The American Prospect #335

DAVID DAYEN: SEXUAL ASSAULT AT AFLAC LUKE GOLDSTEIN: U.S. vs. GOOGLE • LEE HARRIS: AIR CARGO OUTSOURCING

I D E A S, P O L I T I C S & P O W E R

THE SCHEME FOR REPUBLICAN DOMINATION

BY HAROLD MEYERSON DECEMBER 2023 PROSPECT.ORG

THE 2023

The Alliance for American Manufacturing celebrates 10 years of American-made gift giving with the 2023 Made in America Holiday Gift Guide.

This year’s guide showcases some of our favorite products from years past plus all-new additions for 2023 at a variety of price points—all 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.

When you buy something that is American-made, you support American jobs and send your money right back into the local economy. And, supporting local business is one simple way to help your neighbors.

It may seem like a small gesture, but buying American-made gifts is a simple way to help your neighbors.

And it’s a great way to make a difference this holiday season.

Check out the items on this year’s list:

December 2023 VOL 34 #6

Features

59

16 The Blueprint

The far right has a plan to remake America. They even wrote it down. By Harold Meyerson

22 The Secret Trial

Google tried to withhold practically every critical detail from the public in its monopolization case. A band of advocates and journalists fought back. By Luke Goldstein

13

30 A Chance to Speak

Katie Anderson’s story shows the difficulty of finding some measure of accountability after being sexually assaulted.

By David Dayen

40 Hard Times in the Back Yard

22

Bailed-out major airlines have outsourced ground work to subcontractors. Injuries and fatalities on the tarmac are taking off. By Lee Harris

48 Massachusetts Blues

It’s not just far-right Republicans who undermine democracy. A majority of voters in the Bay State favor progressive policies, but don’t get them. Why not? By Robert Kuttner

Prospects 04 The Life-and-Death Cost of Conservative Power By Paul Starr

Notebook 07 Buy and Displace By Robin Kaiser-Schatzlein 10 How Race Bends Science By Ramenda Cyrus 13 Southwest Virginia Residents Question Nuclear Shift

By Gabrielle Gurley

Culture 59 Jarod Facundo on The Video Game Console Wars 62 Aziz Z. Huq on Tyranny of the Minority: Why American Democracy Reached the Breaking Point 64 Parting Shot: My Rube Goldberg Machine of Primary Dreams By Francesca Fiorentini Cover art by Roberto Parada

JUNE 2022 THE AMERICAN PROSPECT 1

Visit prospect.org/ontheweb to read the following stories:

“ I guess I originally invested in Rite Aid because it seemed like investing in Nickelback …

L ike everyone hates on Nickelback because at one point it just became cool to hate on them, but the reality is they didn’t sell 50 million albums because everyone hated them.” —Burned Rite Aid investor Matthew Rieger, as quoted by Maureen Tkacik in her story on the pharmacy’s implosion

As a result of negotiations, the Belvidere plant will be reopened and even expanded, with Stellantis agreeing to produce a midsized truck there, as well as add an electric-battery assembly line. —Lee Harris looks at a surprising aspect of the United Auto Workers’ recent negotiating victories

The fantasy

now gruesomely playing out in Israel and Palestine is shared by both Hamas and the Netanyahu government: a homogeneous state, devoid of either Jews or Palestinians, depending. Each understands that to turn its fantasy into actuality, it needs to bolster the other and undermine any groups that might advance the prospects for some form of coexistence.

—Harold Meyerson on Israel Google has persistently pushed for Jonathan Kanter’s recusal from all matters related to the firm, because Kanter represented Microsoft, Yelp, and other rivals. According to Google, that makes Kanter biased and precludes him from participating in any Google-related lawsuits, including the one filed earlier this year over the tech giant’s monopolization of adtech.

—Luke Goldstein on the DOJ’s and Big Tech’s legal revolving door [Conservatives might warm up to electric vehicles if] liberals stop buying Teslas. Elon Musk is a noxious right-wing union-buster whose cars are poorly manufactured, and unlike a decade ago when Tesla was one of the only EV options around, plenty of other manufacturers are mak-

Bill Clinton was on the verge of opening the door to this caper [to allow younger workers to redirect their money] when the Lewinsky scandal intruded. House Democrats, who held their noses and stood by their randy president, warned Clinton not to mess with Social Security. Clinton backed off. (Thank you, Monica.) —Robert Kuttner on recent attacks to Social Security

California’s ability to drive national standards also means that where the state ultimately settles on legislation, momentum for an issue slows down with it. Put differently, the California law—and however it manifests in a federal version—gives Apple and other tech companies a touch point they can use to justify why nothing more needs to be done.

— Jarod Facundo on Apple and right-to-repair laws

ing competitive cars. Even for the cash-constrained there is always the good old Chevy Bolt, which is both cheaper than a Tesla and made with American union labor.

— Ryan Cooper on the Republican electric-vehicle tantrum

COURTESY OF TESLA , INC

G

On the Web

2 PROSPECT.ORG DECEMBER 2023

EXECUTIVE EDITOR David Dayen FOUNDING CO-EDITORS Robert Kuttner,

Paul Starr

CO-FOUNDER Robert B. Reich EDITOR AT LARGE Harold Meyerson SENIOR EDITOR Gabrielle Gurley MANAGING EDITOR Ryan Cooper ART DIRECTOR Jandos Rothstein ASSOCIATE EDITOR Susanna Beiser STAFF WRITER Lee Harris JOHN LEWIS WRITING FELLOW Ramenda Cyrus WRITING FELLOWS Jarod Facundo, Luke Goldstein INTERNS Jelinda Montes, Micah Morton-James, Jack Styler 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, Maureen Tkacik, Michael Tomasky, Paul Waldman, Sam Wang, William Julius Wilson, Matthew Yglesias, Julian Zelizer PUBLISHER Ellen J. Meany PUBLIC RELATIONS SPECIALIST Tisya Mavuram ADMINISTRATIVE COORDINATOR Lauren Pfeil BOARD OF DIRECTORS Daaiyah Bilal-Threats, David Dayen, Rebecca Dixon, Shanti Fry, Stanley B. Greenberg, Jacob S. Hacker, Amy Hanauer, Jonathan Hart, Derrick Jackson, Randall Kennedy, Robert Kuttner, Ellen J. Meany, Javier Morillo, Miles Rapoport, Janet Shenk, Adele Simmons, Ganesh Sitaraman, Paul Starr, Michael Stern, Valerie Wilson PRINT SUBSCRIPTION RATES $60 (U.S. ONLY) $72 (CANADA AND OTHER INTERNATIONAL) CUSTOMER SERVICE 202-776-0730, ext 4000 OR info@prospect.org MEMBERSHIPS prospect.org/membership REPRINTS prospect.org/permissions

Vol. 34, No. 6. The American Prospect (ISSN 1049 -7285) Published bimonthly by American Prospect, Inc., 1225 Eye Street NW, Suite 600, Washington, D.C. 20005. Periodicals postage paid at Washington, D.C., and additional mailing offices. Copyright ©2023

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S T C E P S PRO PAUL STARR

The Lifeand-Death Cost of Conservative Power

Conservatives often Reagan and his successors not only to cut argue against proposals for public remedy on grounds of futility. Public remedy will be ineffectual, they say, because the problems it is meant to fix arise from intractable social conditions or human nature. When the new Speaker of the House Mike Johnson recently responded to demands for gun regulation after a mass shooting by saying that “at the end of the day” the true problem is not guns but the “human heart,” he was making the futility argument.

The “futility thesis,” as Albert Hirschman calls it in his classic The Rhetoric of Reaction, has a long history, but it has special relevance to contemporary politics. It played a major role in the neoconservative attack on liberal programs of the 1960s and subsequent rollback of federal regulation and spending. One of Ronald Reagan’s favorite lines, “We had a war on poverty, and poverty won,” perfectly expressed the conservative charge that liberal reform was futile.

That view helped persuade Congress under 4 PROSPECT.ORG DECEMBER 2023

programs for low-income communities but also to devolve policy to the states through such measures as block grants that let the states decide how money would be spent.

Although we hardly knew it at the time, the United States was conducting a national experiment: What would be the effect on Americans’ well-being if we turned over a wider array of policies to states controlled by political parties with opposed agendas?

Three other developments have made state governments more central in policymaking.

One is preemption. Since the 1980s, states in Republican hands have increasingly preempted local laws, preventing Democraticrun cities from adopting such policies as tobacco taxes and anti-smoking regulations, paid sick leave, and higher minimum wages.

The other two developments advancing the power of states are the work of the Supreme Court. By striking down the constitutional right to abortion, the Court has given states leeway to adopt diametrically

opposed policies on reproductive rights.

And by refusing to impose any limits on partisan gerrymandering, the Court has enabled incumbent state parties to expand their legislative majorities and entrench themselves in power.

These shifts have greatly increased both the importance of state-level policy and divergences between red and blue states. For many purposes, it no longer makes sense to think of the United States as one country. Depending on their state of residence, Americans live under drastically different policies concerning public health, taxes, the stinginess or generosity of public benefits, unionization, gun safety, and many other things that affect their well-being, indeed, their survival.

So what have been the results of the national experiment of putting more policymaking in the hands of states? Survival, as registered in mortality rates and life expectancy, is the ultimate measure of well-being, and the data for the United States in recent decades do not tell a happy story. While life expectancy continued rising in all the high-income countries in the late 20th century, the United States began lagging behind its peers. By 2006, it ranked last, and after 2014, life expectancy in this country began falling. The pattern, however, varies considerably across states.

As state-level policy has diverged since the 1970s (and especially since 2000), so have differences in mortality rates and life expectancy among the states. These differences are correlated with a state’s dominant political ideology. Americans’ chances of living longer are better if they live in a blue state and worse if they live in a red state. The differences by state particularly matter for low-income people, who are most likely to suffer the consequences of red states’ higher death rates. To be sure, correlation does not prove causation, and many different factors affect who lives and who dies. But a series of recent studies make a convincing case that the divergence of state-level policymaking on liberal-conservative lines has contributed significantly to the widening gap across states in life expectancy.

In a 2020 paper, a team of researchers led

by Jennifer Karas Montez assembled annual data from 1970 through 2014 on both life expectancy and state policies in 18 different policy domains, including health, labor, the environment, and taxation. In previous work, one of the collaborating scholars, Jacob M. Grumbach, had shown that state-

level policies over that period had polarized on a liberal-to-conservative spectrum.

According to the new Montez study, which controlled for differences in state populations, the polarized shifts in state policy were associated with changes in life expectancy. States that adopted liberal policies were more likely to experience larger gains in life expectancy (and in recent years to avoid an outright decline). Connecticut and Oklahoma were the two states whose policies shifted the most, Connecticut toward the liberal side and Oklahoma toward the conservative side. In 1959, life expectancy in both states was 71.1 years; by 2017, it had increased to 80.7 years in Connecticut but only to 75.8 years in Oklahoma.

Couldn’t the explanation for such changes lie in changes in education, income, and other characteristics of the states? Montez and her co-authors estimated the association of life expectancy with state policy liberalism, net of other factors such as the composition of the state’s population. Taking those factors into account, their model indicated that if all states’ policies were the same as Connecticut’s in 2014, U.S. life expec-

cides, and alcohol-related disease), concentrated among Americans without a college degree. Might those deaths and the share of the college-educated population account for the increased divergence across states? The Couillard study found that it accounts for only about one-sixth of the change.

And what about changes in per capita income among the states? Perhaps life expectancy has fallen in states where incomes have fallen, while it has risen in states where incomes have gone up. It turns out, however, that changes in state incomes don’t predict changes in life expectancy.

What does have an impact are differences in levels of state income over the preceding three decades. The longevity of a population today reflects the investments in health made in years past. The Couillard study concluded that “the most promising explanation” for rising geographic disparities lies in “efforts by high-income states to adopt specific health-improving policies and behaviors,” efforts which have “reduced mortality in high-income states more rapidly than in low-income states, leading to widening spatial disparities in health.” These efforts, they write, “include anti-smok82 ing policies, expansions of Medicaid, 80 i nc ome suppor t , Connecticut and norms around 78 health behaviors.”

76 The full impact Oklahoma on life expectancy 74 of a change in policy often takes years to 72 emerge. For exam70 ple, higher tobacco taxes may reduce 68 smoking and deaths 66 from lung cancer 1969 1979 1989 1999 2009 2019 1959 and other diseases, CHART FROM JENNIFER K AR AS MONTEZ ET AL., “US STATE POLICIES, POLITICS, but mortality rates AND LIFE EXPECTANCY,” THE MILBANK QUARTERLY, VOL. 98, NO. 3, 2020 do not immediately tancy would have been two years longer for register the effect. Similarly, much of the women and 1.3 years longer for men—and benefit from providing health care to chilif all states’ policies were like Oklahoma’s, dren shows up only in adulthood. Untreated disease in children affects their energy Americans’ lives would have been shorter. and performance in school, onset of disIn a 2021 study, Benjamin K. Couillard and abilities, adult health, and overall ability co-authors approached the question a differ- to thrive later in life. ent way, exploring alternative explanations In one of the rare studies that tracks longfor the increased geographic divergence in life term effects of policy, Andrew Goodmanexpectancy. Much recent research on individ- Bacon used state-by-state variations in the ual mortality rates has pointed to the increase original introduction of Medicaid coverin “deaths of despair” (drug overdoses, sui- age for children between 1966 and 1970 to

Life Expectancy, 1959–2019

estimate health and economic effects in adulthood. He found that early childhood eligibility for Medicaid reduced death and disability and increased employment up to 50 years later. In fact, it saved the government more than its original cost because the recipients later received less in public benefits and paid more in taxes.

