican Railway. Today, Tokyo Gas America, a Japanese utility, and TotalEnergies, a French petroleum firm, are leasing fallowed farmland in El Campo to plug 10,000 acres of solar panels into an electrical grid that feeds the hurricane-exposed refineries of the muggy Gulf Coast.

Construction company Rosendin Electric has hired some 1,800 members of Houston Local 716 of the International Brotherhood of Electrical Workers (IBEW) at this site, which is expected to be the largest solar facility in Texas to date.

“We’ve found that in right-to-work states, being union is an advantage, especially in a market where labor is short all around,” Mike Greenawalt, Rosendin’s CEO, told the Prospect. “We flourish in Arizona, Texas, the Carolinas, Tennessee.”

As the solar installation industry takes off, this is the moment where it could be put on two wildly divergent tracks—decent union jobs for electricians, laborers, and other tradesmen, or exploitative temp staffing agencies. With tight labor supply, heavy investment, and new construction worker protections in the IRA , unions just might seize the moment to raise prevailing wages and turn temp solar jobs into craft work. But it will be an uphill battle to recapture routed terrain.

After 11 years as a correctional officer with the Texas Department of Criminal Justice, Amanda “Pinkie” Hebert decided to quit and install solar panels for a living.

Her husband worked in El Campo for

Rosendin, one of the largest employeeowned electrical contractors in the United States, and loved his job. For a long time, though, Hebert had doubts. She faced neardaily harassment working at an understaffed prison, and didn’t want to find more of the same in the male-dominated construction industry.

Hebert heard through friends that Rosendin had dealt swiftly and seriously with a few rumored cases of sexual harassment. And, since taking the leap, she has been vindicated. “Rosendin actually seems to be a company that gives a damn.” (“I think I sounded like a company fangirl, and I want to point out that I’m absolutely not. I’m a union girl,” she added in a follow-up note.)

Hebert has been active in IBEW Local 716 meetings, and is especially enthusiastic about recruiting more women into the construction industry, where she believes the explosion of new opportunities should not go exclusively to men.

Leaving her stultifying job as a prison guard has freed up her energy. After a long week, she said, “I feel good enough to go home and make dinner, instead of just ordering pizza, or falling asleep in the shower.” In her new spare time, Hebert has even found time to take courses in psychology, a longtime passion, she said. “I’m 40 years old, and I’m starting over.”

Texas’s hot energy jobs market has provided more workers with similar opportunities to jump ship. Rosendin’s unionized employees described high levels of hope for the new industry, and similar experiences on the job: gritty but gratifying work, reliable management, and an unusual degree of job security in an otherwise highly unpredictable, fickle, and nepotistic industry.

For some, that job security allows them to pursue the itinerant lifestyle typical of solar workers with more confidence. Skylar Dossenbach, Hebert’s superintendent, has traveled to more than ten states with the company over the past 13 years. Originally from California, she owns horses and participates in cattle herding competitions. Traveling is part of the thrill.

Others are committed to sticking around South Texas. David Woolley, a soft-spoken electrician who previously worked at Freeport LNG and BASF gas and chemical refineries, says he loves getting to hone his electrical skills in outdoor work. At the gas plants, “we always had to be careful walk-

ing beneath the pipes, might have acid or something dripping on you, or get exposed to chemicals,” he said. “It was nasty, the plant was dirty … I worried about getting blowed up.” Now, he sees a career installing clean energy, and he would like his son to join him.

Union workers with Rosendin described a basic level of care that is unheard of at other sites. During the sweltering Texas summer, the company provided “cooling stations” with fans and cold water for workers during their breaks. Several employees said that on other job sites, they had seen colleagues pass out in the hot sun.

General foreman Joe Ledezma, who works out of IBEW Local 1015 in McAllen, has worked non-union jobs in other states like Kansas, and found that some paid great wages. But the final straw in the nonunion sector came while he was working on a job in Baytown, when his grandfather, who raised him, died. He explained that he needed the day off.

“If you leave, who’s going to do the job?” he remembers being asked by his supervisor, who told him not to bother coming back. “I’m like, ‘I’m pretty sure we’re all replaceable,’” Ledezma said. In his new job at Rosendin, he feels confident that he could tell his superintendent that he needs as much as a month off, “to take care of business.”

In neighboring fields on the same job site, Rosendin employees work alongside laborers from Workrise, a temp staffing agency hired by the project developer to install racking systems, staking brackets into the muddy farmland. Despite their proximity, Rosendin employees have almost no contact with Workrise hires, several said. But rumors about the terrible working conditions spread through the fields.

“I personally never seen ’em even take breaks. I don’t even see ’em take lunch. I’m sure they take lunch, but I never seen ’em do it. And they’re all around!” one Rosendin employee told the Prospect. “Whenever you’re in the union, you have a high belief system. We’re a brotherhood, and they’re not in the club,” explained Jordan Bonds, an electrician. “We don’t talk to them, they don’t talk to us.”

Despite numerous inquiries, I was not able to get in touch with a single Workrise hire at the El Campo site for this story. But interviews with several non-union solar workers, and people familiar with temp

Unionized employees said that job security allows them to pursue the itinerant lifestyle typical of solar workers with more confidence.

staffing agencies, revealed that workers are subject to highly volatile and unpredictable terms and conditions.

Five years ago, the industry standard wage for general labor in solar was $18 an hour, according to a recruiter for a top temp staffing agency who agreed to speak with the Prospect on condition of anonymity. Hourly wages rose during the pandemic to around $21, and pay as high as $28 was not unheard of, as workers told recruiters that they might as well stay home and receive unemployment.

Since then, the industry standard wage for general labor has fallen back to $18 an hour, despite recent hype around solar contracts. Temp agencies attract workers by offering a flashy per diem, a daily allowance for travel and meals, when workers come from more than two hours away. Unions, on the other hand, typically pay higher base wages but source local workers who don’t need to travel.

That is teeing up a brewing fight over travel pay that, for the building trades, is déjà vu. During President Obama’s second term, as the administration pushed to raise standards in West Texas’s nascent wind industry, construction companies like Mortenson were willing to negotiate on many labor issues, but travel pay was a sticking point, according to a person knowledgeable about the talks. Temp agencies, willing to provide per diems, subsequently took off.

“They’ll give you a per diem just to get warm bodies,” said Bonds, the Rosendin electrician. But while working for nonunion shops, he found that colleagues were new and untrained, and the level of turnover meant that people were quickly thrust into unsafe jobs. “They had me in charge of doing things I had never done in my whole life, just because I happened to be a decent employee—one of the few.”

Temp agencies require workers to shoul-

der all the risk. They are only paid for days when they work, so they are not paid their per diem if it rains all week, though they still bear the costs of living onsite. Workers haggle over wages and compensation, and pay at the same job site for similar work can vary widely.

Staffing companies ask workers to put up travel and lodging costs up front, and work at least one weekend before they get their first paycheck. The recruiter recalled one man who drove across the country for several months of work, before being laid off two weeks into the job, and getting stuck with travel costs in both directions.

Now, temp agencies foresee major returns from President Biden’s infrastructure plan. Workrise, traditionally an oil and gas industry recruiter that changed its name last year from RigUp, has raised several rounds of funding from the venture capital firm Andreessen Horowitz (a16z). True -

The Rosendin employee at left said that being a member of IBEW grants him competitive pay, even in right-to-work states like Texas and Florida.

Blue, the parent company of PeopleReady, a top temp staffing agency in solar, has spun green temp jobs into a lucrative investment. The company used 38 percent of capital for share buybacks over the 2017–2021 period, and separately predicted high growth rates in its latest earnings report since the IRA “could inject billions into the labor market.”

Unions are now fighting to capture a greater share of jobs in an industry where temp staffing agencies are eager to come in and undercut local workers.

Sometimes that has meant making hard compromises. Rosendin’s El Campo site is the first major solar project Houston IBEW Local 716 has partnered on, and union president Mark Landrum has learned a few lessons.

“We did give them a little bit of a break, since we hadn’t done it before, on some of the pay and benefits, to make sure we got the work, because it was so massive,” he acknowledged in an interview with the Prospect.

Most of the workers sent to El Campo through IBEW are not electricians but solar construction workers, or “CWS,” who individually lift and mount each of the more than one million solar panels that will eventually outfit the site. While a smaller apprenticeship program exists for members doing electrical work, like welding and stringing wires, CWS, who are the majority of workers on the site, are paid a floor of $15 to $18 an hour, according to Landrum.

The biggest concession the union made may not have been on pay, but on something seemingly more technical: the title of workers employed on the job. CWS, or “solar installer,” is a controversial designation.

Training a “solar installer” rather than an electrician is like training a “burger-flipper” rather than a chef. It confers a limited number of skills, which are only appropriate for the current industry. And it does not correspond to any Department of Labor–certified

apprenticeship program, so it could be a dead end for workers who could otherwise flip to electrical work in another sector.

Harold Casner, 20, has been working with Rosendin for almost three years, since graduating high school. Cheery, with floppy blond hair, he says he plans to eventually join an apprenticeship program, but he’s not in a rush.

“I get life insurance, and they provide me with whatever I need, really,” Casner told the Prospect. He likes being exposed to working with various types of equipment. Now that they have the IRA in hand, Landrum said, the union plans to insist on apprenticeship programs for future deals. This was just about getting a foot in the door.

Using IBEW to “throw glass,” as workers refer to lifting and screwing in panels, is also controversial. Laborers have argued that this might be better suited to them. Asked about this, Landrum said, “eventually all trades will try to claim portions of the work. Of course IBEW wants it all.”

Nationally, the building trades are eager to make sure that a new class of green workers are exposed to a wide range of skills. Apprenticeship requirements to access the tax credits in the IRA are meant to help this along. But unions expect they could be tough to implement in a Republican administration, so there are only a couple of years to cement industry trends.

A worker with a narrow skill set—like a solar panel plugger-inner—has to travel to chase jobs. A journeyman electrician, on the other hand, can stay put as different projects come through—solar, wind, or electric car battery charging stations. A more diverse skill set, in other words, increases family and community stability.

As the industry takes off, and as contractors pay prevailing wages, unions could gain more of a foothold. But it will be months before that happens. Formula grants went out in the summer and fall. Competitive grants are only now being awarded and finalized. Even water infrastructure loans are just getting made. We won’t see the first wave of this year’s spending until spring. Labor demand on the core infrastructure side is probably a few months away. All told, the IRA will take at least a two-year ramp.

“In the state of Texas, our biggest thing holding us back is people. If there’s a gigawatt out there to do, we may not even pursue it, because we absolutely cannot staff the job,” said Greenawalt, Rosendin’s CEO.

Other forms of unpredictability that have plagued the industry have also affected Rosendin. The company laid off more than 200 workers over the summer when panels made by China-based JinkoSolar Holding Co. got stuck in customs. (Jinko sources most of its polysilicon from U.S. and European-based suppliers like Michigan’s Hemlock Semiconductor, it said in a statement.)