Another recent study also makes a powerful case against the futility thesis. So many Americans already own guns that it may seem that no policy limiting firearms can make any difference. But in a paper published this year analyzing state-level changes in gun regulations and gun mortality from 1991 to 2016, Patrick Sharkey and Megan Kang found “strong, consistent evidence supporting the hypothesis that restrictive state gun policies reduce overall gun deaths,” including both homicides and suicides committed with guns. They used data on nine categories of gun laws to create an index for each state based on the balance between restrictive policies, such as background check requirements, and permissive policies, such as concealed-carry laws. For 2016 alone, they estimated that restrictive policies passed since 1991 averted 4,297 deaths, about 11 percent of the total gun deaths that year.

The shift of policymaking to the states is often justified on grounds of federalism and the belief that decisions should be left to the level of government closest to the people. But if conservatives genuinely believed in that principle, would they be agitating now for a national law to ban abortion? Would they be hoping that the Supreme Court continues to strike down state and local gun restrictions? Would they continue to support decisions by state legislatures to preempt local laws? What unites the right is not a principled belief in federalism or local control but a preference for making decisions at whatever level of government they dominate.

What also unites conservatives is a complete absence of any self-reflection about the impact of their policies on life and death in America. The futility thesis must be a great consolation to those who believe in it because otherwise they would have to confront the toll that their policies have taken. The balance of power in the states has been literally a life-and-death matter.

Liberals and progressives should know that the policies they have struggled to enact have not been in vain. n DECEMBER 2023 THE AMERICAN PROSPECT 5

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NOTEBOOK

Joselin Hernandez’s family was offered between $22,000 and $23,000 to move out of their rent-controlled apartment.

Buy and Displace Across Los Angeles, corporate landlords and even RV owners work hard to raise rents.

ROBIN K AISER-SCHATZLEIN

By Robin Kaiser-Schatzlein In May of 2020, Joselin Hernandez was sitting alone in the rent-stabilized apartment she shared with her mom, sister, and brother in Los Angeles’s Highland Park neighborhood when she heard a loud thud.

It was unusual but not necessarily surprising. Since her apartment building had been purchased by a corporate landlord called K3 Holdings in late 2019, her family had endured a torrent of so-called “cash-forkeys” offers that promised a big payment to move out. But the family turned down the advances, and soon afterward they were enveloped by construction noise, as the new landlords began construction simul-

taneously on the apartments above and on both sides of their home, whose tenants had taken the money.

Hernandez was in school at the time, studying to be a social worker for children with autism, and working from home because of the pandemic. The construction noise was so loud she couldn’t hear people on phone calls. “It sounded like they had bulldozers going on. Walls were vibrating,” she told me recently. When she heard the thud, she went to the bathroom and saw debris all over the f loor. Her mom told her to take a picture. That’s when she saw the construction worker’s leg coming through the ceiling.

K3 Holdings is a company owned by the

20-somethings Nathan and Michael Kadisha, heirs of the Texollini textile fortune in Long Beach. K3 Holdings emerged as a homebuying force in 2019, and tenants say they enacted a playbook across their portfolio of 40 properties, using myriad tactics to entice their rent-controlled tenants to exit their apartments, and when that didn’t work, ask tenants to leave. Then they could re-rent the apartments at higher rates.

This model can work thanks to both loose enforcement of housing laws and dangerous financial incentives for landlords to exploit their tenants, coupled with a hot market.

“The usual economic incentive for speculators to buy rent-controlled property and ‘cleanse’ it of rent control through harassment or eviction has grown dramatically as rents have increased by huge amounts,” says Gary Blasi, a professor of law at UCLA. Such a strategy eliminates some of Los Angeles’s most affordable housing with some of its most vulnerable populations. Rapidly rising values for housing creates plenty of homelessness, but it also can create dangerous living conditions for people with housing too.

DECEMBER 2023 THE AMERICAN PROSPECT 7

NOTEBOOK In the case of K3, the harassment was acute. According to multiple tenants I interviewed, tenants in their buildings across the city were visited daily by freelance “relocation specialists,” who offered them cash-for-keys agreements. Some nonEnglish-speaking tenants were asked to sign paperwork in English that doubled their rent. Live-in managers were let go, replaced with off-site substitutes, and the conditions worsened. As families and renters took buyouts, the firm began construction, often without permits, on multiple units at once. Company spreadsheets confirmed by depositions of K3 staff tracked which apartments were paying below-market rent and by how much. Tenants who complained or took action against the company would often receive a slew of threeday eviction notices. K3 Holdings did not respond to a request for comment.

Prior to K3’s acquisition, the Hernandezes’ building was occupied by mostly Latino families, with a pool in the courtyard that kids splashed in all day, their parents relaxing in chairs looking on. Joselin Hernandez’s family moved to Los Angeles in 1998 from Guadalajara, Mexico; as a kid, she and her parents settled into the quiet rentstabilized apartment building in Highland Park, which is between downtown L.A. and Pasadena. The boxy two-story building looks a lot like a mid-century motel, with palm trees flanking the entrance and a breezy baby-blue-and-white color scheme adorning the stucco and outdoor walkways.

In the more than 20 years that they lived there, the family had no problem with management. “The building was well taken care of,” Hernandez says. Families generally kept to themselves. Then, in March of 2020, things changed. A representative from K3 showed up and offered her family between $22,000 and $23,000 to move. The family turned it down. The offers kept coming though, eventually reaching $100,000. But her mother Alma, the primary name on the lease, didn’t want to move.

One major impediment to taking the offer was that the money would be entirely taxable, and with her brother in college, it would have radically changed his financial aid eligibility. Besides, with rents rising so fast in Los Angeles, it’s not clear how far the $100,000 (or whatever was left after taxes) would have taken them. The benefits of rent stabilization over the 20 years they lived in 8 PROSPECT.ORG DECEMBER 2023

the apartment meant that they could make a life in the metro area. I asked Hernandez where she thought they might move if they had taken the buyout and she was completely stumped. “It’d be out of L.A. County for sure,” she says.

The new owners had emptied the building of families that were living in other below-market and rent-stabilized units.

Without warning, the owners began construction on over 20 apartments at once.

Rats crisscrossed the lobby, cockroaches ran wild, a dumpster full of construction debris spilled across the parking lot, and water flooded from uncapped pipes, causing black mold to carpet the ceilings of the remaining occupied apartments.

Similar conditions proliferated at many other K3 properties, according to tenants at other buildings. But sadly, this level of effort on the part of the landlord to encourage displacement is not contained to just one company. Across L.A., the researcher Joel Montano finds a consistent corporate model tied to purchasing buildings, each registered to a separate LLC, and then evicting tenants and flipping units “as a measure of first resort, not of last resort.” The strategy of mismanaging communication, scheduling disruptive and harmful construction, and harassing tenants to leave is a business model all unto itself, only made worse by the scarcity of housing. About 3 in 4 households in L.A. are rent-burdened (meaning they pay over 30 percent of their income on rent) and about half are severely rent-burdened (meaning they pay over 50 percent).

This buy-and-displace tactic is not limited to Los Angeles or even California, and even local tenants’ rights ordinances have been relatively ineffective. One of the biggest factors is that landlords can always accrue fines for mismanagement, and then walk away with no liability if necessary.

As rents rise and affordable housing grows scarce, entirely new sectors of housing emerge to exploit renters. In Los Angeles, RVs have become an ad hoc solution to housing scarcity, sitting uneasily between living in a tent and a regulated apartment dwelling. Many of these homes are rented out by so-called “van lords” who often buy RVs at discount auctions, park them on public streets, and rent them out. Los Angeles County Supervisor Kathryn Barger noted that her district is home to multiple RV settlements, including 90 parked on a stretch

Across L.A., the researcher Joel Montano finds a consistent corporate model tied to purchasing buildings, evicting tenants, and flipping units. of Forest Lawn Drive, in the shadow of the famed Hollywood sign. Across the county, nearly 6,500 people are living in 4,000 rigs as of 2023, a 40 percent increase since 2018. In general, 14,000 vehicles are used as homes in Los Angeles County. Researchers at UCLA find that people living in vehicles tend to be women who have or are looking for work, and their children.

RVs are cheaper than the alternative, but not that cheap. ABC7 found one tenant, a full-time home health aide, paying $400 a month to stay in one RV, noting that “a lot of people pay a lot more than that.” One van lord told ABC he now owns 15 RVs around town, and charges $600 to $800 a month to stay in them.

RVs provide protection from the elements, but because they are completely unregulated, they enable dangerous conditions and neglect. Many have no running water or effective waste disposal, and they have a nasty habit of being set on fire. RV encampments are a new class of slum housing, something that L.A. has plenty of. In a census survey from 2019, 64,400 units in the city were considered severely inadequate, with 102,000 having no working flush toilets (much like the RVs) and 143,000 with mold.

The city and county are attempting to bring these black-market dwellings into the light, largely by tweaking numerous legal codes. The city council in September passed a motion that directed the city attorney to draft an ordinance making it illegal to lease or rent the vehicles while in public spaces. The county has drafted a similar measure. But the RV rental economy is spilling into private realms as well.

Landowners are renting out their driveways and vacant lots to RV owners, and as the Los Angeles Times reported this summer,

A city code inspector that visited the K3 apartment building in Highland Park found 190 code violations. the city filed misdemeanor charges to an ad hoc RV park in Sylmar.

Hernandez’s mother Alma grew concerned about the possibility of being evicted, and found herself looking for help online. She eventually came upon the Los Angeles Tenants Union’s Facebook page, and contacted the organizers. With support of the LATU, Hernandez’s building formed a tenant association that worked to stop construction on the building by submitting complaints to the city about apartments that were flooded with water or had bathrooms that were made inoperable for months at a time. When a city code enforcement inspector came through in 2021, they found around 190 code violations, revealing that almost none of the recent work done had been permitted. K3 would have to tear everything out and start

over. After a long fight, the tenant association also got the housing department to put the building into the Rent Escrow Account Program (REAP), which allows tenants to place half of their rent into an account until the owners remediate their violations.

But tenants at other K3 buildings haven’t been so lucky as to get into REAP. Many are living with unfulfilled work orders and declining conditions. The herculean effort to get the city to hold K3 to account in their building shows how difficult it is to enforce tenants’ rights laws in Los Angeles, and how easy it is for harassment to slip through the cracks.

To some extent, the city knows about the pervasiveness of harassment. The Tenant Anti-Harassment Ordinance, which prohibits landlords from withholding repairs, refusing to accept payments, or other

actions intended to remove tenants from buildings, was passed by the city council in August 2021. But it was largely an unfunded mandate; no investigators or lawyers were assigned to enforce it until 2022.

Even now, the city housing department claims in comments to Capital & Main that of the thousands of complaints they’ve received, most don’t qualify as harassment.

“The truth is,” an official remarked, “that harassment is really broad and subjective, and we haven’t got any strong cases.”

This assessment comes as a surprise to K3 tenants like Hernandez, who have issued numerous complaints themselves. To date, only 12 complaints against all landlords in L.A. under the ordinance have been referred to the city attorney’s office, and none have resulted in a landlord being prosecuted. The law also doesn’t guarantee that legal counsel will be paid court fees, so few lawyers are willing to take on these cases.

Today, Hernandez’s building is organized with a group of K3 tenants across the city, sharing support and resources, calling themselves the K3 Tenant Council. Some buildings have launched monthslong rent strikes, and others have won small improvements.

Hernandez fought the landlord on a mandatory replacement of their carpet, and when the landlord brought in an environmental inspector to prove there wasn’t mold under the carpet (he actually found that there was), other tenants immediately demanded the same inspection, revealing a widespread mold problem across their buildings.

On a sunny day in September, I visited Hernandez at her building and we talked by the pool while her little sister and boyfriend ate lunch on chaise lounges nearby. Hernandez told me about how the whole process had brought her closer with her neighbors, and while she didn’t know what would happen next, she didn’t feel like she would have to move anytime soon, which really was a major win. The city was now overseeing construction, and the contractors were less intrusive and more respectful of the tenants. The stability of an affordable apartment had allowed her to start her career as a speech pathologist, working one-on-one with families in the surrounding area. The apartment had been their landing base and their rock, she said, “and that’s why we’ll keep fighting.” n Robin Kaiser-Schatzlein is a freelance journalist who has written for The New York Times, The New Republic, and The Baffler.

DECEMBER 2023 THE AMERICAN PROSPECT 9

NOTEBOOK

How Race Bends Science

The clinical diagnosis of schizophrenia has been applied disproportionately to Black men, an artifact of a changing culture.

By Ramenda Cyrus In October 2022, Porter Burks, 20, was shot and killed by Detroit, Michigan, police.

Burks suffered from paranoid schizophrenia, and his family had called the police out of concern for him. According to a wrongful death lawsuit filed by the family, the police said they would take Burks to a hospital once he was found. Instead, Burks was shot 19 times as he wielded a pocketknife in the middle of the street.

10 PROSPECT.ORG DECEMBER 2023

Burks’s story reminds the public of how ill-equipped the police are to deal with mental health crises, but it also reflects the dangerous intersection between criminal justice and race. When Black men have mental health crises, they are assumed to be a threat to others. Sometimes, they are armed or acting erratically; other times, they are just existing. In all cases, the Black man is facing a system that has made a myriad of assumptions about him before he ever actually encounters anyone or anything.

Burks was up against that system as well.

Mentally ill people are more likely to be imprisoned, homeless, and victims of substance abuse. They also experience high rates of unemployment and general social isolation. But mental illness was once simply misunderstood, or ignored. There came a point at which criminalizing mental illness morphed into a useful tool of oppression, and Black men were often the scapegoats.

There was a concerted effort to paint Black men as unstable, irrational, and paranoid, and sometimes outright “schizophrenic.”