More reliable domestic supply chains are the other major part of Biden’s solar investment strategy. The goal is for solar panels to be not only installed but also manufactured in America.

That could also create more permanent jobs, whereas installation is largely transitory. While Rosendin created hundreds of construction jobs, the solar array will only require two full-time permanent jobs for operation and maintenance of the facility. The company requested and received a special tax abatement, which would normally have required the creation of ten jobs.

Local union leaders don’t want to miss the moment, but favor more options for workers. “We’ve got to find a way to introduce the green while we still have the oil, and make it a nice, even 50/50 split,” said Landrum, the Houston IBEW president.

Bylander is now working through a different temp agency, LaborMax. He has to wake up early enough to arrive by 5 a.m. and accept a task for that day. The most he has made in a day with LaborMax is $86 for ten hours of construction work, building a Cheddar’s Scratch Kitchen. “Those are trades that are supposed to get paid way better. But I guess they found a little life hack, going through a temp agency and asking who knows how to do this, and paying the absolute bare minimum,” he said.

Now, Bylander is trying to be hired into the oil and gas industry. He has submitted over 20 applications to companies including Halliburton, ProPetro, and Schlumberger. But his résumé hasn’t attracted much interest. He recently updated it, skipping all mention of the solar industry, and instead listing the relevant skills he has gained: hydraulic mechanic, heavy equipment operator, 12k operator. But he’s not optimistic.

“What’s a bunch of old oil field people going to think when someone like me is applying? There’s all kinds of things that go into solar. Every single trade is in solar. But they think, all this kid knows how to do is throw panels.” n

Training a “solar installer” rather than an electrician is like training a “burger-flipper” rather than a chef.

THE BEST TAX SYSTEM ON EARTH

What America and the world can learn from the Faroe Islands

By Ryan Cooper

vágar island, the north atlantic – It’s the worst turbulence I’ve ever felt. For a moment, it feels as though the wings have fallen off the plane. Out the window, I can see the wind tearing shreds of water off the heavy surf. I cinch up my seat belt and hold onto the seat for dear life. But the rest of the passengers seem unbothered. Across the aisle, even a one-year-old baby is completely serene sitting in its mother’s lap.

My plane is landing at the Vágar airport in the Faroe Islands, and apparently, extreme weather is something even babies get used to here. The lesson is emphasized when I get off the plane—no jet bridge in an airport this small—and almost get bowled over by the wind.

The Faroes, a group of 18 islands in the North Atlantic about halfway between Norway and Iceland, are a peculiar place. They are part of the Kingdom of Denmark, but also semi-independent. All Faroese are Danish citizens and use the Danish krone as currency, but they have control over most other aspects of domestic and foreign policy. They are not part of the European Union, mostly run their own welfare state, and have negotiated separate fishing and trade treaties with neighboring countries.

But I’m not primarily here to report on the blustery fall squalls, or the staggeringly beautiful scenery, or the abundance of

sheep, or the cuisine (the fermented fish is worth trying), or even the local legend about seals that can turn into women—the reason why the tiny village of Mikladalur has a huge bronze statue of a naked woman on its beach. No, I’m here to investigate the tax authority, which is called TAKS.

The Faroes have a tax system that is unique even among their Nordic neighbors, and probably the best in the world. Its operating principles are centralization, efficiency, and simplicity. It’s not the most riveting subject for a travel holiday, I’ll readily admit. But it’s beautiful in its own way— and it makes a major difference in the lives of every Faroese person, from the lowest worker to the owners of the biggest businesses. It’s hard to imagine fully implementing such a system in the United States, but we still might learn from their example.

The Faroes are one of the richest countries in the world by per capita GDP—even slightly richer than Denmark itself. On first sight, this is rather hard to believe. The islands are 180 miles from the Shetland Islands on one side and 400 miles from Iceland on the other, with a population of just 54,000. It rarely gets that cold thanks to the warm Gulf Stream current, but it also doesn’t get that warm even in the brief summer. Thanks to the northerly location, in the winter there

The village of Trøllanes (translation: “troll peninsula”), on the northern tip of Kalsoy, one of the Faroe Islands

are only about five hours of sunlight per day.

The land is impossibly gorgeous, with fjords, brilliant green hills, and spectacular cliffs everywhere you look. One particularly remote promontory was used as a setting for the villain’s lair in the most recent James Bond movie. In celebration, the government set up a gravestone, carved by a local stonemason, at the site where in the film (spoiler alert) Bond supposedly dies.

But it’s a harsh beauty. When I hiked up to visit the grave marker, near the famous Kallur Lighthouse, the views left me spellbound, but relentless wind felt like it could easily carry me off one of the hundred-foot cliffs on every side. On another trek out to the Bøsdalafossur waterfall, I later learned that a Chinese woman out hiking with her husband had disappeared on that same trail, almost certainly because she fell into the ocean. After days of searching, authorities gave her up for dead.

So how is this isolated, rugged place so rich? It turns out that the Faroes have turned fish into a cutting-edge economic engine. First, some of the world’s most sophisticated fishing operations make big money catching

pelagic fish like mackerel, blue whiting, and herring. A smaller sector catches demersal (that is, bottom-feeding) fish like cod and haddock. “The only thing we export of goods is fish of some form,” Hans Ellefsen, an economist at the University of the Faroe Islands, told me. The total catch is about 30,000 to 40,000 tonnes of demersal fish, and 500,000 tonnes of pelagics. Out in the harbor at Tórshavn, the capital, I saw some of these huge fishing vessels, sparkling clean, festooned with electronic equipment—not the grimy trawlers I had been vaguely expecting.

Second, an even more sophisticated aquaculture industry has grown up in the Faroese fjords, largely farming salmon from eggs to fry to fully grown fish, in a way that avoids disease, parasites, and excessive pollution. That’s created a secondary export industry of subcontractors. “Aquaculture is a quite complicated operation, so we have a lot of companies who produce lighting systems for the fish cages … feed barges, monitoring systems,” Niels Winther, managing director of an employer association called the House of Industry, told me. As a result, salmon alone—which commands

a substantial premium thanks to its color and taste—accounts for 45 percent of Faroese exports. Taken together, fish represent about a fifth of the Faroese economy, and fishing by far its highest-paying jobs.

The fishing business, and the fact that Faroese have been living off the sea for over a thousand years, seems to give locals an unsentimental attitude toward ocean ecosystems. At one point in a bar, three drunk, tall young men—like the rest of Western Europe, the average Faroese height seems to be several inches above the American figure—loomed over me and politely but sternly demanded to know whether I ate chicken or beef. When I responded in the affirmative, they argued that this meant Americans should drop their opposition to whaling. I later learned that this was because there is a traditional annual hunt of pilot whales called the grindadráp, toward which American environmentalists have been highly critical. (Alas, my suggestion to trade an end to abusive feedlots and whaling at the same time was not received enthusiastically.)

That said, the Faroese government has implemented both internal quotas and trade

Danish Prime Minister Mette Frederiksen shows off the Faroe Islands’ greatest economic asset, salmon, which accounts for 45 percent of its exports.

agreements to prevent overfishing, thanks in part to a drastic collapse of catches in the mid-1990s that helped trigger an economic crisis, causing the population to shrink by about 10 percent in just a few years. Everyone agrees that must be avoided at any cost. Even the fishing companies agree that the country should not kill the golden herring, though there is a lot of dispute about the shape of marine regulations, both internally and with other countries.

The crisis also partly motivated the establishment of a national bank, the Landsbanki Føroya, which handles the issuance of government debt, monitors financial risks, and maintains a rainy-day investment portfolio equal to 15 percent of GDP. “If there comes a crisis … we have some liquidity to spend and prepare for what to do,” Malan Johansen, the bank’s managing director, told me. Not for the first time, I was struck by the contrast of the Faroes’ cautious economic diligence compared to slapdash American governance— if the U.S. established such an account, it would have about $3.5 trillion in it.

The overall Faroese economy is frankly bursting with prosperity. Unemployment has been below 4 percent since 2015, below 2 percent since 2019, and currently sits at a mindboggling 0.5 percent—an all-time record low. Employers are so desperate for workers that immigrant laborers from all over the world are common; I met a friendly Polish bartender named Mateusz who had actually been recruited from Iceland. The Faroes’ income inequality is the lowest in the world; its Gini index, where 0 would be perfect equality and 1 all income going to one person, is 0.21, below even the other Nordics and far, far below the American figure of 0.49.

Underpinning the Faroese economy is an exceptionally sleek and efficient tax system. One way to start to appreciate the mag-

nificence of TAKS is by thinking about how Americans pay taxes. Imagine you run a medium-sized business with a few dozen employees. You’re legally required to send your workers’ payroll and income taxes to the government, so you hire a payroll processor like ADP or QuickBooks to handle that for you (along with employer-sponsored insurance and other benefits). It costs something like $50 per month, per employee, and you have to go through an annoying onboarding process every time you hire someone.

Or imagine you’re one of those employees. At the very least, you’ve got to file a bunch of obnoxious paperwork to the IRS every year. If you make much money at all, it’s advisable to keep track along the way of everything that might be eligible for some tax deduction—your mortgage interest, child care expenses, commuting costs, and so on—and enter it all correctly come tax day. It gets worse if you have a side job. Your two bosses don’t talk to each other, so they don’t withhold the correct amount of tax from your combined income. You’ve got to figure out what you owe and instruct one

or the other job to withhold more money, or send quarterly payments to the IRS, or sort it out when you file your tax return—and potentially pay a penalty for underpaying.

This all adds up to an enormous burden on the American people and our economy. Filing taxes takes up an estimated 6.5 billion hours each year—as the right-leaning Tax Foundation points out, the equivalent of 3.1 million people working full-time for the whole year. Assuming average wages for the types of work involved, that adds up to a $313 billion burden on the economy. In terms of actual business, the Bureau of Labor Statistics estimates that there are 83,190 tax preparers, making an average income of $51,080. Payroll processing is also a big business, and a necessary employer expense.

I sat down at the TAKS office with Director Eyðun Mørkøre and its head of communications Diana Gilstón, who explained how Faroese businesses and workers face about as little of this kind of hassle and expense as could be imagined. Here, all ordinary wage and tax transactions are processed through a central government system, and TAKS auto -

Faroes were a location for the most recent James Bond movie.

The operating principles of the Faroese tax system are centralization, efficiency, and simplicity.

The

matically takes out whatever it estimates you owe before the money is deposited in your bank account, along with any welfare payments—like family or unemployment benefits, pension payments, and so on. (Selfemployed people and businesses do have to file tax returns, but this can’t be avoided.)

The Faroes also have an exceptionally clean tax code, with no deductions of any kind for ordinary employment income. A simple tax code, of course, is easier to administer, and Mørkøre does his best to keep it that way. “If the politicians are trying to make some changes … I try to defend my tax system. ‘Don’t do it that way, do it another way,’” he said. The point isn’t to tell the government what kinds of policies it should do, but to urge them to be done in the most efficient manner. He pointed to a commuter benefit run by TAKS that is administered as a direct payment instead of a tax deduction, like it is in Denmark.

This extreme simplicity is unique even among the Nordics. Norway, Finland, and Sweden all have deductions—though of course not nearly as many as the U.S., with our rat’s nest of tax loopholes. As of 2022, the Treasury Department counts up 165 tax expenditures—a big reason why the American tax code takes up something like 2,600 pages. The Faroese code could be printed on a fancy restaurant menu.

Remarkably, nobody I spoke with was quite sure about how and why the TAKS system developed. Mørkøre said it was developed in 1984 with help from the Danish government, but wasn’t sure why. Djóni Højgaard, an adviser at the Ministry of Finance, speculated that one possible reason Denmark didn’t adopt it was because at the time it already had a world-class tax system, while the Faroes did not. My sense is that TAKS was only a modest improvement back in the ’80s, but with the rise of computer technology and the internet, its clean foundation allowed it to improve greatly.

Other European and Asian countries have tax authorities that calculate your tax liability for you each year, and thus require little more than an annual check-in for normal employees. That’s far better than how the IRS works in the U.S., outsourcing much of the bureaucracy to ordinary citizens. But TAKS is a substantial upgrade even from the world’s most efficient and hassle-free tax systems, which provides several immediate advantages.

First, because it monitors every income stream for each individual, and does it contin-

uously instead of once a year, it can automatically adjust tax withholding on the fly, and almost always hits the correct figure. “When the year is over, almost everybody ends up with ‘Oh, it’s correct. I don’t have to pay any more, and I don’t get any money back,’” said Mørkøre. Continuous collection also eliminates the time risk of the government losing out on tax payments if companies go bankrupt before TAKS could cash their checks.

Second, nearly all government benefit payments are consolidated and partly automated. Instead of welfare agencies having to maintain their own payment systems— like how each American state maintains a separate unemployment bureaucracy, many of which are severely dysfunctional—the government simply tells TAKS who is eligible for what program, and the payments are rolled into the daily distribution.

Third, most of the burden of payroll processing is removed from employers. “Business, they are very happy about this,” Mørkøre told me. “They don’t have to do anything else—they don’t have to transfer some money to the tax authorities or some pensions, or the other funds, nothing. It’s all done at the same time.”

Fourth, TAKS’s requirement that everything happens through their bank-centered system both greatly simplifies their administrative tasks and ensures that virtually every person has a bank account.

“It’s impossible to get any money from the government if you don’t have a bank account. Nothing is paid out through a check. It doesn’t exist,” said Mørkøre. Partly because of that requirement, plainvanilla bank accounts take only a few minutes to obtain for any native Faroese, or

The Fossá waterfall on Streymoy Island

just a bit longer for any immigrant so long as they have a job.

In America, by contrast, there are an estimated six million “unbanked” people who rely on payday lenders or other financial predators for simple access to the payment system, and about 7 percent of adults don’t have internet access, and so couldn’t use any TAKS-style automated customer service tools.

Fifth, Statistics Faroe Islands (the national statistics agency, called Hagstova Føroya in Faroese) has access to data of unparalleled quality and timeliness. “The tax system is a big source for Faroese statistics,” Høgni Vilhelm, an agency statistician, told me. “We collect all taxes and income in microdata,” which they use to publish regular analyses of economic trends.

By way of comparison, U.S. agencies typically rely on surveys for these purposes. The Census Bureau and the Bureau of Labor Statistics, for instance, maintain the Current Population Survey (CPS), which contacts about 60,000 households monthly to interview them about their jobs, income, and other questions. The results are then demographically adjusted such that they represent the whole American population, to create macroeconomic figures. BLS statisticians are as smart as they come, but this process is both cumbersome and potentially wrong. Initial estimates are adjusted after their initial publication, and are frequently found to be inaccurate.

SFI, by contrast, publishes unemployment and income figures that are as close to a literal representation of the Faroese economy as could be imagined—with every single job and what it actually pays down to the krone included. And because the vast majority of the data is collected automatically, this comprehensive data is actually easier to collect than

surveys. (At time of writing, the most recent unemployment report found there were exactly 151 full-time unemployed Faroese.)

Other Nordics also use tax administrative data for their national statistics, but they aren’t as timely as the Faroes. The IRS does have administrative data based on tax returns, but very few institutions are allowed access to them, and they are far less accurate thanks to rampant tax avoidance and errors.

On its face, an ultra-efficient tax authority doesn’t seem like an especially Nordic-style project in the usual tradition of strong labor unions, generous welfare states, and so on (though it does have those things as well). It might even be considered somewhat conservative. The Tax Foundation, for instance, is constantly complaining about the onerous burden created by America’s ultra-complicated tax code. Before he quit politics, Paul Ryan used to talk about how great it would be to file your taxes on a postcard (though he did nothing of the sort with his signature policy accomplishment, the 2017 tax law). Republicans, of course, deliberately starved the IRS over the last decade. The agency has a Taxpayer Advocate Service that produces an annual report to Congress on how the agency is functioning, and the 2021 version reads like someone who has been locked in a basement surviving on chicken bones and crusts of bread for 15 years shouting out a window, begging passersby for help.

“There is no way to sugarcoat the year 2021 in tax administration: From the perspective of tens of millions of taxpayers, it was horrendous,” the report admits, cataloguing tens of millions of delays in return and refund processing. This was due in part to a big backlog of unprocessed returns from the previous two years; the worst phone service in IRS history; a glacially slow response to IRS requests for corrections; and on and on.

Money is the main problem. The “number of individual income tax returns the IRS receives … has increased by 19 percent since [fiscal year] 2010, while its baseline appropriation on an inflation-adjusted basis has decreased by nearly 20 percent.” (This is because Republicans took control of the House in 2010 and refused to fund the IRS so that it would stop auditing rich people and corporations, which did indeed happen.) Because the agency is barely keeping on top of immediate tasks, it has no leftover money to upgrade its increasingly ancient systems. “The two IRS systems containing the official records of individual

and business taxpayer accounts are the oldest major technology systems in the federal government,” notes the report, which only leads to more spending over the long term.

Other problems lie outside the agency, however. The IRS still spends billions laboriously processing paper returns by hand and sending out paper checks. But it couldn’t impose an online-only requirement without help from Congress to get universal access to bank accounts and the internet.

The latest reconciliation bill passed by the Democrats had an additional $80 billion for the IRS over the next decade, which is obviously highly welcome. But it will take years for the agency just to dig itself out from its current hole, much less to begin modernizing its procedures—and who knows what Republicans might do the next time they take power.

Faroese conservatism, such that it is, bears absolutely no resemblance to that of U.S. Republicans. But when Mørkøre and Gilstón started talking about the TAKS budget, it sounded a little familiar. “I have a slide here, I love to show it,” Mørkøre said. “This one is how much we cost to finance our work here. In 2012 we cost 72.8 million. This year we cost 70.5 million—less than we did ten years ago. And the economy has grown a lot since.”

As I listened to Mørkøre, however, it became clear that the implications of his austere budgeting were not remotely what they would be in America—in fact, they were the exact opposite. I realized that the greatest benefit of all of how the Faroes had set up their tax system had to do with the TAKS agency itself.

The need for workers at TAKS has been gradually cut back by careful automation of routine processes, while the remaining staffers have focused even more on auditing rich people and companies. Indeed, that’s one reason for the efficiency upgrades—so it can plow some of the savings into audits. Big companies “are consuming quite a lot of energy in-house. We don’t want to skip that,” said Gilstón. “Eyðun, he really wants to make that more intensive. But that’s why we want IT to be better, he wants to take the resources and put it into the controlling department.”

Instead of the TAKS budget being randomly hacked away by an extremist party with an ideological hatred of taxation, staff had been cut back only when doing so would not reduce the accuracy of tax collection. On the contrary, collections from audits have increased over time. In 2015, it collected about 60 million kroner, while in 2021, “we did correction

The Faroese tax code could be printed on a fancy restaurant menu, with no deductions of any kind for ordinary employment income.

for 250 million kroner, and that’s mostly businesses,” said Mørkøre proudly.

Meanwhile, the broader economic context changes the implications of streamlining the TAKS system. The rest of the Faroese economy is so red-hot and desperate for workers that cutting back on TAKS staffing and budget materially helps everyone else by freeing up resources and workers. “I have told all the people here that in ten years we are going to be less than 100, because we have to be more efficient,” Mørkøre said. “And I think it’s the right way to do, because the tax authority, we have to be as efficient as possible, so cheap as possible, so we can have more money or more staff at the hospital taking care of the elderly, things like that.”

Visiting the Faroes, I learned a whole new way that America is a humiliating international laggard. Our tax system is about the worst of all possible worlds—expensive, ultra-complicated, inefficient, slow, inaccurate, and an enormous headache for the citizenry. And there’s another option that reverses virtually all of those factors.

After returning to the States and thinking it over for a time, I’ve concluded that TAKS would not have been built without the broader context of Nordic social democra -

cy. Ideologically, the absence of deductions and butter-smooth tax payment process reflects a profound acceptance of government—especially stiff taxation—that is radically at odds with American ways of thinking. We are addicted to tax deductions, credits, and exemptions because this style of policy allows their recipients to pretend as if they are rugged individualists who don’t depend on government help, and as if taxes are a species of theft. The habit is so deeply ingrained that even when Democrats were passing major climate policy in the Inflation Reduction Act, nearly the entire energy investment program was camouflaged as a tax benefit, in the process adding even more paperwork headaches for the beleaguered IRS.

That is not to say that the Faroes don’t have a conservative side. On the contrary, the conservative coalition won the last election in 2019, and upon taking power scrapped an auction system for fishing permits the prior leftist government had set up. But the contest between right and left takes place between political goalposts that might as well be on a different planet from the U.S. So it’s probably out of the question to think we could simply copy-paste the TAKS system into America. But we could still learn from their example. We might not be able to scrap every deduction in the tax code, or have every payment routed through a central system. But we could build an opt-in system for anyone who dislikes paperwork. And we could have a cheaper IRS with fewer staff that handled most tax returns automatically, if we cared to follow the Faroese example of careful, long-term investment in computers and automation. I’m sure Director Mørkøre would be happy to explain to any IRS official how he’s done it. Just remember to bring a rain jacket. n

This article was produced with support from the People’s Policy Project, a crowdfunded think tank.

The harbor in Tórshavn, the capital and largest city of the Faroes

TAKS would not have been built without the broader context of Nordic social democracy.