Schizophrenia is a psychiatric condition that ails about 1 percent of the population.

Theoretically, this should occur at the same rate among all racial and ethnic groups.

Yet studies have continually suggested that Black men are diagnosed as schizophrenic at higher than average rates. There are also cases of misdiagnosis: A 2018 article in Bipolar Disorders found that Black people with bipolar disorder are more likely to be misdiagnosed as schizophrenic. The reasons for this are wide-ranging, but the

There came a point at which criminalizing mental illness morphed into a useful tool of oppression, and Black men were often the scapegoats. medical community generally accepts that racism plays a part.

Schizophrenia has an “association with lower socioeconomic status, with past trauma, and it may show that for Black people, there’s a greater prevalence or incidence of schizophrenia, but it’s not because they’re Black,” Stephen McLeod-Bryant, presidentelect of Black Psychiatrists of America, told the Prospect. “It’s because they live in environments that are prone to stress and trauma that may trigger psychotic disorders.”

A limited cultural understanding of the disease leads to people presuming that those with schizophrenia are unstable members of society who should be treated with caution. The diagnosis has lasting effects on a person’s life, how others see them, and how they see themselves. It came to be strongly associated with Black men in the 1960s, and has prevailed through the decades. It feeds into society’s larger perception of Black men as violent.

None of this discounts the pain that Black men like Burks and others suffer because of schizophrenia and psychosis. Still, encounters by Black men with the police are always reflecting these stereotypes, contributing to miscommunication and, thanks to our militarized criminal justice apparatus, to swift escalation and death.

“There is a cultural misperception in the Western world in which the Black man is demonized, consciously and unconsciously, to be a threat,” McLeod-Bryant said.

So many Black men who need help do not get it because of this perception, and others are shot and even murdered over it. It is not an association that will be broken lightly, but understanding where that gut reaction comes from can be a start.

How any illness or diagnosis is understood today only comes from decades of trial and

error by medical professionals. However, the boundaries of this trial and error are dictated by not just the medical standards at the time, but also the social circumstances in which it takes place.

As Jonathan Metzl argues in his 2010 book The Protest Psychosis: How Schizophrenia Became a Black Disease, schizophrenia was not spared from this fate. Ultimately, there was a marked shift in everything from the language used to describe and diagnose to the race of the patients admitted for the ailment, and it occurred just as the civil rights movement made headway. It soon became an easy way for the state to justify locking up Black men as they fought for their freedoms.

At that point, the typical “schizophrenic” patient, from the viewpoint of the profession, changed from a docile, confused white woman to an angry, violent, delusional Black man. “Official descriptors emphasized the generally calm nature of such persons in ways that encouraged associations with middle-class housewives,” Metzl wrote about the definition prior to the 1960s. “In 1968, in the midst of a political climate marked by profound protest and social unrest, psychiatry published the second edition of the Diagnostic and Statistical Manual (DSM). That text recast the paranoid subtype of schizophrenia as a disorder of masculinized belligerence. ‘The patient’s attitude is frequently hostile and aggressive,’ the DSM-II claimed, ‘and his behavior tends to be consistent with his delusions.’”

In other words, the rendering of a clinical, supposedly scientific diagnosis was not immune to the changing culture. “I can’t say that it was exactly causal,” Metzl told the Prospect. Still, “it was reflective of white anxieties of the moment.”

Today, schizophrenia is understood as a person’s disordered thinking severely affecting their quality of life. Often, this state of delusion is called psychosis. Psychosis, however, can be an aspect of many mental illnesses—from trauma to depression—and does not itself constitute schizophrenia. The DSM-5, the latest edition of the prevailing diagnostic handbook, requires a person to be in that state for six or more months to be eligible for a schizophrenia diagnosis.

Also, people with schizophrenia are more likely to be victims of violence than perpetrators of it.

Metzl’s work aims to “show how there is implicit bias. It’s not just about the prescriber, but about the actual diagnostic category.”

In 2021, the American Psychiatric Association (APA), publisher of the DSM, acknowledged this bias and the harm it has done.

The organization issued an apology, stating, “Late 20th century psychiatrists commonly attributed their minority patients’ frustrations to schizophrenia, while categorizing similar behaviors as ‘neuroticism’ in white patients.” The organization also acknowledged how APA members have played a role, and they conclude: “This reveals the basis for embedded discrimination within 2023 STATEMENT OF OWNERSHIP, MANAGEMENT AND CIRCULATION (REQUIRED BY 39 USC 3685): Publication Title: The American Prospect.

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DECEMBER 2023 THE AMERICAN PROSPECT 11

A protester holds up a picture of Tamir Rice, a 12-year-old boy murdered by Cleveland police in 2014. psychiatry that has contributed to reduced quality of care for BIPOC populations and perpetuation of dangerous stereotypes.”

This is one way racism becomes written into systems. It is rarely explicit, and sometimes only visible with decades of perspective in between. That does not mean it was never there.

Tamir Rice was murdered by Cleveland, Ohio, police in 2014. Rice, 12, was on a playground playing with a toy gun when police forces descended upon him and shot him. Nearly a decade later, the case stands out. People at the time were shocked by the police’s overreaction, and their quickness to shoot. Many noted Rice’s young age, how he was unarmed, and the police’s later attempts to paint Rice as a threat, using the toy gun as justification.

Rice was not the first or last Black child to be murdered by the police. But the toy gun somehow complicated the story. In the most official telling, police were unable to distinguish the toy gun from a real one, and were acting on the authority that there was a threat nearby. This argument—which was used to decline to indict the officer involved—neglects how the 911 caller had specified the weapon in question was “probably fake,” and that the brandisher was “probably a juvenile.” The police car 12 PROSPECT.ORG DECEMBER 2023

At least some of the work to undo implicit bias has to start with psychiatrists in the field. was still moving when the officer fired the first shot at Rice.

There were no attempts to assess the full situation, to de-escalate, or to take accountability after the fact. All there was in the moments before Rice was shot was a perceived threat, and the association of Black people with violence and aggression.

It may seem clear now that the responding police officer was acting out of some sort of bias. Removing this bias is the partial aim of options like community alternatives to policing. But dismantling implicit bias goes beyond one institution, even beyond criminal justice.

As we see with the changing diagnoses of schizophrenia, psychiatric institutions have played a role in forming the particular type of implicit bias that leads cops to shoot a 12-year-old boy with a toy gun. At least some of the work to undo bias has to start with psychiatrists in the field.

Onyi Okeke is a board-certified psychiatrist who focuses on schizophrenia in the Black community, specializing in the diagnoses in young Black people. Okeke understands the harm in making evidence-free assumptions about a patient.

“There is a lack of agency in terms of treatment of psychosis,” Okeke told the Prospect. Too often, Okeke said, physicians do not stop and empathize with a patient, or take the time to fully explain a diagnosis and potential treatment, so the patient can make an informed decision. As a physician herself, Okeke tries to consider the whole history and state of a patient, looking past their diagnosis alone.

“If somebody, especially as a Black person, [presents] with psychotic symptoms, very heavy-handed drugs, like antipsychotics, are often used,” Okeke said. “But there is a whole nuanced way to do it.” Okeke’s approach involves considering the patient’s past encounters with the mental health system, and for the Black men she works with, the ways racism may have been subtly or overtly a part of the process.

“From a historical standpoint, race impacts medical communication because racial tensions are structured into clinical interactions long before doctors or patients enter the examination room,” Metzl wrote in 2010.

Part of the problem is a lack of Black psychiatr ists. A s of 2021, A PA data showed that just 2 percent of psychiatrists in America were Black. This cultural understanding can be very important for a healthy medical relationship, but McLeod-Bryant points out how systemic racism impedes Black doctors. And as Okeke cautions, being a Black doctor does not automatically make them fully understand a Black patient.

“Even with that I still have to have humility,” Okeke said. “I educate myself as much as possible because my own experiences with racism have been different. [I] still have to put their story at the forefront.”

Without seeing and understanding the wound that racism creates, one may be inclined to dismiss racial tension as an overreaction. And an overreaction can be seen as “crazy.” But with a full view of the history of the patient and the culture they are subjected to, psychiatrists may be more empathetic in their diagnoses; and maybe the police can be more careful in their response to a crisis. n

KEN BLAZE / AP PHOTO

NOTEBOOK

Southwest Virginia Residents Question Nuclear Shift

Gov. Glenn Youngkin wants to build next-generation nuclear plants and data centers. But he won’t tell Virginia residents what he’s doing.

By Gabrielle Gurley

U.S. DEPARTMENT OF ENERGY

Is it good to be first? In early November, Virginia’s Republican Gov. Glenn Youngkin announced his nuclear “moon shot” plan, a major public-private energy project to build small modular nuclear reactors (SMRs).

Energy DELTA Lab, a nonprofit initiative, spearheads the effort, along with the state’s Southwest Virginia Energy Research and Development Authority, InvestSWVA, and the Virginia Department of Energy. Private partners, including the energy companies Appalachian Power and Dominion Energy, which owns the state’s two conventional nuclear plants, are also on board.

SMRs have never been deployed commercially in the United States, and Youngkin wants Virginia to be first out of the gate. At the same time, it appears that the less work-

aday people in Southwest Virginia know about those plans the better. How else to explain that state and county officials have not held a single public forum about SMRs and associated projects expected to launch in ten years?

Energy DELTA Lab plans to research and develop a next-generation nuclear energy source along with other new clean and renewable energy technologies through more than 12 projects, with the goal of providing about one gigawatt of power.

The proposal, which would take shape on 65,000 acres of former Wise County coal mine lands, would create 1,650 jobs.

The administration’s press release about the plan did not specifically mention SMRs. But the Energy DELTA Lab website indicates that SMRs are in the mix for the multibillion-dollar project. An SMR is an advanced

design that is basically a scaled-down version of the light water reactors found in conventional nuclear plants. Individual modules can produce up to 300 megawatts of carbon-free electricity and be factorymanufactured, transported, and assembled at power plant sites, which cuts down on costs. The plan also includes spent nuclear fuel recycling, another national first if the Virginia project can pull it off. According to the federal Office of Nuclear Energy, the United States “does not currently recycle spent nuclear fuel.”

Also included are an estimated 10 to 12 data centers, the computer server networks that are the neural hubs of the internet.

Energy DELTA Lab’s website calls the location “the most significant economic development project the region has ever seen.”

“That’s a major policy shift that feels like

An artist’s rendering of a NuScale small modular nuclear reactor DECEMBER 2023 THE AMERICAN PROSPECT 13

NOTEBOOK

14 PROSPECT.ORG DECEMBER 2023

Gov. Glenn Youngkin’s all-ofthe-above energy approach downplays solar and wind and embraces state-of-the-art nuclear options.

than 60 people showed up to an October town hall convened by the coalition and four other regional groups, many of them knew nothing about it either. No local or state officials attended or spoke at the event, according to the organizers.

Five generations of Fisher’s family mined coal. She grew up in Dorothy, West Virginia, “a coal camp,” or company town. So she scoffs when “nukers,” as she calls the nuclear energy proponents, say it’s too early for public forums. Failing to address residents’ fears about higher energy costs, safety, and health and environmental issues like radioactive waste storage (controversies also surround SMR-generated nuclear waste) will complicate future discussions. For Fisher, it’s long past time to collect citizen input. “[The governor] came, announced it, and said we’re doing it,” Fisher says. “You’re not engaging the people, the public—that has been our mantra for the past year.”

Announced last October, Youngkin’s energy plan is the centerpiece of the administration’s “all of the above” approach to natural gas, nuclear, solar, wind, and hydrogen.

Even though it touts the “largest planned

offshore wind project in the Free World,” the nearly $10 billion Coastal Virginia Offshore Wind project to power 660,000 homes, it otherwise largely downplays renewables.

On the climate question, Youngkin minimized the Virginia Clean Economy Act introduced under his Democratic predecessor Ralph Northam. His plan, by contrast, deems the 2045 goal set for complete decarbonization unrealistic and largely pivots away from renewables, citing intermittency problems and the new storage technologies and transmission upgrades that they require. Instead, Youngkin’s plan leans into state-of-the art nuclear options—but ones that also wouldn’t be available for many years, if ever, which fails to advance the emissions cuts necessary for the U.S. to reach its climate goals.

The plan’s backward-looking approach was in line with Youngkin’s decision to yank Virginia out of the Regional Greenhouse Gas Initiative. He cited increased costs that Dominion, the state’s largest investorowned utility, passed on to residential and business consumers; the state’s Department of Planning and Budget reported that con-

EDUARDO MUNOZ ALVAREZ / AP PHOTO

it should have some type of citizen input before it’s finalized,” says Wally Smith, vice president of the Clinch Coalition, a local environmental group.

Being first out of the gate on nuclear energy projects is risky. One week after the DELTA Energy Lab announcement, NuScale, the country’s leading SMR developer, which has interests in the Virginia plan, and the Utah Associated Municipal Power Systems (UAMPS), an interlocal state agency that supplies energy services, canceled their SMR project. Scheduled to go online by 2030, the 462-megawatt “Carbon Free Power Project” had already suffered major setbacks. Prices for power had doubled, and a number of towns pulled out of the agreement.

The development is a “railroad track warning signal for SMR design,” says David Schlissel, director of resource planning analysis for the Institute for Energy Economics and Financial Analysis, an Ohio-based think tank. He believes that Utah “dodged a financial disaster.” UAMPS also serves towns in Arizona, California, Idaho, Nevada, New Mexico, and Wyoming. “Communities don’t want to tie their fate to expensive new technologies where there is a risk that costs will go up dramatically,” Schlissel says.

With this huge deal in the works, shouldn’t residents get clued in? In a November Cardinal News op-ed, April Wade, executive director of the Virginia Nuclear Energy Consortium, another public-private group of “stakeholders,” stressed that “no site has been selected” and that “in the case of any site eventually considered, there will be ample time for public comment.” The project has gone pretty far already. That seven proposed sites are already on the table came as a surprise to local residents.

Good citizen engagement means “mostly being transparent, providing information, being proactive, letting people feel like they have a stake far in advance,” says John E. Parsons, deputy director for research at MIT’s Center for Energy and Environmental Policy Research.

As far as political support goes, many of the region’s local officials and state lawmakers are on board with Youngkin’s moon shot. But the governor’s recent moves backhand the very voters who went massively for him in 2021. Sharon Fisher, the Clinch Coalition president, has been canvassing Wise and Scott County residents about the project. Most of the people she talked to hadn’t heard anything about it. When more

In July, Plant Vogtle in eastern Georgia became the first new nuclear power plant to come online in more than three decades.

Data centers demand massive amounts of energy, which likely spurred interest in co-location with SMRs. sumers could save $676 per household if the state remained in RGGI through 2030. Tellingly, Dominion and NuScale got a shoutout in the state energy plan.

Not surprisingly as far as residents were concerned, the governor also unveiled his energy framework under a cloak of invisibility at an invitation-only event. “Community members and other stakeholders were not informed about the announcement nor were asked to contribute comments,” the Virginia Council on Environmental Justice observed in its 2022 annual report.

If the Youngkin plan undermined renewables in Virginia, the LENOWISCO Planning District Commission’s (the acronym for Lee, Wise, Scott Counties and the city of Norton) SMR feasibility study summed up Southwest Virginia’s curb appeal as “ample brownfield sites, low regional population density, and significant land with low environmental regulatory burden,” as if there weren’t enough humans or wildlife living there to matter much.

Although Duane Miller, the executive director of the commission, has said that the group plans public forums next year, the current plans for nuclear facilities, avoiding dialogues with residents about the sites and the costs, have raised multiple red flags.

Many communities are still trying to move away from extractive business models. Bullit Mine, a possible SMR site, is near the town of Appalachia. With the decline of coal mining, the high-poverty, low-income community has been working on establishing a new identity as an outdoor recreation destination, which new rounds of construction activity could compromise.

Wise County Administrator Michael Hatfield told The Washington Post in February that a possible SMR location, such as a hilltop, means that a site “is not going to be near anybody’s back yard.” But Mineral Gap in Wise County, another proposed SMR site, is near UVA’s Wise College and hundreds of feet away from a school playground

and a drinking water source, Smith says.

Another possible site in Dickenson County is near the Red Onion State Prison. Over time, some mine lands have turned into wetlands that provide critical habitats for wood ducks and other resident and migratory birds as well as spotted salamanders and mountain chorus frogs, two species at risk because of habitat loss.

There are also concerns about the stability of mine lands and constructing buildings on them. Virginia Cooperative Extension papers raise the issue of construction on reclaimed mine lands: “All recently reclaimed land in surface mined areas should be considered as potentially unstable ground.” Builders would need to implement special procedures to deal with ground settlement and other geologic features to avoid future damage to buildings. Stabilizing these lands could raise construction costs. Future environmental reviews would need to take these issues into consideration.

Federal energy dollars heighten the region’s investment appeal. The Biden administration has provided funding for regional abandoned mine land projects through the bipartisan infrastructure law; in the program’s first year, Virginia received $23 million. The Department of Energy has steered millions to SMR projects, and NuScale and other companies have been among the beneficiaries. LENOWISCO, the regional planning agency, could also access Inflation Reduction Act tax credits for SMRs. But data centers demand massive amounts of energy and land, which likely spurred the Youngkin administration’s interest in co-location with SMRs in the Southwest. Northern Virginia currently has the largest concentration of data centers on the planet—and attendant local land use controversies. A plan to house nearly 30 million square feet of data centers on about 2,100 acres in Prince William County has pitted historical and archeological preservationists, among others, against local officials and others keen to reap the tax revenues and “world-leading” technology cachet that neighboring Loudoun County now enjoys. Using the unrealized promise of SMRs to attract data centers would be an expensive proposition.

“I would love to see private investment get this further along before we start betting ratepayer dollars,” says Nate Benforado,

senior attorney for the Southern Environmental Law Center. “To me, it still seems like we’re in sort of this early R&D stage.”

Monopoly utilities’ nuclear projects in the Southeast have track records of construction delays, cost overruns, and in some cases, outright failures. Georgia Power’s notorious Plant Vogtle project in Waynesboro, Georgia finally began generating power in April, seven years late and $17 billion over budget. And now there’s the NuScale-UAMPS case. (The Department of Energy had allocated $1.3 billion over the next ten years to the plan.) The technology isn’t moving fast anywhere else either. The only SMR in operation in the world is a floating SMR facility in northern Russia. “Cost is something that people need to be worried about,” says Parsons of MIT. “It’s really important for your public regulators to do their due diligence and to protect ratepayers. There’s no reason to make your average customer in Southwest Virginia pay a larger electric bill.”

Democratic control of the Virginia legislature (the Democrats flipped the House of Delegates in the 2023 elections) could affect Youngkin’s SMR designs. Some Democrats have supported nuclear investments; others favor concentrating on wind and solar projects. State lawmakers need to take a long hard look at the NuScale-UAMPS failure before moving forward with the SMR segment of this energy project. “The history of the nuclear industry has been a series of unpleasant surprises,” says Schlissel.

The governor’s SMR public strategy appears to be based on finalizing as much as possible before residents can raise questions or, worse, object. Smith, of the Clinch Coalition, a self-described agnostic on nuclear energy, calls for more fact-finding and public engagement from state and local officials instead of relying on the “promotional noise” of press releases.

Plus, the residents of coal country who have borne those environmental and social burdens for decades are now faced with another extractive scheme. “Plowing ahead and not involving those community members while saying, ‘Look, we’re going to come and put this new project here that potentially carries environmental and safety risks’ was really problematic,” Smith says. “I don’t think it’s really moving the needle away from our historic mode of economic development, which is, if you live here, there’s a small, outside group of individuals who are going to make decisions for you.” n DECEMBER 2023 THE AMERICAN PROSPECT 15

16 PROSPECT.ORG DECEMBER 2023

The far right has a plan to remake America. They even wrote it down.

By Harold Meyerson

ILLUSTRATION BY ROBERTO PARADA

It’s not like we haven’t been warned.

Should the Republican presidential nominee (likely Donald Trump) win the election next year, conservatives have been pretty clear about what they intend to do. In fact, explicitly clear.

Trump himself isn’t much on policy, of course. The 2020 Republican National Convention was notable chiefly because, at his behest, it made no effort to pass a party platform, effectively giving Trump carte blanche for whatever he wished to do in his second term.

But Trump’s all-too-personal vision for a second-term agenda is now leaking into the press. According to stories in The New York Times and The Washington Post, it begins with transforming the Justice Department into an instrument of his vengeance, initially against those first-term appointees Trump thinks betrayed him: former Attorney General Bill Barr, former chief of staff John Kelly, former Joint Chiefs Chair Mark Milley, and others who opposed his attempted seizure of power. Then comes filing charges against Joe Biden and his family, with the substance yet to be determined.

To this end, Trump is assembling a cadre of lawyers who supported his attempt to cling to the presidency, and who won’t be deterred from doing his bidding—as those

wusses from the Federalist Society were— by the niceties of constitutional law. A leading figure among these l’état c’est Trump legal eagles is Jeffrey Clark, a Trump Justice Department official who during the plot to overturn the 2020 election countered a White House counsel’s argument that Trump’s putsch would lead to “riots in every major city” by noting, “That’s why there’s an Insurrection Act”—a law that allows the president to deploy the Army to quell protests. That exchange is quoted in the federal indictment of Trump for fomenting the January 6th insurrection. (The Post indicates that Trump is plotting to invoke the Insurrection Act on the first day of his presidency: January 20, 2025.)

At a recent campaign event in New Hampshire, Trump stumbled into a rationale for going after Biden, should he win the 2024 contest. “This is third-world country stuff, ‘arrest your opponent,’” Trump said.

“And that means I can do that, too.”

If nothing else, that quote explains why Trump is seeking more lawyers like Jeffrey Clark.

But Clark’s current ambit isn’t confined to Mar-a-Lago. He’s also part of Project 2025, an initiative of the right-wing Heritage Foundation, which, in collaboration with

over 80 other far-right groups (including the Center for Renewing America, where Clark is a senior fellow and director of litigation), is laying out the tasks and recruiting the candidates that the next Republican president must employ to de-woke-ify America, banish liberalism, and extirpate modernity.

When the Post reported that Clark is leading a study on how to implement the Insurrection Act, a Heritage Foundation official quickly sought to assure the wider world that “there are no plans within Project 2025 related to the Insurrection Act or targeting political enemies.”

Oh really?

Earlier this year, Project 2025 published a 920-page manifesto called Mandate for Leadership: The Conservative Promise, laying out its agenda for Trump or any other Republican who should win the White House.

The book consists chiefly of the world’s longest enemies list, with detailed instructions on how to target them, oust them, and reverse their policies, both real and imagined.

I’ve read every damn page of that book.

Here’s what it says.

This is not the first time Heritage has sketched out a blueprint for a conservative presidency. In 1980, the think tank aided DECEMBER 2023 THE AMERICAN PROSPECT 17

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This edition of the Heritage Foundation’s guide for the next Republican president is tailored to the likely nominee’s thirst for vengeance.

encounters boilerplate affirming the importance of hiring qualified experts. Writing about the CIA, one author apparently on autopilot says that the administration must avoid selecting intelligence leaders “for their policy views or political loyalties.” But when fully conscious of who he’s advising, he gets down to the real stuff, writing, “The President-Elect should choose a Deputy Director who, without needing Senate confirmation, can immediately begin to implement the President’s agenda.”

That last part is critical. For Project 2025, speed is at a premium, lest career officials persist in doing their jobs. Besides, a Democratic Senate or even a Senate with a narrow Republican majority may resist approving a number of Trump’s more outrageous appointments. Jeffrey Clark as attorney general? Michael Flynn running Defense?

All the more reason why deputy directors who don’t need Senate confirmation should take power immediately to begin Trump’s war on his so-called “vermin.”

Waiting for Senate confirmations, some of which are still pending for the Biden administration nearly three years into his

presidency, does not align with this wholesale takeover of government. And this is where Heritage’s knowledge of the federal vacancy process becomes useful.

Under the Federal Vacancies Reform Act, for most federal agencies, a vacancy at the top means that the next available deputy becomes the acting head. Project 2025 sees a path to manipulating this law to ensure loyalists take control.

“Where a career employee holds a leadership position,” explains Ken Cuccinelli, the former acting deputy homeland security secretary under Trump, “that position should be deemed vacant for line-of-succession purposes, and the next eligible political appointee in the sequence should assume acting authority.” Other authors call for political appointees to be put into the line of succession directly, “selected by the President-elect’s transition team” and “in place the first day of the Administration.”

This gambit would hand over the administrative state to those dedicated to crushing it. That would combine with the restoration of Trump’s October 2020 “Schedule F”

RON ADAR / SIPA USA VIA AP

another neophyte politician with revolutionary aspirations—Ronald Reagan—with a report, also called Mandate for Leadership, that stretched to 1,100 pages and covered virtually every nook and cranny of government. Heritage boasts that Reagan took up the majority of their proposals, including across-the-board tax cuts, “Star Wars” missile defense, inner-city “enterprise zones,” and a hard line with the Soviet Union. On the latter, Heritage claimed that “Reagan sticks so closely to the Heritage suggestions that [Mikhail] Gorbachev complains to Reagan about Heritage’s influence in the first few minutes of the [1986 Reykjavik] summit.”

A subsequent edition of Mandate for Leadership has been produced for every presidential election since 1980. This iteration, very much in the spirit of Trump, is lighter on policy and heavier on retribution.

Its enemies list begins with the usual targets of right-wing ire: welfare recipients, lazy and liberal civil servants (since they’re liberal, one might think Heritage would be heartened by their laziness), anti-business regulators, environmentalists, and union bosses.

But it expands from there to include more recent bêtes noires: scientists, woke bureaucrats, woke educators, woke diplomats, woke generals and admirals, woke G-men, and anyone who doesn’t indulge the next Republican president’s every whim (an adaptation to the likelihood of a Trump nomination).

The particular frustrations Trump encountered when federal employees pushed back at his more lunkheaded notions loom large in Heritage’s assessment of the federal workforce, which the book’s editors describe as “largely underworked, overcompensated, and unaccountable.”

No matter what department or agency is under discussion in this volume, their officials’ and employees’ adherence to the president’s policies and piques should be their primary, if not only, task. When dealing with the State Department, the book advises, “the next Administration must take swift and decisive steps to reforge the department into a lean and functional diplomatic machine that serves the President.”

If that requires a purge, so be it. The authors advise the incoming administration to identify and interview every Treasury Department official who participated in its DEI (diversity, equity, and inclusion) activities and programs, and make such activity “per se grounds for termination of employment.”

In a 900-page book, one occasionally

P

roject 2025

sees a path to

manipulating the Federal Vacancies Reform Act to ensure loyalists take control.

order, which would reassign up to 50,000 civil service workers with a designation that robs them of employment protections, making them easier to terminate. So the leadership of executive branch agencies would be ideologues, and many bureaucrats under their care could be fired at will.

Republican candidates have warmed to this vision. Vivek Ramaswamy has said that if elected, he would fire more than 75 percent of the federal workforce, and disband such agencies as the Department of Education, the Food and Nutrition Service, the Nuclear Regulatory Commission, and the FBI. In short, Heritage’s directions for Day One presidential appointments come straight out of Macbeth’s musings as he ponders the timing of his imminent murder of Duncan, his king: If it were done when ’tis done, then ’twere well It were done quickly.