CULTURE

The Corruption of the Legal Profession

By Brad Miller

Servants of the Damned: Giant Law Firms, Donald Trump, and the Corruption of Justice

By David Enrich Mariner

Jones Day, one of the world’s largest and most powerful law firms, disgraced itself in its work for Donald Trump. The firm bears much of the responsibility for Trump’s destruction of the norms upon which democracy depends. It ultimately did not cross a line to keep Trump in power after the 2020 election, but drew the line just inside of Rudy Giuliani. David Enrich, the business investigations

editor for The New York Times, tells that story in Servants of the Damned: Giant Law Firms, Donald Trump, and the Corruption of Justice. But Enrich also reports the role of Jones Day and other giant law firms with giant clients— “BigLaw,” in the lingo—in the destruction of norms on which America’s rule of law depends. It is difficult to imagine Trump as more than a minor vanity candidate if those norms still held.

I have a history with Jones Day. Enrich’s account of the firm over the last four decades is for me the story of the road not taken.

I now represent a union pension plan in litigation over the servicing of subprime mortgages in which the pension plan invested

Books

through mortgage-backed securities. Jones Day represents Wells Fargo, one of several defendants. Servicers take kickbacks from insurers and other vendors, impose contrived fees on homeowners that servicers keep for themselves, and charge wildly excessive fees in foreclosures, which we argue violates bright-line legal protections of pension plan investments.

We filed the lawsuit on March 5, 2018. Almost five years later, the judge has yet to decide threshold legal questions, largely because Jones Day, and the BigLaw attorneys for other defendants, have filed hundreds of pages of briefs on every imaginable argument, no matter how strained, to dis-

A new book shows how corporate law firms bear great responsibility for the degradation of the rule of law.

The Washington, D.C., offices of Jones Day

miss the lawsuit, which required that we file hundreds of pages of briefs to respond. Until the judge decides those issues, the lawsuit is in hiatus.

I now have a low opinion of Jones Day, but that has not always been so. In 1977 and 1978, I worked for Jones Day during the summers while in law school. My friends took summer jobs with law firms in New York and Washington. I took a job with a Cleveland firm to be contrary. It was not a step down: Jones Day had a national reputation and an enviable roster of clients. It represented manufacturers, utilities, railroads, real estate companies, department stores, and parts of John D. Rockefeller’s old Standard Oil empire. The dignified office in the Union Commerce Building felt like the big time.

Enrich’s history paints a before-and-after picture. To show the before, he tells the story of a horrific industrial accident in a densely populated neighborhood in Cleveland in 1944. East Ohio Gas Company stored liquefied natural gas at extreme low temperatures in four large tanks. A leak in one of the tanks led to an explosion and fire that destroyed two factories and 79 homes, killed 130 people, and hospitalized 225 more. The bodies of 61 victims were unidentifiable.

East Ohio was a Jones Day client. A team of lawyers quickly considered the company’s options. Instead of obstructing legal proceedings to wear down victims and minimize settlements, or trying to blame homeowners for improper fireproofing—what Enrich calls a “scorched-earth approach”—Jones Day advised the client to accept responsibility and pay fair compensation. Within a few months, East Ohio paid what would today be $100 million.

My own experience was also that the firm told clients to do the right thing. A partner assigned me a research project for a manufacturer of consumer products. A discounter wanted to sell the client’s products at a lower price, and the client was reluctant to displease established customers with unwelcome price competition. The client developed a list of possible restrictions on the resale of its products, and ran them by Jones Day.

I spent a couple of weeks on the research. Restrictions on retail sales were generally permissible if there was a legitimate business reason, but not if imposed to hinder competition. From what I was told, the client’s motive was only the latter. I con-

cluded that since we knew the client’s only true motive was anti-competitive, all of the restrictions would violate the antitrust laws and the firm could not allow the client to say otherwise in legal proceedings. The partner agreed and said he thought the firm could talk the client down.

My experience at Jones Day was consistent with what my law professors said in class: Law was an honorable and learned profession that I should be proud to have entered. I liked Jones Day, and they liked me well enough to offer me a permanent job upon graduation. I would have taken their offer had I not gotten an offer of a clerkship from a federal appellate judge in North Carolina, my home state.

In 1985, Jones Day took on a new client, the tobacco company R.J. Reynolds, in lawsuits brought by smokers for lung cancer and other related diseases. RJR would eventually account for 19 percent of the firm’s total revenue, almost $94 million a year.

The approach of cigarette manufacturers was “never [to] settle cases—only fight, fight, fight.” Jones Day adopted the strategy to blame the victims. The firm contended that the connection between smoking and health problems was not “scientifically established,” nor was smoking addictive. Smokers continued to smoke because smoking was an “enjoyable habit,” much like chocolate.

Another Jones Day client was Abbott Laboratories, a leading manufacturer of powdered baby formula. Abbott faced lawsuits on behalf of newborns who contracted meningitis shortly after drinking Abbott’s formula. Infants who survive meningitis often have severe and permanent brain damage and are unable to care for themselves for the rest of their short lives. Abbott’s defense in every case was that something else could have caused the infant to contract meningitis.

In tobacco and baby formula cases, Jones Day adopted the scorched-earth tactics that

the firm advised East Ohio against in 1944. The firm made burdensome demands for information about every aspect of the plaintiffs’ lives, supposedly to identify other possible causes of the illnesses. In a baby formula case, Jones Day tried unsuccessfully to introduce into evidence a restraining order against a family member issued years after the child contracted meningitis. In a smoking case, a lawyer questioned the widow of a smoker in a deposition about an affair that her husband had, which was the first time the widow learned of the affair. A Jones Day partner told Enrich that a sexually transmitted disease could have caused her husband’s cancer, and the questions therefore were relevant.

Jones Day’s strategy, a Jones Day lawyer said anonymously, was “to make these cases extremely burdensome and expensive for plaintiffs’ lawyers.” Shortly before trial in a baby formula case, Jones Day delivered a “huge jumble of boxes” to the judge, which supposedly contained evidence that the firm might introduce at trial. The judge did not believe the firm would really use more than a fraction of the documents, but that it listed the documents as potential evidence “to snow the plaintiff’s lawyers with tens of thousands of pages of paperwork that they would have to sift through,” which the judge called “incredible obstructionist conduct.” The judge sanctioned one of the Jones Day lawyers after trial for “underhanded, win-at-all-costs tactics.” He told Enrich that “their conduct was appalling. It was the worst by a factor of ten” of all his years on the bench.

Jones Day won the case.

The judge’s criticism of the Jones Day lawyer appears not to have affected her standing in the firm. BigLaw firms apparently now regard such sanctions the way financial institutions regard SEC sanctions: as a cost of doing business.

Jones Day had ample time to prepare for Enrich’s book. Enrich sent “fact-checking memos” to lawyers as he did his research that laid out what he learned. Jones Day’s response was fierce. Enrich’s publisher received multiple letters attacking Enrich, “accusing me of bias and sloppiness and warning about the risks of publishing a book if it had any defamatory material in it.”

In an op-ed in The Wall Street Journal shortly after the book’s publication, Kevyn Orr, a senior Jones Day partner, said

In recent years, Jones Day has used their influence for clients’ benefit and the firm’s profits.

Enrich’s “goal is … [to] deny the protections of the law to the disfavored.” “Unlike totalitarian systems that ensure the ‘right’ person wins every case,” Orr wrote, “America’s adversarial process strives to ensure that cases reach the right outcome based on a dispassionate analysis of law and facts. For that process to function, there must be zealous advocates on both sides.”

There is more to the ethical requirements for lawyers than zealous advocacy. The conduct that Enrich describes violates the rules of court and the canons of legal ethics. Obstructionist conduct is unethical. It is unethical to make cases needlessly burdensome and expensive to wear down the other side. Attempts to intimidate an opposing party, or threats to expose painful personal information, are unethical.

Not even BigLaw’s stunted version of legal ethics excuses false evidence as “zealous advocacy,” however. Jones Day appears to have crossed that line too.

By the time Jones Day began to represent R.J. Reynolds in 1985, the tobacco industry had known for at least 30 years that smoking caused a number of deadly diseases. The industry had known for at least 30 years that nicotine in cigarettes was highly addictive, and had manipulated nicotine levels to addict smokers and keep them addicted. A federal judge in 2006 required the tobacco industry to admit that the industry had lied to the public for decades about the health effects of smoking and the addictive power of nicotine.

The industry told those same lies to judges and juries, also for decades, with great success. The industry paid scientists to lend their name and reputation to scholarly articles, ghostwritten by the industry, that questioned the health effects of smoking and the addictive power of nicotine, and could use those articles in court to buttress their experts’ testimony.

Did Jones Day really not know the truth?

In my summers at the firm, the most senior partners were mostly conventional Republicans, whose politics aligned predictably with the interests of their clients. I was a pro-environment and pro-worker Democrat, and that was not a problem. (They may have thought I’d grow out of it.) And there were politically active Democrats at the firm. A Democratic partner in his forties supposedly had his eye on a congressional district in the suburbs, although he never made the race.

The author, from the Columbia Law School annual, circa 1978

Jones Day’s political involvement appeared to be part and parcel of the firm’s role in the community generally. Jack Reavis, the managing partner in the ’60s, was a pillar of Cleveland’s business establishment. Reavis established the Businessmen’s Interracial Committee on Community Affairs after riots in 1963 to ease racial tensions. He received the NAACP’s Human Rights Award in 1969 for his effort.

According to Kevyn Orr, the firm is still motivated by that same laudable devotion to public service. “We are proud,” Orr wrote in his op-ed, “that our lawyers have held senior positions in every presidential administration, Democratic and Republican, for decades.”

But in recent years, Jones Day has not grown political influence by political and civic involvement, or used its influence selflessly for the public good. Jones Day has hired lawyers who came with influence, and used their influence for clients’ benefit and the firm’s profits.

Jones Day saw a business opportunity in the 1980s to represent savings and loans. The Reagan administration largely deregulated S&Ls, which predictably resulted in questionable practices. Jones Day went on a hiring spree of S&L regulators to attract prospective clients.

Jones Day’s largest S&L client was Lincoln Savings and Loan. Lincoln aggressively sold bonds issued by its parent corporation to customers, “who tended to

be elderly and not very financially savvy.” The bonds offered a substantially higher interest rate than certificates of deposit. About 23,000 of Lincoln’s customers bought the bonds. The parent eventually defaulted on the bonds. Jones Day did the legal work. After the S&L regulator, the Federal Home Loan Bank Board (FHLBB), seized Lincoln in 1989, Jones Day paid federal regulators $51 million over its role. Federal regulators charged that the firm concealed improper practices; at the very least, the firm failed to blow the whistle.

Lincoln’s CEO Charles Keating served four and a half years in prison for fraud. Five senators known as the “Keating Five” pressured the FHLBB on Keating’s behalf to back off an investigation of Lincoln. Keating had made $1.3 million in contributions to the senators.