The Republican need to banish the ostensibly woke is nowhere clearer than in Heritage’s agenda for the armed services. Picture Sen. Tommy Tuberville (R-AL) and his viewpoints

(such that they are), only inside the Pentagon.

Project 2025 sees a Defense Department that “has emphasized leftist politics over military readiness,” and makes an impassioned plea to DOD to “eliminate Marxist indoctrination.” (You didn’t know that all recruits are required to read Volume III of Das Kapital?)

As Heritage sees it, the military stinks from the head down. “Most officers, especially below the rank of general or admiral, continue to be patriotic defenders of liberty,” they affirm. But those generals and admirals, boy oh boy. Accordingly, Heritage advises the National Security Council to “rigorously review all general and flag officer [admiral] promotions to prioritize the core roles and responsibilities of the military over social engineering and non-defense matters, including climate change, critical race theory,” and many more. This amounts to providing an ideological test for the military leadership.

The other stalwart defenders of traditional American values that Heritage thinks have gone awry are the Justice Department, and the FBI in particular. Sinister Attorney General Merrick Garland, they lament, has “devoted unprecedented resources to prosecuting American citizens for misdemeanor trespassing offenses,” which sounds a lot like a complaint against the prosecution of the January 6th insurrectionists. Worse yet, Justice also “sued multiple states regarding their efforts to enhance election integrity,” which of course refers to the states’ efforts to suppress voting.

We’ve already seen that conservatives want the power to shape Justice Department discretion on who to prosecute. But according to the Heritage book, the president should also be able to “terminate” FBI investigations and activities that are “contrary to the national interest.” Who is charged with determining what’s in or contrary to the national interest? They don’t say it, but you can take a guess: the president, as long as they’re a Republican.

Virtually every chapter of Mandate for Leadership comes with suggestions for privatizing governmental functions, deregulating industries, or just plain helping corporate America make more money.

Some of these would require congressional sign-off, a bold break from Heritage’s main preoccupation with centralizing power. Heritage recommends lowering the corporate income tax to 18 percent and the tax on capital gains and dividends to

15 percent. As for those employers foolish enough to provide their employees with not just wages but benefits, Heritage suggests changing tax law so that those employers can deduct no more than $12,000 in an employee’s benefits from their taxes.

That, of course, could hold down employer expenses on benefits, a boon for employers, if not for their workers.

Each chamber of Congress should require a 60 percent supermajority for any tax hikes, Heritage proposes. That is already practically in place for the Senate thanks to the filibuster, but this supermajority would extend to the House, too—and only for taxes. Project 2025 further calls on Congress to repeal the Federal Reserve’s mandate to promote full employment. Inflation reduction, no matter how many Americans it throws out of work, is what matters.

The chapter devoted to the Defense Department suggests ending congressional review of arms sales to foreign countries, which hit an all-time high in 2018 (when Trump was president) of $56 billion.

The to-do list for Transportation calls for privatizing the TSA, to “bring private-sector know-how to government programs” (like, presumably, the airlines’ expertise in passenger boarding and seating).

But these are by and large wish lists. The proposals for economic regulations, which the next Republican president’s new teams of functionaries will carry out themselves, reveal the deeper dangers of the agenda.

On that perennial area of Republican expertise, health insurance, Heritage suggests that the government should “make Medicare Advantage the default enrollment option” for people getting into the system, so that private health insurers can make more money and seniors’ health care options can be limited. That could be accomplished by the Centers for Medicare & Medicaid Services.

Heritage also requests a regulatory change to Medicaid co-payment levels, so that recipients are required to pay for the services they receive “at a level that is appropriate to …” You think it’s going to say “appropriate to their ability to pay”? No. The sentence actually concludes: “appropriate to protect the taxpayer.”

As for student loan recipients, Heritage wants the government to phase out incomedriven repayment plans that hold repayment levels to a percentage of the payer’s income.

The Education Department created those programs and could dissolve them.

Heritage also has some suggestions for DECEMBER 2023 THE AMERICAN PROSPECT 19

regulatory enforcement agencies. It calls for a limit on the amount of time the Securities and Exchange Commission can spend on investigating financial chicanery to two years. That may need congressional authorization, but a loyalist at the SEC could initiate that as a norm by themselves. And there are admonishments to agencies like the Commodity Futures Trading Commission and the Consumer Financial Protection Bureau to simply cease making rules. Much of what the new conservative leadership will do with these enforcement agencies is to give the impression of being busy without doing anything at all.

“The Biden Administration’s climate fanaticism will need a whole-of-government unwinding,” Heritage tells us, and proceeds to explain how that can be done. First, they want Congress to repeal the Inflation Reduction Act’s tax credits for clean-energy companies, a rare example of a conservative endorsement of tax increases.

But the real agenda here is ensuring that climate change deniers are appointed to the relevant agencies. To that end, Heritage suggests reforming EPA’s Science Advisory Board “to ensure independence, balance, transparency, and geographic diversity,” which are all admirably creative euphemisms for climate deniers. Just in case EPA’s scientists persist in mapping out the planet’s future, the administration should revive Trump’s ban on the use of cumulative impact analysis in assessing environmental risks. And just to snuff out any further resistance to the president’s mandates, the administration should impose a rule on EPA that it “will not conduct any ongoing or planned science activity for which there is not clear and current congressional authorization.” Inquiry itself, then, is banned.

In its current state, American science is just too woke—which in this case means too empirical—for Republicans. “The National Labs,” Heritage laments, are “too focused on climate change and renewal technologies.”

The Office of Oceanic and Atmospheric Research is a “source of much … climate alarmism” and thus should be downsized.

Getting scientists out of the policy business is the overriding goal of any incoming Republican administration. The Centers for Disease Control and Prevention and the National Institutes of Health are primary anti-Fauci targets of Heritage ire.

They are “the duo most responsible—along 20 PROSPECT.ORG DECEMBER 2023

with President Joe Biden—for the irrational, destructive, un-American mask and vaccine mandates that were imposed upon an ostensibly free people.” The CDC, in whatever reduced form it may continue to exist, should have “severely confined ability to make policy recommendations.”

But do not let it be said that Project 2025 rejects all critical research. The book stresses that the CDC should “fund studies into the risks and complications of abortion.”

The incoming Republican president, Heritage makes clear, should not be daunted by the public’s overwhelming rejection of the Dobbs decision and support for abortion rights. The Department of Health and Human Services “must ensure that all HHS programs and activities are rooted in a deep respect for innocent human life,” and like that federal judge in Texas, do what it can to ensure that mifepristone, the abortion medication, is made illegal.

It should also withhold Medicaid funds from states that require insurers to cover abortions. These could all be carried out by the administrative state.

Republicans, Heritage makes clear, should put Christian nationalism at the center of policy and statecraft. On matters of LGBTQ rights and gender identity, the government must uphold the rights of religiously inspired bigots to violate civil rights laws by denying services to those whose practices or identities offend them. In its discussion of the nation’s Middle East policy, Heritage avers that “special attention must be paid to challenges of religious freedom, especially the status of Middle Eastern Christians and other religious minorities.” As to Palestinians, Heritage’s policy brief is brief, indeed.

In its entirety, it reads: “The Palestinian Authority should be defunded.” Even before the current war, this pouring of oil on fire was as idiotic as it was callous.

When it comes to encasing bigotry in policy, Heritage gives the next Republican president a lot of leeway. The president should give the HHS secretary the power to deny admission at the border (or ports, or airports) to “persons from such countries or places as he or she shall designate” to avert or curtail mass migration. That would seem to encompass, for instance, Trump’s ban on immigrants from “Muslim countries” that he sought to establish as president, which he has vowed to bring back and expand. Next time, says Heritage, the president should

F

or regulation

that Heritage wants implemented, it sees a way for the chief executive to just unilaterally suspend administrative procedure.

stipulate that such orders “shall not be subject to the requirements of the Administrative Procedures Act.” Now there’s quite a tell. The Administrative Procedure Act establishes the procedure for creating regulations, with a public comment period and compliance with various guidelines. It has typically been something that bogs down regulation, which Heritage would usually appreciate. But for regulation that Heritage wants implemented, it sees a way for the chief executive to just unilaterally suspend administrative procedure. This would invite a court challenge, but you may remember the state of the Supreme Court, which hangs over this entire project as a reminder of how much easier it may be to enact this radical agenda.

A few of Heritage’s suggestions evoke simpler solutions from earlier times, such as linking the value of the dollar to the gold that the government holds, or at least once held, in its vaults, a policy that ensured long and severe depressions throughout the 19th century.

But the complexities of today have required Heritage to acknowledge that there’s not yet a consensus on the right on several key poli-

JESS R APFOGEL / AP PHOTO

The Heritage Foundation has boasted that past presidents have adopted half of their recommendations or more in the first terms of their presidencies. cies. And when it can’t lay down the line of what conservatives should do, Heritage lays down two lines and lets conservatives pick one, or try to muddle through.

On what to do about the war in Ukraine, for instance, Heritage presents an argument for continuing U.S. aid and another for stopping U.S. aid. On the question of free trade, the right’s unified opposition to China has been a major factor behind the critique some have leveled at the global investments, and global dependence, of American corporations and banks. That critique is fully voiced in a chapter by Trump trade counselor (and fellow election denier) Peter Navarro, in which he also documents the damage that offshoring has visited on American workers. Navarro’s arguments are countered in another chapter by Kent Lassman, who not only argues for limitless free trade, but also makes clear his opposition to including any labor or environmental standards in trade accords.

In the book’s section on antitrust policy, two opposing views are presented within the same chapter. Most of the discussion follows the pro-business conventional wisdom as propounded by Robert Bork, that

concentration is fine so long as it doesn’t raise the prices consumers must pay. But the author also acknowledges that “many large U.S. corporations are earning substantial incumbency rents,” and frets about the undue market power exercised by platform monopolies. Indeed, he actually faults the Obama administration for opting not to prosecute Google in 2013 for its monopolization of the search function.

Even the chapter on labor and collective-bargaining rights, to which almost all Republicans remain unalterably opposed, contains some blips of pro-worker sentiment. The chapter’s author acknowledges some input by Oren Cass, who heads up the GOP’s small and relatively pro-worker wing.

This may explain why it includes a debate on repealing the Davis-Bacon Act, which requires the payment of prevailing wages to workers on federally financed projects, rather than just a straight call for termination.

Astonishingly, there’s one suggestion (surely from Cass) that unions should have the right to get court injunctions (10(j) injunctions, they’re called) to require employers to immediately rehire workers they’ve fired in the midst of an organizing campaign. That

puts Heritage in line with Biden’s National Labor Relations Board.

Alas, most of the chapter calls for reversing gains that workers have only begun to make at Biden’s NLRB and Labor Department. Heritage wants to limit the number of workers eligible for overtime pay, relieve corporations of liability for violations of workers’ rights that their franchisees may make, and insist that workers are independent contractors, not employees entitled to certain wages and benefits, if their employer says so. Workers should not be able to win union ratification if a majority sign affiliation cards. They should be given a seat on publicly traded corporate boards, but only if it’s nonvoting. (I’d term that non-co-determination, or simply, a device enabling workers to determine nothing at all.) Perhaps worst of all, Heritage suggests a new law that permits states to get “waivers” from the National Labor Relations Act for a five-year period in which they can try to demonstrate that their workers will fare just as well without a right to bargain collectively as with it.

Finally, there’s one proposal that nicely mixes Christian nationalism with better pay for workers: requiring employers to pay time and a half to workers whom they compel to work on the Sabbath. If your offdays normally come in the middle of the week and you’re compelled to work on one of them, looks like you’re denominationally out of luck.

Mandate for Leadership is more than a book; it’s a recruitment poster. Its organizers want to use it to attract like-minded conservatives into Washington, with the promise of political appointments. “People need to lay down their tools, and step aside from their professional life and say, ‘This is my lifetime moment to serve,’” said the director of the project, Paul Dans, to the AP. Project 2025 even ran a booth at the Iowa State Fair looking for recruits.

It concludes with an afterword by Ed Feulner, Heritage’s founder, who brief ly runs through its previous editions and notes that Ronald Reagan implemented “almost half” of their recommendations in his first year as president, while Trump implemented 64 percent in his first year.

What Feulner doesn’t note is how autocratic, theocratic, and downright unhinged the current edition is when compared to its predecessors. But in that, it merely is tracking the descent of the entire Republican Party. n DECEMBER 2023 THE AMERICAN PROSPECT 21

A Google tried to withhold practically every critical detail from the public in its monopolization case. A band of advocates and journalists fought back.

By Luke Goldstein ILLUSTRATION BY NOLAN PHILLIPS PELLETIER

22 PROSPECT.ORG DECEMBER 2023

t the end of week six of the U.S. v. Google antitrust trial, the last session before a long weekend, the pact between judge, plaintiff, and defendant suddenly unraveled. Inside Courtroom 10 at the federal district courthouse in Washington, it was business as usual. Witnesses had been sworn in, questioned, cross-examined, reexamined, and excused. The respective legal teams jousted at the stand and returned back to their opposing tables. The judge, Amit Mehta, draped in black robes, often with a red tie peeking out, sat austerely behind the bench. Reserved and professorial, the Obama appointee took notes on a laptop passively, as if conducting a seminar discussion, interjecting occasionally to prompt further questions of the witness or rule on objections.

The two trial teams huddled at their tables.

Reporters in the press section snapped their notebooks closed, awaiting further housekeeping matters from the judge. This daily routine had become normal for the small cadre who’d been showing up day in and day out: government officials, lobbyists, an ever-thinning press corps, and lots of lawyers. Some had direct financial stakes in the decision, others reporting assignments, and many were billing by the hour.

For over a month now, they had been bearing witness to the first major monopolization case in 25 years, initially billed as the Trial of the Century, though it had now come to be identified with a more insidious name: The Secret Trial.

Secrecy, in fact, had brought a newcomer to the courtroom on week six. He was here to call into question the proceedings to which everyone had grown accustomed, to shake the justice system and its observers out of their lethargy and acquiescence.

At the judge’s request, the stranger stood from the spectator section and approached the stand. Tall, spindly, in his forties, he wore a dark suit with a blue tie and brown Oxford shoes.

He introduced himself as Al-Amyn Sumar, legal counsel for The New York Times. Earlier that week, the Times, along with a consortium of other publications, filed a motion to challenge the unprecedented amount of obstruction to public access in the trial. “What we’d heard coming out of the courtroom was troubling to say the least,” Sumar later told me.

Their counsel now had the floor to try and persuade Judge Mehta to reverse course.

This wasn’t Sumar’s first encounter inside a contentious courtroom. One of his early cases at the Times involved a jury dispute at the El Chapo trial.

Sumar opened by acknowledging the difficulty of the judge’s decisions in such an unusual case. It was a hedge for the searing comments to come.

He then listed the factors that separated this case from any other his legal team had seen before. Those included numerous closed-door proceedings, withholding of public evidence, and extensive confidentiality claims by companies (not just Google, but secondary parties to the case like Microsoft and Apple) that were granted all too liberally by the judge. Even access to trial transcripts were scant, trickling out weeks after examinations.

In the last major monopolization case, against Microsoft in the 1990s, the public received exhibits the day they showed up in court, Sumar told the judge. It was customary at the time, and helpful for the audience, who could actually follow the examinations, referencing small lines of text on grainy television monitors in the courtroom. Both parties already had to notify one another about which slides they plan to show to witnesses anyway, before starting court for the day.

In the Google trial, as Sumar laid out, press members still could not access the bulk of public exhibits already presented in open court. Media requests to see the exhibits were going unanswered, delayed, or otherwise held up by a byzantine process controlled by the parties involved, though mostly by Google. Even the daily witness list was withheld until the last minute.

Confidential sealing and redactions of documents had also run rampant. Basic facts like Google’s market share were hidden. In one case, an unsealed exhibit redacted data that turned out to be publicly available information about Google gathered from a European Union study.

Google demanded these redactions and delays because they claimed these were business secrets that could hurt them in the marketplace if revealed. But when companies make confidentiality claims because of competitive harms, the burden of proof falls on them to demonstrate why that information was competitively sensitive.

DECEMBER 2023 THE AMERICAN PROSPECT 23

Outside parties, Sumar argued, need to have channels to contest these claims and submit petitions.

Though the Times’ counsel delivered his argument with measure and refrain, his exasperation got the better of him at times.

He punctuated his points with “it’s hard to understand why there’s so much information being denied” and “this simply can’t be the best way to go about the legal process.”

Sumar urged that public exhibits be posted in a timely manner and that a clear process be arranged for outside counsel to argue for the release of sealed documents.

He concluded by insisting that his charges were not merely a matter of norms. Public courts and their presiding judges are required to uphold a level of transparency and press freedoms based on legal precedent. “Impediments in this case to timely public access have a real cost to the public’s faith in the justice system,” said Sumar.

The room was quiet upon the conclusion of Sumar’s remarks. He’d stated plainly in open court what many members of the press had only suspected with partial assurance and voiced privately amongst themselves: This trial had gone off the rails.

Judge Mehta, clearly taken aback by Sumar’s tirade, took a pause before responding. A Justice Department attorney briefly tried to issue a platitude for the record about the government’s commitment to transparency, but the judge cut him off angrily: “Let’s get to the point.” Emotion flashed for the first time from a judge who’d been resolutely stoic thus far.

Mehta then turned back to the Times counsel, stammering: “Where were you six weeks ago when this all began?”

This scene in court, on Thursday, October 19th, was the climax of a courtroom drama that had been building for weeks, a subplot that ultimately came to dominate much of the coverage of a trial ostensibly about the dominance of a tech giant.

I was there, behind the veil of secrecy, watching as a multibillion-dollar corporation, with the tacit help of a deferential judge and even its adversary in the Justice Department, tried to privatize our public court system. Google nearly managed to do so without anyone even blinking, by leveraging its power over the court in much the same way it had wielded inf luence in the technology markets it controlled. The strategy was about both obstruction and intimidation. It instilled a 24 PROSPECT.ORG DECEMBER 2023

sense of learned helplessness among trial reporters, who knew that their grasp of the full case and ability to explain it to readers would be permanently attenuated due to an inability to access basic facts in the public interest.

The Times counsel’s momentary address changed the course of the trial. From the outset, Google vigorously tried to keep under wraps the key figure upon which the entire case turned: how much revenue it hands over to mobile and desktop carriers to secure its position as the default search engine and cement its monopoly status. These exclusionary contracts are the core of the government’s case, and after weeks of outside pressure, the judge finally demanded that Google release the number in open court. It turned out to be far greater than estimates indicated: $26.3 billion in 2021, greater than the annual GDP of Bosnia and Herzegovina and 100 other small nations.

The verdict in the case could very well be determined by that figure, and the saga of how we arrived at its unsealing.

T

he makings of The Secret Trial began well before either side entered the courtroom. In the weeks before the September 12th start date, a number of suspicious occurrences took place that set off alarm bells for antitrust and First Amendment advocates.

For one, Google had been caught purposefully deleting chat histories among its employees, potentially qualifying as evidence destruction while under litigation. A California court sanctioned Google for this conduct, but the judge in The Secret Trial opted not to do so in the pretrial period.

Judge Mehta denied a request by numerous organizations for a public audio line to the trial, even though it had become standard practice since the pandemic.

That meant you had to physically be in the nation’s capital in order to attend or report on the proceedings, with cellphones and electronics off.

The rationale for the audio line was that this wasn’t just an ordinary civil trial. The government’s lawsuit against Google, filed in 2020 by the Trump Justice Department, involved a ubiquitous consumer product used by practically everyone in the country.

In arguing that Google violated the Sherman Antitrust Act, the DOJ was putting one

of the most powerful corporations in human history in its crosshairs by reviving a body of law that many thought had been relegated to irrelevance.

For much of Google’s history, the globe-spanning tech giant wasn’t accustomed to being cast as the heel. It took as its motto “Don’t Be Evil,” and claimed to be a symbol for the new age of American technological prowess in the 21st century.

But its glowing reputation among much of the public faltered after the 2016 election, when the company facilitated Russian disinformation—often willingly—via its centralized information platform. The political backlash also fueled the renewed anti-monopoly movement taking shape in the country; Google became one of its central targets. The movement grew on both the left and the right, swept into the White House, and led directly to the lawsuit to break up Google’s search engine monopoly. The DOJ was also joined by 50 state attorneys general as parties to the case, an uncharacteristically bipartisan showing. The Biden administration filed a separate lawsuit this year against Google’s adtech monopoly as well. Gone were the days of the Obama administration, which met w ith Google officials more than once a week on average throughout his presidency, and whose federal antitrust regulators primarily settled cases with slaps on the wrist.

Google had untold future profits on the line. The government, too, had a lot riding on the case. The trial would be a major test for the new approach to antitrust enforcement adopted by the Biden administration, which loudly pronounced corporate concentration as a signature economic crisis. The showdown in the D.C. district court would feature testimony from some of the most powerful individuals in the world: Google CEO Sundar Pichai and Microsoft CEO Satya Nadella, to name just two.

Hal Varian, Google’s chief economist and the Justice Department’s first witness in the trial

You had to be physically in the nation’s capital in order to attend or report on the trial, with cellphones and electronics

NATHAN HOWARD/ AP PHOTO

turned off.

The moment initially garnered significant media coverage, scrutiny that is critical to enforcing “the people’s law,” as antitrust proponents call the Sherman Act. “What the antitrust movement needs just as much as victories is for the public to be tuned in and engaged,” said Megan Gray, an independent lawyer and former counsel for DuckDuckGo who frequently works with the anti-monopoly groups pushing for the audio line. She attended the majority of the trial in person, because

otherwise she would have barely known about what was happening inside.

G

oogle’s chief economist Hal Varian paced anxiously up and down the hallway outside the courtroom during the afternoon break. Well above six feet and built like a scarecrow, he glided across the hallway with far fewer strides than most, his mop of white hair bobbing along. At the age of 76, Varian’s

illustrious career had brought him through many corridors of power, though a courthouse was not typically one of them. A renowned neoliberal economist with theorems ascribed to his name, a Guggenheim fellow, and a top-level employee at Google, he now found himself nervously awaiting his return to the stand, as the first witness in a trial alleging illegal conduct against the company that he’d helped build up from the ground. An attaché case at his elbow, he sequenced out his steps methodically, as though he were retreating into the realm of equations that he knew so well.

Moments earlier, he’d been grilled on internal memos and emails he authored years back regarding the implementation of a business strategy based on the “power of defaults,” a term he coined. The government alleged that these documents indicated an intent to monopolize by throttling competition.

The journalists lined up along the wall of the hallway, trying to intercept members of the trial teams, who avoided us as though we were carriers of some unknown disease.

Instead, we resorted to watching the tormented strides of the star witness like an exotic bird.

“You think he’s warming up his legs to make a run for it?” a beat reporter for the trade publication MLex asked after a few minutes in a trance.

“No, he can’t, he’s under subpoena,” said the court reporter for Law360, always one for taking things literally.

“Hasn’t stopped them before,” the MLex reporter quipped back. “They ask for forgiveness later.”

On that first day of the trial, the hallways were crawling with reporters and other attendees. The line to get into the courthouse that morning snaked around the building, with some showing up at 6 a.m. to secure a spot inside. “Is this like Coachella for legal nerds?” said an unsuspecting junior attorney from the Kentucky Attorney General’s Office, a party to the case, who showed up later than expected. The showing was a testament to the amount of initial public interest in the case.

Varian’s testimony wasn’t going well for the defense, at least according to the writers of the first draft of history. There was an air of arrogance and dismissiveness to his answers, reminiscent of Bill Gates’s disastrous depositions in the Microsoft trial, which were taped and played across DECEMBER 2023 THE AMERICAN PROSPECT 25

TV news. Like Gates, Varian often disputed the meaning of ordinary words and even questioned simple points by the DOJ’s lead prosecutor Ken Dintzer that later Google witnesses would concede, like the fact that Google’s search engine was more advanced than its rivals because of higher traffic numbers.

Many antitrust experts thought the government’s decision to call Varian as the first witness was a risky yet “bold decision.”

That’s how Biden’s former competition policy czar, Columbia law professor Tim Wu, put it to me in court that day. So far, the gamble seemed to be paying off.

Ken Dintzer was familiar with this type of witness. As a young attorney in the Clinton Justice Department, he’d worked on the Microsoft investigation, saw its ups and downs, and knew the challenges of translating intricate technological jargon into legal parlance. Now, years later, with more salt and pepper in his goatee, Dintzer commanded the examination even as Varian took the public exhibition slides more as prompts for his own whimsical musings than testimonies under oath, rarely answering questions directly.

The goal with Varian was to establish the foundation for the government’s case, which it had laid out earlier that morning in its opening statement.

As far as trial court proceedings go, opening statements provide the only real opportunity for both sides to paint with broad strokes the arguments they are making.

Witness testimony is downright pointillistic, intensively fact-specific, and at times gruesomely laborious.

Dintzer set the stage in his opening first through an analogy for Google’s monopoly.

“This case is about the future of the internet,” he said. The defendant was the “onramp” and “gatekeeper” of the digital world, where human knowledge was stored and most of our commercial activity conducted.

Google would later be described as “a ferry to the island” and “a card catalog” to a digital library of universal knowledge; its algorithm, a “flywheel”; its datasets, a “corpus”; and the user advertising base, a “cranial cavity.”

The government’s argument was twofold. The DOJ had to both detail Google’s dominance in the search market, and then provide concrete evidence that it wielded its power to harm competitors in violation of the Sherman Act. 26 PROSPECT.ORG DECEMBER 2023

Google paid $26.3 billion in 2021 to be the default search engine on browsers and devices like the iPhone.

As early as 2003, a Google memo stated that it was actively “trying to discourage entry by a potential competitor.”

Google, the government alleged, engaged in revenue-sharing agreements with mobile and desktop makers, primarily Apple and Android, to lock in its position as the default search engine across most of the internet.

While we didn’t know at the time the total value of those agreements, Dintzer estimated it was in the billions.

These exclusionary contracts, he said, blocked competitors from getting a foothold in search. By sharing revenue streams,

Google not only created incentives for its corporate partners, like Apple and Samsung, to maintain the default agreements, but dissuaded those companies from developing their own search engines, as evidence would show.

Through the “payola” of default revenue sharing, Google secured massive traffic numbers from users who often didn’t know they were interacting with a default, and didn’t understand that they could switch

to alternatives. Traffic delivered unparalleled scale, which translated to vast troves of data on users Google could use to refine its machine learning.

Data became an insurmountable barrier to entry for smaller competitors.

With scale and data, Google was the premier destination for digital advertisers to target consumers. Google could manipulate adtech markets to increase prices on advertisers and worsen the user experience by placing ads even in the most innocuous queries, as court documents revealed. The state attorneys general handled the adtech part of the argument.

“This feedback loop … has been turning for more than 12 years,” said Dintzer in the opening remarks. “And it always turns to Google’s advantage.”

G

oogle had retorts of its own.

The tech giant turned to an old hand, its chief legal officer Kent Walker, who steered the company through the last government investigation it faced in the early 2010s.