The head of enforcement for the FHLBB, Rosemary Stewart, testified before the Senate ethics committee that she had not felt political pressure to go easy on Lincoln, which contradicted the testimony of other FHLBB witnesses. Other FHLBB officials and lawmakers criticized Stewart for the slow response to the S&Ls’ losses.

Stewart quit the year after Lincoln failed and joined Jones Day’s Washington office. “This sort of thing happens all the time in Washington,” the firm’s managing partner said in response to critics. That’s still true: The list of lawyers with “government experience” on the firm’s website is 11 pages long.

Don McGahn joined Jones Day in 2014 to establish a political and election law practice to advise Republican candidates and officeholders and rightist organizations like the NRA . McGahn was a former Republican chair of the Federal Election Commission and a long-standing party apparatchik. The firm hoped McGahn could also strengthen the firm’s political influence.

In 2015, McGahn signed the Trump campaign as a client. Trump had been a client of McGahn’s late uncle, who had been a lawyer in Atlantic City. Trump eventually stiffed McGahn’s uncle for his fees and then sued him, the way Trump often ends relationships with lawyers. Still, Trump said he remembered McGahn’s uncle fondly. McGahn claimed implausibly that he and Trump were kindred spirits in their opposition to the Republican establishment.

After Trump’s unexpected election in 2016, McGahn became White House coun-

sel and was able to fill dozens of senior administration positions with Jones Day lawyers. Some Trump loyalists initially distrusted McGahn as “the embodiment of the corporate sleaze that oozed through the swampy capital.” The distrust grew with each hire. Trump had campaigned as a populist “who might really shake things up in Washington,” Enrich writes. “Thanks in large part to [McGahn] and his Jones Day crew, this presidency was shaping up to be just as corporatist as any other Republican administration. Maybe more so.”

Trump had a singular lack of interest in policy and the work of government. Most appointees had free rein; McGahn in particular wielded enormous power over judicial appointments, essentially hand-picking a big chunk of the federal judiciary.

Jones Day saw the Trump relationship as “a client development opportunity,” one lawyer told Enrich. The book describes one such example of the apparent value to clients of the firm’s connections: a U.S. attorney investigation into Walmart pharmacies for filling “preposterous numbers of opioid prescriptions.” Federal prosecutors in Plano, Texas, told Jones Day, Walmart’s counsel, to expect an indictment. But the DOJ in Washington, which was teeming with former Jones Day lawyers, said that there was insufficient evidence, and ordered an end to the criminal investigation. The DOJ ordered that civil litigation be delayed, which went on for years with little explanation. The lead Plano prosecutor resigned in protest, and publicly charged that DOJ’s political appointees improperly interfered.

Enrich’s argument that law changed from a profession to an industry in the ’80s is persuasive. Perhaps I was a naïve twentysomething in the ’70s, with a romanticized idea of the profession that I entered, but the change is palpable.

Enrich’s explanation of why law changed is less persuasive. He points to the Supreme Court decision in 1977 that struck down the ban on lawyer advertising and almost all other lawyer marketing, after which law firms aggressively courted new clients. Gossipy legal trade rags like The American Lawyer reported how much money lawyers at different firms made, which became how lawyers judged themselves and other lawyers.

Enrich is correct that lawyers became much more mercenary, but there were

more powerful forces at work than marketing and The American Lawyer. BigLaw’s clients changed and expected their lawyers to change too.

The ’70s were the end of the Great Compression, a period when wealth and income inequality closed significantly as a result of government policies—highly progressive taxation, union contracts, minimumwage laws, and tighter business regulation. Many corporate leaders accommodated themselves to those policy changes. Some corporations embraced “stakeholder management” that balanced the interests of shareholders, employees, customers, creditors, communities, and the public good.

But others never accepted the policies, and thought demands from the left for even more would never end unless they were challenged and defeated. The famous Powell Memo in 1971 rallied big business to the fight. Economists like Milton Friedman and corporate leaders like Jack Welch argued that the only proper purpose of corporations was the maximization of profits for shareholders. In 1982, conservative and libertarian law students formed the Federalist Society to challenge supposedly leftist influence in American law. McGahn, a member since law school, used the Federalist Society to vet his picks for judicial appointments.

Much of American business felt a renewed sense of entitlement to seek maximum profits without restraint or consequence. If a law firm said no when the corporation wanted

to hear yes, the corporation could easily find law firms that would say yes. Many oldschool law firms did not survive the change. In 1994, The New York Times reported that “in the last four years, more than a dozen firms, ranging from 30 to 250 lawyers, have folded, merged or been acquired to become the New York branches of giant firms with home offices in other cities.” As a partner in one firm said, “The coin of the realm ceased being loyalty, predictability and continuity, and became money, money and money.”

Enrich tells an important story of the gradual corruption of the rule of law, and of the broader corruption of our society. A nation in which victims of wrongs by the powerful must endure endless scorched-earth legal tactics to seek justice is a different nation from the one in which the victims of the East Ohio explosion and fire in 1944 received prompt and fair compensation. A nation in which wide swaths of law are unenforced because government lawyers see the corporations that violate the law as potential future clients is a different nation from one in which government lawyers vigorously enforce the law to protect ordinary Americans.

It is an unhappy and alienated nation that distrusts and disrespects public and private institutions alike. n

Brad Miller represented North Carolina in the U.S. House of Representatives from 2003 to 2013. He graduated from Columbia Law School in 1979. He practiced law before his service in Congress and has since.

Former White House counsel Don McGahn, who brought together Jones Day and Trump

Raised Voices, Raised Fists

Black

By Ramenda Cyrus

In 1949, Paul Robeson flew to France and, in a fury that came from the bowels of systemic oppression that only a Black man in segregated America could understand, made a speech at the World Peace Conference. “Why should the Negroes ever fight against the only nations of the world where racial discrimination is prohibited and where the people can live freely? Never!” he declared. “I can assure you, they will never fight against either the Soviet Union or the peoples’ democracies.”

The media and American public were quick to condemn Robeson for such an unAmerican statement. Speculation grew that he was secretly a Communist, because there was no way an oppressed man from America would dare speak against America.

Not if he cared for himself or his country. Not if he was a good Negro.

The response had the potential to make waves across the Black community. And here is where Jackie Robinson enters the picture.

Robinson, who two years before became the first Black player in Major League Baseball and a hero to practically every Black American, was marched in front of the House Un-American Activities Committee (HUAC) and all but made to denounce Robeson’s statements.

But Robinson did not just denounce Robeson’s comments, he made other comments that got little to no attention.

“The fact that it is a Communist who denounces injustice in the courts, police brutality, and lynching when it happens doesn’t change the truth of his charges,” Robinson testified. “Negroes were stirred up long before there was a Communist Party, and they’ll stay stirred up long after the party has disappeared—unless Jim Crow has disappeared by then as well.”

This saga was the beginning of the end of Robeson’s career; his income subsequently fell by 94 percent. It was also, as Howard Bryant writes in the 2018 book The Heritage: Black Athletes, a Divided America, and

the Politics of Patriotism , an early episode in the struggle Black athletes have faced to come out of oppression and find their voice in the American conversation.

Our cultural attitudes toward fame are senseless: We love building up heroes as

much as we love knocking them down. But Black athletes in particular have their bodies, their talent, and their morals challenged on a level few others can relate to. Society reveres them for their physical ability, while disparaging them for daring to think on their own or, even worse, disrupt the status

athletes are uplifted for their talent but denigrated for speaking out. Still some are compelled to bear that burden.

Sports

Colin Kaepernick’s protest against police brutality ended his football career.

quo. They labor for America’s entertainment and are loved less—not more—for it.

This creates a vicious cycle where Black athletes are uplifted for their talent and denigrated for speaking out against the injustices they or their people face. Many never have a choice but to engage in this familiar dance of public commentary and backlash. They pass this struggle down to younger athletes by setting the stage and sometimes mentoring them: hence Bryant’s use of the term “heritage.”

The most famous Black athletes are often famous because they engaged with the heritage. Muhammad Ali was not just an amazing heavyweight boxer, he was the man who railed against the Vietnam War and refused service. Tommie Smith was not just an Olympic gold medalist in the 200-meter dash, but the man who threw his fist in the air with a “Black Power”

salute at the 1968 Olympics in Mexico City, shocking the world.

But the heritage is not the same as it was. It was born out of a limited pool of Black talent that powerful entities—media, government, industry heads—could manipulate and abuse. It grew out of the remarkably heightened racial tension of the ’40s and ’50s American society, and a fledgling sports industry. Speaking out became, as Bryant put it, an “expectation [that] soon grew into a responsibility.”

While Black athletes continue to break color barriers, some simply rise to the top of their sports over dozens of other talented people of color. And not everyone feels the need to speak out, choosing instead to protect their image and earning potential.

Michael Jordan famously chose this path in 1990 when, instead of getting involved in a contentious North Carolina Senate race,

he simply said, “Republicans buy sneakers too.” Despite the race being between a Black person and a notorious racist in his home state, Jordan had no strong words. In 2020’s documentary series The Last Dance, Jordan said it was just a joke, but conceded, “I never thought of myself as an activist. I thought of myself as a basketball player.” He had seen what happened when the lines were blurred.

Even stars who have made it their career to play and to speak out, like LeBron James, pick their causes carefully in today’s digital and increasingly capitalistic world. When an NBA executive named Daryl Morey was criticized by the league for expressing solidarity with oppressed citizens in Hong Kong, James joined in, stating the executive wasn’t “educated on the situation at hand.” It was an ironic statement given the incredible abuse of human rights in Hong Kong at the hands of China, but par for the

Serena Williams was mum about the racism she continually faced, but she used her voice in other ways.

course considering the massive amounts of money the NBA makes in China.

However, racism and oppression never sleep. Whether they are the lone Black athlete challenging barriers, or one of many, they still have a perceived obligation to use their voice. How they choose to do so is entirely up to them, and that’s the power of the heritage.

Colin Kaepernick’s protest against police brutality made waves across the sports industry and the media. The simple action of kneeling during the national anthem sent pundits and social media into a frenzy, ultimately costing Kaepernick his NFL career.

The response to his protest is one of the quintessential elements of the heritage—the backlash that leads to devastating repercussions. After his protest at the 1968 Olympics, Tommie Smith never raced again. John Carlos, the bronze-medal winner who made the salute with Smith, fell into a life of poverty.

But despite the sector of the population that wanted Kaepernick to “shut up and play,” a similarly large sector of people understood his message. Police brutality has hung heavily over the lives of people of color since the inception of the police, especially amid the high-profile murders of Black people in recent years, and it deserved to be called out on the national stage.

Kaepernick did more than just kneel. He engaged with the community, raising $1 million for social causes and hosting workshops in the Bay Area. He inspired more athletes to join his protest, from NBA players to the U.S. women’s national team.

This story was the subject of a Netflix series, Colin in Black & White, as well as an upcoming Spike Lee documentary. And by all accounts, Kaepernick is doing pretty well. He started his own publishing house, Kaepernick Publishing, which recently published an autobiography by Mahmoud Abdul-Rauf, another Black athlete who protested the anthem. His advertising deal

with Nike made the company $6 billion in market value.

Kaepernick also joined forces with a private equity investor to buy a specialized minority-lending bank, The Change Co. He refused to advertise the deal widely, and it fell apart. This signals that the optics may have looked bad even to Kaepernick. He’s run into the classic stalemate, where the pursuit of capitalism often comes at the expense of core beliefs. In many ways, you can’t be a capitalist and an activist.

Kaepernick’s not in the NFL anymore, but he solidified the foundation for his fellow football players, and athletes more widely, to speak up and make waves. Maybe they never will, but at least the option, the legacy, is there.

When Sha’Carri Richardson burst onto the scene in 2021, she was impossible to miss. From her long colored hair and acrylic nails, to the way she dominated the 100meter sprint, Richardson was immediately regarded as a force to be reckoned with.

This power and talent did not protect her from the treatment all Black athletes face. It never does. Richardson had raw emotion on and off the racetrack, such as when she qualified for the Olympics and immediately ran up to embrace the grandmother who raised her. She grins with delight as she speeds past her opponents; she declares that she is “THAT girl.”

But the confidence of a young Black woman is never received well. The world always makes it a point to beat them down. When Richardson failed to qualify for the 100-meter final at the USA Track and Field Outdoor Championships in June, social media was ablaze, mocking her for overconfidence and reveling in her defeat.

Richardson stood up for herself: “Y’all should understand whether they’re coming from winning, whether they’re losing, whatever the case may be. Athletes deserve way more respect than when y’all just come and throw cameras into their faces,” she said. “Be more understanding of the fact that they are still human, no matter just to the fact that y’all are just trying to get something to put out in an article to make a dollar. Thank you.”

The outcry was even worse when Richardson was disqualified from the Tokyo Olympics in 2021 for failing a drug test, coming up positive for THC, the psychoactive substance in marijuana. Again, Richardson stood up for herself, first with a simple tweet: “I am human.”

She made her voice known again by call-

ing out the IOC’s double standard in February, when figure skater Kamila Valieva was allowed to compete despite testing positive for another banned substance. “The only difference I see is I’m a Black young lady.”

Richardson has consistently refused to be silent, just like those before her.

Serena Williams’s story is slightly different from the others. Williams was historically mum about the racism she faced throughout her professional tennis career, but she used her voice in other ways to defend herself and her talent.

Williams did not really have to say anything about the racism she faced. It was often so obvious, dozens of people would jump to defend her. The infamous Australian comic, where she was depicted as a petulant child in minstrel-esque fashion after a loss to Naomi Osaka, is just one example. The backlash against that comic was so swift that the Australian Press Council had to actively defend the artist, declaring it “non-racist .”

Still, Williams said nothing, instead preserving her energy and her voice for when it mattered to her.

When Williams decided to retire this year, she decided to control the narrative and prevent anyone from making the decision for her. In a Vogue cover story, she wrote on the impossible decision between motherhood and career and the emotion she was often vilified for.

She wrote on her love for the sport, and her desire to be more: “I’d like it to be: Serena is this and she’s that and she was a great tennis player and she won those slams,” she wrote. “I’m going to miss that version of me, that girl who played tennis.”

Simone Biles withdrew from the Olympic gymnastics team competition in 2021, stating a need to work on her mental health. Naomi Osaka did the same that year, withdrawing from the French Open. Their actions revealed another plight for the Black athlete: In a country with staggering mental health issues, some will still vilify them for prioritizing themselves.

Whether an athlete speaks up about pertinent social causes or about the personal oppression they face, the world demands their silence. But attached to these powerful Black bodies that the world watches in awe is a voice, a voice that many have used and that countless are sure to use later. It is in the genes, in the legacy, in the heritage. n

Black athletes are uplifted for their talent and denigrated for speaking out against the injustices they or their people face.

Cyborgs on the Highways

By Zephyr Teachout

Data Driven: Truckers, Technology, and the New Workplace Surveillance

By Karen Levy Princeton University Press

I have a particular fondness for long-haul truckers.

My broken-down car in Newfoundland in the early ’90s led to the accidental discovery of the world of ride-alongs. A network of truckers drove me 1,400 miles from St. John’s to Boston. The drivers and I swapped stories to take the edge off the loneliness; in return, each one took me as far as they could. When their route diverged from my destination, they would radio around to find someone trustworthy who was going my way, or drop me off at a truck stop where, over coffee, a waitress would steer me toward responsible drivers.

I listened as the drivers traded tips and frustrations with others on the highway. I joined the drivers for endless truck stop meals, as they kept their hours within the federally mandated daily limit. I slept in bunks in the back of the cab.

In subsequent years, I returned occasionally to riding along—including a memorable trip from North Carolina to Wisconsin one frozen February—and on these trips

of how new rules and AI are transforming modern long-haul trucking, and how almost everyone who talks about the future of robots and work is getting it wrong.

In Levy’s book, we find the once-autonomous cowboys of the highway strapped to monitors and monitoring vests, scanned with intelligent cameras, and tracked while they drive, forced to ride along with silent spies instead of hitchhiking kids like me. Truckers already have compressed joints and lower-back pain while carting food, medicine, and other goods around the country. Now, having taken on high-stress conditions, their heart rate and health are treated with microscopes and suspicion. Their pay, which collapsed after deregulation in the 1980s, is buried at the bottom of the American median. Turnover rates approach 100 percent annually.

Is it any wonder that truckers are angry and despairing?

were evading the “hours of service” rules that limited how long they could drive. According to the rules, a driver should take ten hours off between shifts, work no more than 60 hours in any seven-day period, and fit all their 14 hours of work time in a consecutive slot. For example, if you start driving at 7:00 a.m., you can drive up to 11 hours for the day, but none of those driving hours can come after 9:00 p.m., or that would violate the 14-hour rule.

Hours-of-service rules are designed to keep weary drivers off the road, by limiting consecutive hours, total hours worked in one day, and total hours worked over a week-long period. (The rules were a little different when I was riding along, but the procedure was the same; drivers would log their hours on paper.) However, DOT became concerned that drivers were fudging the numbers. So the federal solution was to mandate a digital ride-along to stop the evasion. Starting in 2017, DOT required that all trucks be equipped with electronic logging devices (ELDs). The paper logs were tossed out the window, along with an enormous amount of discretion.

Levy, who had already spent years interviewing drivers at truck stops, chronicled the regulatory change as a natural experiment that reveals what happens to an industry when the government starts requiring a particular surveillance device.

It was more transformational than you might think. What started as federal safety regulation quickly became an entry point for general corporate regulation.

Books

I learned about loneliness, dogs, truck decoration, and different approaches to stimulants. I gained an appreciation for the difficulty of the job and the thoughtfulness and quirkiness of so many drivers.

So when I heard about Cornell information science and law professor Karen Levy’s new book on long-haul trucking, I raced to get a copy.

Data Driven: Truckers, Technology, and the New Workplace Surveillance does not disappoint. It is an exceptional exploration

Long-haul trucking is a brilliant topic, because it sits at the intersection of many different economic and social trends. Truckers’ workplace doubles as their home for several days a month, like a growing number of white-collar workers. Like Uber drivers and other gig workers, they are not paid for the time they prepare for and wait for work. And drivers are becoming among the most intimately monitored workers in America, with physical surveillance that echoes that of Amazon workers.

But there’s more: In trucking, a hidden driver of modern surveillance may in fact be government. As we learn in Data Driven , it isn’t always so clear-cut where government surveillance ends and where corporate surveillance begins.

In 2017, the U.S. Department of Transportation (DOT) decided to do something about terrible accidents in long-haul trucking. The problem, as DOT saw it, was that drivers

The ELD s changed hours-of-service enforcement from manual to digital, which also changed the management of drivers from after-the-fact to real-time. Every moment spent idling is a blinking red data point at headquarters now. Drivers get pinged by their superiors when a truck stop break goes longer than expected. When a driver is tired, or encounters bad weather, they no longer feel free to make a decision to sleep or take a break, because the tracking technology signals to headquarters that the truck is idle. (Levy shares a chilling exchange where headquarters barrages a sleeping driver who insists there is a storm with its own weather analysis.) Almost a third of drivers surveyed reported being woken up with instructions to drive, and two-thirds said they were told to drive longer.

ELD s also created a new structure of ongoing data collection, which positions employers to be able to more precisely set,

A new book details the extreme forms of surveillance imposed on long-haul truckers, robbing them of their power.

change, and withhold wages. They use the data to push for competition between drivers, shame drivers who are less productive, and discipline them. (It isn’t clear how much this has led to more personalized wages, but the technology certainly enables it.)

Finally, the ELD s acted as a kind of gateway drug for micromanagement, and have been followed by an array of devices attached to practically every part of the human body to “augment,” regulate, and control the bodies doing the work at the most minute level. It’s a culture of both surveillance and AI/human intertwining. One company has a prototype for a vest that will stop the truck if it senses bodily fatigue. Trucking tools already in circulation include a “SmartCap” that monitors brain waves for weariness. Robotic devices, Levy argues, operate as a boss peeking

over your shoulder at all times. As Levy writes, “AI in trucking today doesn’t kick you out of the cab; it texts your boss and your wife, flashes lights in your eyes, and gooses your backside.”

Safety was the ostensible purpose, but the “cyborg” world Levy discovers is not safer. After the ELD rollout, trucking safety stayed the same or declined: There were even more crashes in some parts of the industry. Levy argues that the micromanagement is not just neutral, but dangerous, because it removes the discretion of skilled drivers. Experienced drivers are quitting. Meanwhile, surveillance is a known driver of stress and cortisol levels, which decreases motor skill sensitivity. The loss of autonomy drives depression, burnout, and quitting, increasing the danger posed by the unskilled replacements.

It’s hard to turn off a camera once you know you can use it to reward and punish, whether it is to spy on babysitters, nurses, or in this case, truckers. Corporate bosses will use the threat of a small car getting crushed by tons of metal to argue that privacy precautions seem secondary. Surveillance justified by safety has an accelerating logic to it, where the gaps in knowledge that used to seem just human and normal suddenly appear as vast, dangerous lacunae. Inasmuch as the goals of safety keep failing, the logic of the arrangement will tend toward invasiveness, instead of a reconsideration of the value of spying.

What we’ve learned from the ELD experiment is very important for policy: Surveillance just doesn’t work that well as a safety tool. Yes, it gives the company more information. But as the saying goes, you can’t fat-

Long-haul truckers are monitored, scanned, and tracked, forced to ride along with silent spies.

ten a cow by weighing it; you can’t improve safety by forcing drivers to have their rest stops recorded.