They hired the trial team at Williams & Connolly, a powerhouse Washington law firm quite accustomed to seizing the national spotlight. Founded in 1966 by Edward Bennett Williams, the ultimate Washington legal insider, it had represented Bill Clinton during his impeachment proceedings and Oliver North during the Iran-Contra affair, along with a long list of corporate clients, including Amazon and BP. Williams & Connolly’s John Schmidtlein, clean-shaven and with silver-white hair, handled most of the testimony and delivered the opening statement.

His argument sounded like a sales pitch to investors: Google was dominant simply because it had the best product. Its competitors were just sore losers. As their opening indicated, the strategy would be to cast Microsoft as the foil in the case and

the government as working on Microsoft’s behalf, not for the best interests of consumers or innovation. Schmidtlein took a different interpretation of antitrust law, which he repeated time and again could not “say anything about market outcomes” but merely determine whether or not fair competition took place.

Much of Google’s case focused on its rise to power and positive impact. In the early 2000s, Schmidtlein reminded us, Yahoo had once been the dominant on-ramp to the internet, before Google surpassed it by building a better search engine. Today, Google insisted, it was deeply worried about insurgents like TikTok and Amazon cutting into its market share. This was just the nature of the market at work. At times, Google became self-effacing, downplaying its importance by referring to itself as “grandpa Google,” as some younger audiences call it.

“The government’s claims are outdated,” Schmidtlein said.

Google’s attorney also argued that the default agreements were entirely competitive, since other rivals vied for those contracts and the carriers chose the best product. They had “pro-competitive” knockon effects in outside markets by creating better search products for the carriers, helping Apple outcompete Motorola and BlackBerry, for example.

Hal Varian’s testimony featured the first clash between these opposing interpretations. But the government elicited three crucial pieces of evidence from Varian that ultimately defined the case.

For one, internal communications showed Varian coaching employees not to use certain words that could trigger antitrust concerns, such as “market share.”

Varian disputed the exact nature of these remarks, claiming not to be an antitrust legal expert.

As early as 2003, a memo written by Varian stated that Google was actively “trying to discourage entry by a potential competitor” and sought default status to do so. A key company slide, which Varian commented on at the time, showed that the company knew defaults would “strongly influence choice” for consumers and “could be a powerful strategic weapon for Google.”

In public, Varian famously downplayed the importance of scale and “network effects.” He believed Google did not benefit from the quantity of queries

but simply developed “better recipes” via its algorithm. However, the government revealed that search engine engineers at Google internally dissented against Varian’s assessment and strongly fell on the side of network effects.

The government backed up its examination of Varian with expert testimony from a behavioral economics professor at Caltech, Antonio Rangel, who conducted a study into how consumers actually interact with default settings in search engines. Despite Google’s mantra that “choice is just four clicks away,” Rangel’s assessment found that in Google’s case specifically, the switching cost “generates a sizable and robust bias towards the default.”

A

fter the first week of hearings, The Secret Trial effectively went dark. As the DOJ called upon top-level executives at Google, Apple, and Microsoft to discuss the default agreements, their respective employers pushed for the witness examinations to be held in closed session, without members of the public or the press, because of the allegedly confidential subject matter. Judge Mehta and the DOJ mostly acquiesced.

As a result, fewer reporters started showing up to court, since there was no guarantee that they’d have any copy to turn in to their editors. Even when court came back into session for brief moments that week, it was nearly impossible to follow without knowing the full context of the documents being shown. This state of affairs took the air out of any media and public interest in the case that built during the first week.

Those of us who remained prowled outside the courtroom like house pets locked outdoors for the night, barking at any trespasser. In this case, the trespassers were any lawyers who, upon exiting the courtroom, were immediately pounced on by reporters trying to glean any information on what was happening inside and how long they’d be exiled out in the cold hallway. Under dire straits, certain antics transpired among a restless press corps. That mostly entailed some casual wagers—bets on how much of the proceedings we’d get to see that day or how many times we’d be told “just another 30 minutes or so.”

A group chat emerged among the reporters still hanging around, to inform one another about when court was going DECEMBER 2023 THE AMERICAN PROSPECT 27

back into session. But in hindsight, kicking journalists out of the courtroom might not have been the most prudent way to conduct the trial.

That week, a conflict between the judge and a member of the press, Bloomberg veteran antitrust reporter Leah Nylen, spilled out into the open. The incident led directly to the New York Times lawyers getting involved in the trial.

The dispute began during an examination of Google VP for Finance Michael Roszak, over whether a contentious document could be presented in open court as evidence.

Since the first week, Google had f looded the zone with repeated objections.

Most of the obstruction had to do with the contract details and dollar figures related to its default agreements, extending as far back as its 2007 agreement with Apple, which had long been voided. Even Judge Mehta had expressed frustration with Google for challenging government evidence as “hearsay.” In this instance, he ruled that the document should be withheld, for the time being at least, on the grounds that it appeared to be “embarrassing” for Google.

Schmidtlein, the lead Google attorney, wasn’t finished. He also complained that the DOJ had been posting public exhibits on its website, a source of concern because it could lead to news coverage, or as Google’s trial team referred to it, “clickbait.”

Judge Mehta admonished the DOJ for not informing him that the team was posting exhibits, which generally is standard practice. Google forgot to mention that its side too had been posting select exhibits online.

To avoid Mehta’s wrath, the DOJ quickly agreed to take down the exhibits.

At this point, Nylen stood up from the press aisle of the spectator section to protest this decision. Heads turned, and the judge addressed her directly. Nylen said the exhibits were important evidence of public interest and a matter of press freedoms. Before a final decision was reached, she insisted that a Bloomberg lawyer be present to represent the press’s side of the case.

Asked later what compelled her to stand up, Nylen said: “I was taught as a young cub reporter that if a judge is going to close off the court … it’s your job to get a lawyer in the room.” In over a decade as an antitrust reporter, she had never seen a court “as locked down as this one.”

Nylen’s protest was the moment when 28 PROSPECT.ORG DECEMBER 2023

The Secret Trial grabbed the ear of press freedom watchdog groups. A number of outlets, including this one, ran stories about the level of secrecy, which The New York Times called “unprecedented” based on interviews with First Amendment experts.

Though much of the criticism was directed at the judge, the DOJ took heat as well for not defending the public interest. As Matt Stoller, research director at the American Economic Liberties Project, put it to me: “The DOJ trial team cares about beating Google, not public access to the trial.”

Judge Mehta took notice of the critical headlines. He’d generally taken a hands-off approach to Google’s obstruction efforts, but the following week he called for changes to the procedures. He addressed the media reports, some of which he called “misleading.” But later on, once the Times got involved, he would admit: “I will put it on myself that the court was closed more than it should have … I’ll fess up to that.”

In the weeks following Nylen’s protest, the courtroom remained open for most of the remainder of the trial, a clear victory for public access.

After consultation with a Bloomberg lawyer, Mehta also allowed the DOJ to post their exhibits but under certain conditions.

The DOJ had to let Google review the slides before posting them, and he would only intervene if the two sides informed him that they could not come to an agreement.

This only created further problems, effectively giving Google a veto to delay or obstruct the posting of exhibits. Many of those exhibits had already been presented in open court. Weeks after the judge’s orders, new slides began appearing online, but many of the previous slides taken down from the DOJ’s site still were not available.

The Times motion led to another shakeup of court procedure, with a hard deadline of 48 hours on the parties to post the exhibits that had already appeared in the courtroom. The final stretch of the trial would be significantly more open. $26.3 billion. The number rang out through the courtroom. In the press area, reporters exchanged hurried glances and several stood up to get a closer look at the figures on the monitors to double-check they’d heard it right. The figure was the total amount Google shared in revenues in 2021 to be the default search engine

across mobile and desktop devices, mostly on Apple and Samsung devices.

The reveal did not come during the government’s examination, but during Google’s defense in week seven. With Google’s senior vice president Prabhakar Raghavan on the stand, the government pressed him on the exact monetary value of the default agreements, which thus far he’d only vaguely referred to as important to Google’s operation. The DOJ attorney wanted to pull up a slide and ask him about the full amount under oath. Google objected, per usual, but this time the judge overruled.

As many observers had pointed out, the figure was within the scope of what both Apple and Google, as publicly traded companies, are required to report on Securities and Exchange Commission financial disclosures. Financial analysts already had estimated the figure in the billions. Judge Mehta allowed the DOJ to proceed.

Without the Times’ motion and mounting scrutiny on the confidentiality claims in the trial, Judge Mehta likely would not have felt compelled to force Google’s hand.

In the first weeks in court, any discussion of the details of Google and Apple’s default agreement went into closed session. But the total figure put an exclamation mark on the government’s case that these payments were essential to maintaining Google’s monopoly.

Much of Google’s cross-examinations tried to downplay how much the default deals mattered to the company. Its legal team suggested that users would use Google anyway because it was a better product. Attorneys pointed to the sizable number of users on Windows computers who still opt to use Google’s search engine, even though it’s not a default. But when Microsoft decided in 2005 to default the Internet Explorer browser to its own search box, Google vigorously complained, in a document released at trial, saying that it would create “harm to the competitive process.”

The $26.3 billion was more than 10 percent of Google’s total revenue in 2021. We later learned that Google hands over to Apple 36 percent of ad revenue collected from its devices, which might be as much as $20 billion by some estimates. These figures put in perspective just how much Google values default placement and makes it hard to believe the company would share such a huge portion of its revenues if it didn’t believe it had to. Those shared revenues had also grown threefold since 2014 after

Judge Amit Mehta, who will decide the case

Unsealing of evidence in the final weeks bolstered public awareness about what the DOJ managed

STAN HONDA / AP PHOTO

to elicit from witnesses. renegotiated default agreements. Moreover, the number shined a light on why Google’s corporate partners were so receptive to the tech giant’s demands: They didn’t want to lose out on a massive revenue source.

In questioning of Apple executive Eddy Cue, the DOJ elicited that Apple entertained developing its own search engine. When Google caught wind of it, they made clear that such development would threaten the revenue-share agreement. That was also true when Apple considered implementing a choice screen for Safari browsers, so users could select their default search engine instead of receiving it preinstalled. As repeated time and again, the demand to partners was constant: “No default—no revenue share.”

The government called the heads of several search engine startups to attest to the challenges they faced getting a foothold in the market. Each of them cited direct con-

versations with mobile carriers and original equipment manufacturers that curtailed the discovery of their products, because of concerns about violating the default agreements with Google.

Alex Austin, CEO of the startup Branch Metrics, said their search engine was never fully discoverable on mobile or desktop because of restrictions imposed by carriers so it wouldn’t siphon off any traffic from Google.

In one particularly revealing testimony, the government called a former Google employee, Sridhar Ramaswamy, who went out on his own to develop a privacy-focused search engine alternative called Neeva. He knew Google’s operations from the inside, especially the power of defaults, but thought he might be able to overcome it. He couldn’t.

“The payments effectively make the ecosystem exceptionally resistant to change,” said Ramaswamy.

The $26 billion was far more than Google invested in research and development, as the DOJ highlighted. That comparison is crucial for another part of the government’s case: that Google abused its monopoly by degrading the quality of product it delivered to consumers.

In fact, documents showed that Google’s VP for finance Mike Roszak bragged in a company memo that it didn’t really have to improve the user-facing side of its operation because its revenues were coming from advertising. This was the hidden document that Mehta called “embarrassing,” and sparked Nylen’s protest from the stands.

“Search advertising is one of the greatest business models ever created,” Roszak wrote. “We’ve essentially been able to ignore one of the fundamental laws of economics—businesses need to worry about supply and demand … we could mostly ignore the demand side of the equation (users and queries).”

According to Roszak, only high-demand illicit businesses like “drug markets” and “cigarettes” could compare to Google’s profit model.

The government also tied Google’s worsening user experience to its ability to manipulate advertising markets. Google could turn the screws on advertisers by jacking up rates on ad spots on a whim whenever it needed to hit its quarterly profit benchmarks. In 2019, Google’s VP overseeing advertising, Jerry Dischler, directly cited “pricing knobs” and “tuning” in a company email, requesting his team increase ad revenues for the quarter by around 5 percent.

All this information came from testimonies later in the trial, after the pushback on secrecy. Unsealing of evidence in the final weeks bolstered public awareness about what the DOJ managed to elicit from witnesses. A full compilation of trial documents and transcripts dating back to the first day are now available on the website of The Capitol Forum, an investigative news service.

The outside pressure campaign managed to open up the trial, and could have bearing on the verdict in the case, set for early in the new year. Instead of ruling on a secret trial, Judge Mehta will have to reckon with what is already available to the public.

“Public opinion should be taken seriously for these types of cases,” said Megan Gray on a webinar about the case, “because judges aren’t impervious to it.” n DECEMBER 2023 THE AMERICAN PROSPECT 29

By David Dayen When Katie Anderson formed a limitedliability company in Northglenn, Colorado, to support her insurance sales business, she named it Kalaco. That stood for “Katie Anderson Loves Aflac Company.” Like the vast majority of Aflac’s workforce, Katie was technically not an employee; she was a 1099 independent contractor. But you wouldn’t know it from speaking to her.

Anderson was enthusiastic about Aflac from the moment she interviewed for a position in 2010. “The two things that they really sell everybody on and sold me on was the idea of running your own business and growing your own company,” Katie told me.

“And then the other thing they lean into: ‘You are a part of something so great. This is the world’s most ethical company.’”

Some people just have a personality for sales, like Katie, a California transplant who got her start selling memberships at fitness clubs. Her husband Jason would say that she “didn’t understand how people could feel depressed. She thought depression was like 30 PROSPECT.ORG DECEMBER 2023

a choice, and she just thought, why do that when you can choose to be happy?”

Katie rose from an entry-level associate to a district and then regional sales coordinator, running an office with 40 agents.