As Levy shows, the problem of economic incentives can’t be solved by surveillance. The two million long-haul truckers in this country are paid per mile, which creates an embedded incentive to overwork. To add insult to injury, they are not paid when they are waiting to unload or looking for parking. Drivers lose as much as $1.3 billion in earnings each year just while waiting for an unloading dock to open up. Spending what can be hours without pay creates more incentive for drivers to make up that time by speeding.

If we really want fewer crashes, we have to pay drivers better. “The problem’s roots are economic,” Levy argues, but the “solution on which hopes have been pinned is not economic, but technological. Rather than change the underlying conditions that give rise to lawbreaking, regulators and companies have tried to make it more difficult for truckers to falsify their time records.”

If you haven’t figured it out already, the book is about far more than truckers. Levy,

by taking it from public debates to reality, explodes the false image of automation that is embedded in so much of both tech utopianism and dystopianism.

For the tech utopians, robots will take over the hard human tasks and release workers from backbreaking work; for tech dystopians, robots will take away essential human jobs, destroying the middle class and worker power. What Levy points us to instead, holding up truckers as the live experiment, is “human/machine hybridization.” She reveals that there is no clear line between AI replacing humans and humans reaping the benefits of new technologies.

I was at a conference recently where a panelist gave a fascinating presentation on seed-sorting, where AI aided humans who were sorting different seeds in an agricultural operation. Left unsaid, but implicit in the presentation, was the notion that augmented tasks empower the human. That is likely true in many cases: The augmentation of having a tool expands, instead of diminishes, the human wielding that tool. But sometimes, the augmentation may look a

lot more like the “augmented” truck driver, who is scolded and watched, and driven to sky-high cortisol levels.

The modern neo-Brandeisian revolution, led by Tim Wu, Barry Lynn, Lina Khan, and others, is often understood as being largely about antitrust and anti-monopoly. But it is also a reality revolution, an insistence on exploring the world as it is, as opposed to how it is modeled.

It is founded, in part, on the recognition that economics as currently constructed cannot make sense of power, and that law has become too infected by the abstractions of economics. In our world of AI and digital spying, surveillance reaches new workplaces, unearths new data, and brings new forms of analysis; it creates new forms of power.

Louis Brandeis did not just insist on the dangers of centralized power; he insisted on the facts on the ground. In the 1908 case Muller v. Oregon , where a laundry owner challenged a state law that restricted work hours for women, Brandeis presented his famous “Brandeis brief” to the Supreme Court. It included 110 pages of testimony about the experience of brutally overworked women, and just two pages of law.

Part of what makes Levy’s book so refreshing—and important—is that the methodology is decidedly not that of an economist. Levy has a dual appointment at Cornell, both in the law school and as an associate professor of information science, and she is also trained as a sociologist. The triple vision lights up her writing. She asks questions, and uncovers stories that only come from listening, watching, and learning, from testimonies and history, to tell a story about brutally overworked men, who are rewarded for their labor by being treated like suspects. n

Zephyr Teachout is a law professor at Fordham University and author of Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United and Break ’Em Up: Recovering Our Freedom From Big Ag, Big Tech, and Big Money.

Levy explodes the false image of automation that is embedded in so much of both tech utopianism and dystopianism.

The threat of traffic accidents is being used to justify invasions of trucker privacy.

Nonviolence From a Military Angle

In what is often called the “classical” or “heroic” civil rights movement, racial justice advocates were nourished and led by an array of organizations, including the National Association for the Advancement of Colored People (NAACP), the NAACP Legal Defense Fund (LDF), the Congress of Racial Equality (CORE), the Southern Christian Leadership Conference (SCLC), the Student Nonviolent Coordinating Committee (SNCC), and many kindred organizations.

For readers looking for an introduction to this subject, Thomas E. Ricks’s Waging a Good War offers a synthesis derived from close readings of leading academic texts. With a keen eye for evocative detail and memorable quotation, Ricks condenses detailed studies into succinct and vivid chronicles that he strings together into an accessible narrative. But he does not succeed in his larger ambitions to use military history and strategy to provide new insights into the struggle.

Ricks begins with the Montgomery bus boycott. In that stirring episode, the Black community of Montgomery, Alabama, surprises itself, the South, and the nation by decisively rejecting a continued accommodation to Jim Crow seating aboard city buses. The immediate trigger for the conflict was the arrest of a Black seamstress, Rosa Parks, who defied the order of a bus driver to relinquish her seat to a white man pursuant to the dictates of white supremacist etiquette. In response, Black Montgomery boycotted the buses for 381 days, created an alternative governing structure for itself, and also sued city and state authorities, winning a judgment at the Supreme Court that extended Brown v. Board of Education ’s invalidation of segregation from schooling to transportation. This episode also pushed to the fore an extraordinary 26-year-old minister named Martin Luther King Jr., who served as the principal guide and spokesman for the protest.

By Randall Kennedy

Waging a Good War: A Military History of the Civil Rights Movement, 1954–1968

By Thomas E. Ricks Farrar, Straus and Giroux

In the middle of the 20th century, between approximately 1950 and 1970, Black Americans and assorted allies attacked racial

oppression along a variety of fronts. Racial dissidents prompted the military to abandon racial exclusion, nudged courts to invalidate the constitutionality of racial segregation, moved governments at the municipal, state, and federal levels to outlaw racial discrimination in markets for public accommodation, employment, and housing, and pushed the federal government to remove obvious racial barriers to Blacks seeking voter registration.

Books

With sympathy and verve, Ricks also describes other episodes in which racial dissidents broadened the boundaries of racial fairness. He takes readers to Nashville, Tennessee, where activists honed tactics of nonviolent disruption; to Birmingham, Alabama, where activists put children on the front lines of struggles against pigmentocracy; to towns in Mississippi where young whites from outside the South joined Southern Blacks to challenge maniacal racial protocols; to Selma, Ala-

A new history of the civil rights movement gets a lot right but falls short in trying to reframe the story.

Rick’s book begins with the Montgomery bus boycott.

CULTURE

bama, where protesters armed only with unrelenting faith and a determination to vote took on brutal state troopers; to Chicago, where the tactics of the Southern civil rights movement were shown to be unsuited for conflict in a Northern metropolis; and to Memphis, Tennessee, where King was assassinated while supporting a strike by garbagemen.

A commendable feature of Waging a Good War is Ricks’s level-headed assessment of the tactics of both those who insisted upon nonviolence and those who, in the latter part of the 1960s, increasingly indulged in violent rhetoric and posturing. He rightly stresses the tough-mindedness and heroism of the former. A misperception held by some on the left is that King and other rigorous advocates of nonviolent resistance were naïve. To the contrary, they were keenly realistic. They understood that the white supremacists they faced would welcome and prevail in any violent confrontation. So prudent dissidents stayed away from the terrain where their adversaries were strongest—the ground of unreasoning force—and instead positioned themselves where the white supremacists were weakest—the ground of open appeal to noble national aspirations such as liberty and justice for all. There was nothing wimpy, complacent, or cowardly about pacifistic protesters such as King and John Lewis who practiced what Ricks terms “aggressive nonviolence” as they battled white supremacism in the shadow of governments that were themselves conspicuously devoted to illicit racial hierarchies.

Other dissidents indulged in rhetoric and conduct that valorized reaching for the gun to deter or punish racially motivated anti-Black violence. Their vocabulary included “off the pigs,” “up against the wall, motherfucker,” and “by any means necessary.” Their leaders included Malcolm X, Stokely Carmichael, and the now-legendary founders of the Black Panther Party, Huey Newton and Bobby Seale. These figures are, in some quarters, the exemplary heroes of the drama. In contrast, in Ricks’s account, they are rightly portrayed as significantly less realistic and effective than their nonviolent rivals. The performative militancy of the Black Panther Party, for example, generated a momentary thrill. But its life span was tragically brief, foreshortened by three related developments: ferocious repression, internal dissension, and narcis-

largely ignores the campaign to desegregate the armed forces, which led to multiracial military bases.

sistic macho posturing. If you declare, as did the Panthers, that your goal is “the total destruction of the racist decadent imperialist American society,” you had better be prepared for surveillance and subversion on the part of those dedicated to the preservation of the threatened old order. The Panthers were not prepared, a sign of dangerous, misguided bravado.

Ricks hopes to provide a different and illuminating “angle” on the civil rights movement by analogizing it to a military enterprise. It is understandable why this might have seemed to be a promising strategy. The rhetoric of the Black freedom struggle and commentary about it is full of references to “battles,” “skirmishes,” and “campaigns.” Ricks, moreover, has written several books about military conflicts. It

made sense to think that the trained eye of a military correspondent would unearth overlooked facets of fights for racial justice in the 1950s and 1960s. The movement, Ricks maintains, “can be better understood if it is viewed in military terms, especially those of strategy and tactics.” Perhaps. But in few if any instances did I derive new insight from Ricks’s military prism. His good book would be no less good if all of his references to generals, battles, tacticians, and military lingo vanished.

Ricks’s dragooning of military analogies is all too desultory, ad hoc, and fragmentary. Spying is often an important feature of warfare. The Black freedom struggle was beset by spies. Hundreds attended planning sessions, marches, speeches, and rallies and then reported back to agencies such

Ricks

as the Mississippi Sovereignty Commission or the Federal Bureau of Investigation. One of the leading civil rights movement photographers, Ernest Withers, was an FBI informant. (See Marc Perrusquia’s A Spy in Canaan: How the FBI Used a Famous Photographer to Infiltrate the Civil Rights Movement.) So, too, was Jim Harrison, a key accountant for the SCLC. (See David J. Garrow, The FBI and Martin Luther King, Jr.) Yet Ricks offers little that sheds light on the extent of such betrayal or its consequences. He briefly mentions that chiefs of security in local branches of the Black Panther Party in Chicago, Detroit, and Los Angeles were FBI informants, but otherwise leaves that striking fact unelaborated.

While Ricks almost invariably analogizes the civil rights movement to military operations, he might usefully have considered disanalogies. Armies have a structure in which commanders can coerce subordinates. The soldier who defies orders or betrays his side can be lawfully punished, even killed. Social movements, in contrast, typically rely upon inspiration and peer pressure to keep followers in line.

Ricks’s interpretation of the civil rights movement is deficient in another way reflective of a lapse in much of the recent literature on the Second Reconstruction. He largely ignores the campaign to desegregate the armed forces, an effort that led to multiracial education, housing, and recreation on military bases way in advance of civilian facilities in many locales. While white supremacists in many parts of South Carolina were pulling out the stops to entrench racial segregation, military commanders at Fort Jackson were abandoning Jim Crow. Why and how segregation was overthrown in the armed forces without legislation or judicial intervention is a neglected subject that surely ought to be focused upon in an analysis of the civil rights movement written from a military perspective.

At the end of Waging a Good War, Ricks maintains that “a polarized America has developed three distinct accounts of the classical [Civil Rights ] Movement, as seen by the mainstream right, center-liberals, and the left.” The right says that “the Movement achieved reforms that were in retrospect necessary and went far enough.” The center-left says that “we must do more than the movement did, but believes we can do so by working to deepen America’s foundational commitments and to expand existing institutions.” The left says “that there has been almost no real progress since the 1960s because America is a white supremacist country through and through, with a race structure reinforced by grinding capitalism.”

Alas, Ricks declines to indicate clearly which of these views he finds most persuasive and, perhaps, more important, how one might best assess these contending positions. I suspect that he embraces the centerliberal perspective, though his description of that position lacks specificity regarding what the movement accomplished. What he ought to have concluded is that the rightwing take on the civil rights movement is excessively triumphalist. It does not appreciate the limitations of the movement’s triumphs, much less its defeats, much less retrogression at the hands of conservatives.

Any judgment of the civil rights movement must consider, for example, that the most innovative and effective single legislative reform of the Second Reconstruction, the preclearance provision of the Voting Rights Act, has been recently disabled by the Supreme Court in Shelby County v. Holder (2013), with no prospects in sight for congressional restoration. Ricks should also have concluded that the perspective he posits as the view of the left is fatuous (though it must be added that many on the left would reject the version of leftist history that Ricks proposes). “No real progress”? The invalidation of segregation. The prohibition of most significant forms of private racial discrimination. The righteous assault on racial disfranchisement. The change in the social, cultural, and political environment such that an African American could become president (Barack Obama), vice president (Kamala Harris), secretary of state (Condoleezza Rice), secretary of defense (Lloyd Austin), chair of the Joint Chiefs of Staff (Colin Powell), etc.

The current situation in the United States

is frightening and deplorable, which includes ongoing racial wrongs. A strong grip on history is thus especially needed now. Any realistic understanding of the American past entails appreciating how far down African Americans had been submerged and how much ground they regained through the Black freedom struggle. In assessing the civil rights movement, it is useful to ask: compared to what? Does American history, indeed world history, disclose an analogous episode in which a formerly enslaved, persistently stigmatized racial minority group accomplished more absent massive bloodletting than did African Americans between, say, 1950 and 1970? There is good reason to see the mid-20th-century struggle against racial injustice in the United States as an inspiring episode. n

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While Ricks almost invariably analogizes the civil rights movement to military operations, he might usefully have considered disanalogies.

PARTINGSHOT

Let Twitter Die

Twitter Is Dead, Long Live Twitter

By Francesca Fiorentini

So it happened. We thought maybe that cringey SNL appearance would have satiated his “anti-woke” crusade, but we were wrong. Elon Musk, the richest man in the world, took an amount of money that could put a big dent in world hunger, or the housing crisis, to buy … Twitter.

In some ways it’s fitting that Musk paid far too much to own the saddest social media platform. Twitter is, after all, what traumatized nobodies who refuse to go to therapy treat as both their best friend that can’t keep a secret, and the kind of running conversation you would find on a bathroom stall door. It’s a blanket fort with a one-way mirror for all to gawk. And Elon, the most fragile and petty of our billionaires, fits right in with its tantrums and hysterics. He is living proof that money cannot buy happiness, even if it can buy you hair.

Now Musk has to make Twitter profitable, and he’ll probably make it to Mars first. He is lodged in the bowels of the most public financial blunder since Kanye decided his hill to die on was antisemitism. And the boss man is being epically dunked on, right there on his own platform, for such absurdities as banning anyone who impersonates him, while advocating for free speech. Or firing half his workforce only to rehire some of them because he needs their help. Or trying to charge $8 a month for a blue check mark. It’s a pretty cathartic way for a billionaire vanity project to end.

But this isn’t a rant about Elon. It’s about

us. What’s to become of us Twitter users? Us traumatized nobodies with our thirsty unanswered DMs? Many users are still in the second stage of grief: anger, and memes. But we’ve got to move to acceptance.

Twitter had a good run, but this season is now being crafted by the writing staff of Season 8 of Game of Thrones. Bran the Broken has now become king and it’s time for us to move on. Sure, Musk may offload his new purchase as swiftly as he acquired it, like a lonely person who shortsightedly adopted a barky Chihuahua during the pandemic. But where do we go?

Do we forgive Zuckerberg for selling our information to Big Brother election meddlers in 2016 and rejoin Facebook? That would mean having to keep up with the homecoming king turned QAnon conspiracist, and more terrifyingly, our parents. Are we ready for that?

What about Instagram, which we never boycotted along with Facebook, did we? We just convinced ourselves that there was some sort of separation between church and state at Meta, and kept feeding the algorithm with the endless scrolling to quench our bottomless FOMO.

What if this is all a long con from China to get us onto TikTok? Oh, TikTok. A place where self-confident Gen Zers in mom jeans do choreographed dances about embracing their neurodivergence. Where life is nothing but hacks, how-tos, and the #GrindsetMindset. Where baby-faced millionaire influencers are minted overnight, ready to sell you both Little Caesars pizza and gut-

reducing smoothies … but DON ’ T MENTION PALESTINE!!! Or any cuss words, the words “sex,” “hole,” “dead,” or “XiJinPing is Zaddy 4 Life.” Otherwise it really is a great place and one day I hope to figure out how to use it.

But what if we didn’t rush to find a social media replacement? What if we used this opportunity to … grow? Instead of taking our unfiltered thoughts to Twitter, we can start journaling. Sure, it’s not as thrilling as risking getting fired for speaking our truth about Olivia Wilde and Harry Styles, but we could always leave our diary on a bus and hope it scandalizes someone on their way to work.

Chances are you probably have a family. Family is like Twitter friends, only they’re right there in front of you, gazing at your screen-filled eyes in the hopes that you might look up. What about giving them your Twitter time? Also, when was the last time you looked at yourself naked? Have you invested more in the virtual space and forgotten about the physical space your ass is taking up on the couch? When’s the last time you touched grass? I mean truly got down there and felt the blades in between your toes and remembered that you exist, even without sharing an opinion about everything.

If getting outside, expressing your thoughts in private, or spending time with your family doesn’t cut it, then do what Elon should’ve done years ago: Go to therapy, you sad hot-take monger. There will be life after Twitter, just give it time. There’s a whole world out there.

And don’t forget to follow me on IG and TikTok @franifio. n

Voting for democracy and a better life

By Randi Weingarten, President AMERICAN FEDERATION OF TEACHERS

In the leadup to the midterm elections, pundits predicted a red wave, even a tsunami, based on polls, historical precedent, and steep gas and grocery prices. But I had my doubts. I spent the weeks before the elections talking to voters and traveling on the AFT Votes bus, rolling through a dozen states with more than 50 stops. In a year when kitchen table issues, democracy and our freedoms were on the ballot, many people told me that the elections came down to a choice between, on the one side, election deniers and extremists stoking fear, and on the other, problem-solvers working to help the country move forward. Many races were close, but Americans turned the tide from a red wave to a swell of support for progress and problem-solvers.

The same was true when it came to education. In a year when extremists sought to wage culture wars in our schools, rather than focus on the supports young people need to recover and thrive, election results showed a deep well of support for the promise and potential of public education and the investments parents want to help their kids. Voters in California, Massachusetts, New Mexico and even Florida passed ballot measures and funding boosts for public schools.

Young people in particular turned out in historic numbers to vote for their future. They supported candidates committed to combating the climate crisis, reducing gun violence, protecting reproductive and LGBTQIA+ rights, and fighting for shared prosperity and student debt relief.

In Florida, 25-year-old Maxwell Alejandro Frost ran on these issues and became the first Generation Z member elected to Congress.

The battle for control of Congress consumed a hefty share of Americans’ attention. But gubernatorial races carried especially high stakes this year given candidates’ diverging stances on issues ranging from education to crime to abortion access to the integrity of future elections in those states. Democrats, with their support for public education, economic security and democracy, had their best midterms for governors since 1986.

In Michigan, Gov. Gretchen Whitmer made the largest investment in K-12 education in state history and closed the school funding gap. She expanded low- and no-cost child care for families. She helped create nearly 25,000 automotive jobs, championed reproductive freedom, and is delivering on her promise to “fix the damn roads,” with bonds for

roads and funding to repair 100 bridges. Oh, and she evaded a kidnapping plot. Meanwhile, Whitmer’s opponent, Tudor Dixon, with endorsements from Donald Trump, Betsy DeVos and the National Rifle Association, ran on a platform of culture wars, school vouchers and opposition to abortion. Michigan voters responded by favoring a Democratic trifecta—the governorship and the state House and Senate.

In Wisconsin, Gov. Tony Evers, a longtime educator, made historic investments in Wisconsin’s longunderfunded public schools and increased funding for special education and higher education. He worked to lower the cost of prescription drugs for Wisconsinites. And he vetoed GOP bills to expand concealed-carry rights and championed efforts to repeal Wisconsin’s 1849 law criminalizing abortion. Evers’ opponent, Trump-endorsed Tim Michels, called increasing school funding the “definition of insanity” and opposed red flag gun laws and reproductive freedom. Evers won

In New York, Gov. Kathy Hochul made record investments in healthcare, education, infrastructure and the environment. She won $100 million to help schools deal with pandemic fallout, including mental health services. She signed nation-leading pro-choice legislation and funded communitybased gun violence intervention programs. Her opponent, NRA- and Trump-endorsed Lee Zeldin, pledged to restrict how race is taught in schools

and supported education vouchers. In Congress, Zeldin voted to defund Planned Parenthood and against the assault weapons ban. Hochul won

In Arizona, Katie Hobbs, a former social worker serving as Arizona’s secretary of state, focused on ensuring reproductive rights, preserving democracy, supporting public education (including more school counselors) and commonsense gun safety. Opponent Kari Lake, a Trump-endorsed election denier, favored school vouchers, opposed social and emotional learning, and rejected any restrictions on gun ownership. Hobbs won

Voters made similar choices for governor in Colorado, Kansas, Maine, Maryland, Massachusetts, New Mexico, Oregon and Pennsylvania.

Americans rejected extremism and supported uniters

and problem-solvers.

And while extremists’ calling card this year has been to attack—whether it’s immigrants or transgender kids or teaching honest history—Congress is on the cusp of passing a bipartisan bill to respect and protect marriage, including interracial and same-sex marriage.

Our country remains deeply divided, and the high cost of living is still a top concern. But Americans defied historical midterm expectations and overwhelmingly rejected extremism; they supported uniters and problem-solvers, and they voted to protect their freedoms and democracy. Many challenges remain, but Americans are united by a powerful bond: We all want a better life for ourselves and our families.

Follow AFT President Randi Weingarten: twitter.com/RWeingarten

Weingarten in Detroit on Oct. 29, on the AFT Votes bus tour.

Photo: Alex Palombo

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From Thomas Hobbes to Karl Marx, from Reconstruction to the January 6th putsch, each week Ryan, Alexi, and their fascinating guests offer fresh takes…