The team she put together, which included Jason, at one point opened up more accounts than any of Aflac’s 3,000 districts across the country, she said. Katie made “President’s Club,” a prestigious award for sales agents, four times. Managers and subordinates praised her performance. “She was a leader, organized, thorough, knew her stuff,” said Charia Anderson (no relation), who worked for Katie at her Denver-area office.

In August 2018, Katie was asked to attend an invitation-only meeting of regional sales coordinators in St. Louis, Missouri, called Galaxy Group. She hoped it would propel her into a market director role, which carried responsibility over more territory and, importantly, employee status. “I really knew where my career was going and what I was going to do,” she told me.

Almost five years later, in May, Katie was on a witness stand, testifying in a civil case against an Aflac business development director, Jeffrey Hansen, whom she accused of raping her in a hotel room during that Galaxy Group event. Less than a year after the assault, she would no longer be selling for Aflac.

You shouldn’t know this story, and I shouldn’t be able to tell it to you. For decades, the prime strategy of corporations when it came to sexual misconduct in the

ALEJANDR A SOL CASAS

Katie Anderson’s story shows the difficulty of finding some measure of accountability after being sexually assaulted.

Katie Anderson, at her home in Helotes, Texas

DECEMBER 2023 THE AMERICAN PROSPECT 31

The ubiquitous Aflac duck is the insurance giant’s quirky mascot.

workplace was to sweep it under the rug.

Since the #MeToo movement began, we’ve heard lurid details about famous abusers like Harvey Weinstein and Bill Cosby. But employers eager to avoid bad publicity go to great lengths to suppress lower-profile misconduct that happens inside their companies. They reach settlements with victims that include nondisclosure and nondisparagement agreements. They quietly sideline perpetrators. They establish accountability on their terms, with the priority of protecting the company.

The only reason I can report on Katie’s case is that the confidential settlement she and Jason reached with Aflac specifically allowed for future litigation against Jeffrey Hansen. The Andersons then filed a civil 32 PROSPECT.ORG DECEMBER 2023

suit, after prosecutors in St. Louis declined to bring criminal charges. The trial allowed Katie to publicly discuss the incident, a rarity in workplace cases where the employer exhibits so much control.

At trial, Katie testified about the anguish and emptiness in the days and years after the assault. “I loved what I did with Aflac so much,” she said. “I never wanted to do anything else … I fully understand what it feels like to be broken and feel like worthless, and suicidal, and all of these things.”

Last year, Congress passed two laws, preventing companies from blocking access to courts and invalidating certain nondisclosure agreements in sexual misconduct cases. The measures, which extend to 1099 workers like Katie, were intended to bring

sexual assault in the workplace out from the shadows. But re-exposing oneself to the abuse can often sound more attractive as an option than in reality.

Katie told me that she aimed to become a model for other women who may not understand their rights as workers and how fleeting they can be, especially as independent contractors. “There are so many 1099s that come into the insurance industry and financial services,” Katie told me. “They don’t know that if they are assaulted, they have no help.”

Katie was working on about three hours of sleep when she boarded an early flight from Denver to St. Louis on August 29, 2018. Two other regional sales coordinators from Colo-

ANTHONY BEHAR / SIPA USA VIA AP

Katie aimed to become a model for other women who may not understand their rights as workers and how fleeting they can be. rado, Laura Marcotte and Aspen Madrid, were invited to Galaxy Group with her, and after landing they all decided to have lunch.

Katie saw Marcotte and Madrid as work acquaintances, not friends. She previously worked for Marcotte, leaving after she was promoted and taking some of Marcotte’s agents for her team; there was some tension there. All three women worked with their spouses at Aflac, and at lunch they talked about the stresses of that. Katie noticed that in the rush to leave for the airport, she had forgotten her wedding ring.

Galaxy Group started with a four-hour meeting at the Aflac offices across the street from their hotel, a Courtyard by Marriott.

Afterward, a bus would take them to dinner.

In the hotel lobby, Katie had a glass of cabernet, which was common at these events.

“The number one thing is alcohol, there is a nonstop flow of alcohol at all times,” said Jessie Minardi, a former Aflac agent from Omaha, Nebraska, who was not on that trip but has been to other Aflac gatherings.

Another former longtime agent who asked for anonymity repeated a joke inside the company that Af lac stood for “Alcoholic finally lands a career.”

Katie was not a big drinker; she trained for bodybuilding and marathons and met her husband, a former Coast Guard enlistee, when they both worked at a gym. She knew Jeffrey Hansen, a W-2 employee at Aflac, through a few work interactions. A week

prior, she had met with him and his son, who was deciding where to start as an entrylevel associate. It was the kind of thing that triggered Katie’s competitive nature; she even produced a recruiting video hyping up her team. Katie testified that at dinner, she texted Hansen, asking if his son had made a decision yet. Hansen, who was across the room, called out: “Katie, he decided to join your team.” He beckoned her over to celebrate. (Hansen testified something different, that he found out from Katie that Luke was joining her team.)

They had dinner and drinks and talked about the Colorado office. Hansen later claimed that Katie mentioned her missing wedding ring and alluded to marital problems, which Katie denied; she and Jason were reviewing fertility treatments to have a second child at the time. One witness, Marcotte, described Katie and Hansen as flirtatious; one person who was at the table said it was completely appropriate.

After dinner, the group went to another bar. Katie, already three drinks in, decided to have a vodka tonic. She called her husband—communication between them was constant—and Jason would later say in testimony that she sounded “a little tipsy,” but “nothing more than if we had a few drinks on the weekend together.” (Katie’s drinking would later become a major topic at trial.)

At this point, the stories diverge. Katie claims that Hansen took an unfinished drink out of her hand, over her objections, and replaced it with a new one, pushing her hand up to encourage her to imbibe.

After sipping it, Katie quickly started to feel nauseous and dizzy. Hansen claims that he never procured a drink for Katie, and that Katie seemed fine at the end of the night.

Marcotte, who did describe Katie as visibly drunk, testified that she tested Katie’s drink and it was only Sprite.

The Aflac group took Ubers back to the hotel; there was a pickup truck set up in the parking lot with more drinks for an after-party. Katie couldn’t keep her head up. She needed two people to help her to her room. She called Jason, who could tell something was wrong. “She was repeating over and over again, ‘I don’t know what’s wrong with me, I’m so sick, I’m throwing up, I can’t walk,’” he told me. But she was in her room and presumably safe. Jason told her to sleep it off.

Sometime between 12:30 and 1:30 in the morning, there was a knock at Katie’s door.

She hadn’t changed her clothes or taken her contacts out. She looked through the peephole and it was Hansen. “When I think back on all of this,” she recalled to me, “when I look and see a W-2 with Aflac, I did not think danger, I thought something must be wrong. I realize now I shouldn’t have opened the door.”

Hansen brushed past her and asked to use the bathroom. Katie went over to the bed to lie down. After urinating, Hansen went over to Katie and started rubbing her back and stomach. Katie claimed she asked him to leave. Both agree that there was sexual activity. Hansen said on the witness stand that it was consensual and brief and he ended it prematurely after thinking about his wife. To Katie, it was clearly rape. She testified that Hansen stuck his hand into her panties, and then ripped her pants off and started having sex with her.

She remembers not being able to move her legs; she was crying and trying to push him away. (The Prospect interviewed four different former colleagues who confirmed that Katie told them she was assaulted shortly after the incident.)

Eventually, it ended. “He turned to me, and this I remember so clearly,” Katie said.

“He said, ‘You know you can never tell anyone, right?’ And he walked out the door.”

Hansen testified that he went back out to the parking lot, to the after-party.

For the next few hours, Katie slipped in and out of consciousness. She thought about her marriage, but also about her job, about everything she worked for, the plan she had mapped out for her life. “If I would have been assaulted in a back alley by a stranger, I would not have had these thoughts,” she said. “I knew because of who he was, my career would be over.”

Every devotee of America’s secular religion, football, is familiar with Aflac, due to the nonstop commercials during every NCAA and NFL broadcast featuring the ubiquitous duck mascot, voiced by the late Gilbert Gottfried. Founded in 1955, American Family Life Assurance Company is best known for selling supplemental plans, mostly to small businesses, that cover gaps in traditional health insurance for accidents, cancer treatments, short-term disability, vision, or dental. Policyholders pay premiums through a payroll deduction, and Aflac prides itself on its “One Day Pay” option for claims.

DECEMBER 2023 THE AMERICAN PROSPECT 33

Despite earning over $4.2 billion last year on $19.5 billion in revenue from millions of policyholders, Aflac has just 4,839 U.S. employees. (Its Japanese subsidiary, which is Japan’s leading provider of cancer insurance, has another 6,996 employees.)

Nearly all Aflac revenue comes through its network of independent sales associates and brokers, who are paid entirely through commissions. The network consists of tens of thousands of sales agents, coordinators in training (CIT), district sales coordinators (DSC), and regional sales coordinators (RSC), none of whom are Aflac employees, even though many are managers with teams of people working under them, like Katie was.

I first wrote about Aflac five years ago, reporting on a series of lawsuits which alleged that, despite the company’s public commitment to integrity (Aflac routinely touts its inclusion on Ethisphere’s “World’s Most Ethical Companies” list for 17 years straight), it exploited workers, manipulated accounting in ways that deceived shareholders, and sold policies to customers without their consent. Aflac vigorously denied the claims and fought the lawsuits, one of which was dismissed in 2019; the other two were sent to arbitration.

Many claims in those lawsuits involved recruitment of new associates, who were lured in with promises of six-figure incomes.

Sales agents must obtain their own insurance licenses in the states where they sell, as well as invest thousands of dollars into things like licensing classes, Aflac trainings, travel and transportation, desk space at offices, and even the stuffed animal ducks given to clients.

Once they get in, associates are told to hit up their friends and family for Aflac, or even buy their own policies. Another source of associate revenue is referral bonuses for new recruits, which are a desperately needed resource. The Aflac Participant Workbook, cited in one of the three lawsuits, devotes considerable space to counseling associates that “constant attention to recruiting must be part of your everyday activities,” and “recruiting is a full-time job.”

Without attractive leads to go on, many associates f lame out. Af lac stated in its 2022 annual financial report that on average, 6,200 agents and brokers produce business on a weekly basis, even though there are as many as 75,000 agents in the field. When associates quit, 34 PROSPECT.ORG DECEMBER 2023

the accounts they managed to sell are transferred to their superiors, who keep the old commissions while allow ing other associates to mine them for new business. In other words, new associates bear many of the costs of writing new policies, while higher-ups primarily take the long-term benefits.

The word “independent” obscures what it’s like to sell insurance for Aflac. “It was not a 1099 position by any means,” said Minardi. Several former agents and coordinators told the Prospect they were directed where to work and whom to work for, while being required (or at least highly recommended) to attend local and national meetings and phone calls, write business plans and reports, and donate a portion of commissions to an “incentive fund” controlled by the state office. RSCs like Katie must purchase enough office space and equipment for their teams; Katie told me that her market director accompanied her on real estate tours and pushed her to sign a long-term lease.

In an emailed response to the Prospect, Aflac chief communications officer Ines Rodriguez Gutzmer said that the sales force is “properly classified as independent contractors,” which gives them the opportunity “to own their own business, live where they want and work when they want.” She said that meetings are not required (though they help associates “obtain greater financial success”) and added that associates can contract with multiple insurance carriers, though multiple former 1099 workers told me that in practice, this was frowned upon by superiors.

In Katie’s trial, Hansen’s lawyer at one point referred to her not being an employee of the company. “She was a 1099 employee with all of the indicia of an employee applied to her,” the judge retorted. “She worked at the direction of Aflac, reported to people at Aflac.”

Using independent contractors rather than employees relieves companies from having to fund payroll or unemployment insurance taxes, or provide basic benefits like overtime pay or workers’ compensation. Independent contractors cannot collectively bargain, and lack certain labor protections. In June, the National Labor Relations Board modified the standard for distinguishing independent contractors from employees. While the new ruling makes it harder for companies to

A lack of employee status can leave workers at Aflac at the mercy of their bosses.

misclassify workers, the benefits make it quite lucrative.

A lack of employee status can also leave workers at the mercy of their bosses. I repeatedly heard stories about agents having accounts taken from them, associates or their superiors moved around the country to avoid disclosure of particular incidents, dissenters facing retaliation, and generally a “protect the brand” attitude. The structure of employment at Aflac, former workers said, facilitated this.

Under the Aflac Associate’s Agreement, signed by every independent contractor, Aflac can fire an employee immediately for cause, and even terminate “without cause or reason” with 30 days’ written notice. If there is any dispute between Aflac and a 1099 associate, the agreement contains a clause that waives the right to trial in favor of a secret arbitration process. Sales associates get fully vested for lifetime commissions on renewal policies after ten years, a perk that many view as a type of retirement security. But those renewal commissions can be forfeited if the agreement is breached, and former associates say Aflac uses those terms to their advantage.

Rodriguez Gutzmer disputed this, saying that Aflac has a “zero-retaliation policy,” with multiple ways for workers to report grievances and voice dissent without disciplinary action.

But the threat of losing renewal income makes many who worked with the company reluctant to speak out by name. “What I don’t stand for is a bully,” said one former Aflac agent who spent 16 years at the company, who requested anonymity due to not wanting to cause harm to his colleagues.

“They hold this contract over people’s heads,

After the assault, Katie described herself as “useless” at work.

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they hold you hostage … I’ve seen this company ruin people.”

At 6:30 in the morning after the assault, Katie called Jason five times. It was an hour earlier in Denver and he was still asleep. She sent several frantic texts that sounded mean (“Why are you ignoring me? I don’t get you at all”) and would later be used by Hansen’s defense at trial as evidence of their fraying relationship. Grasping at what to do, Katie then called a mentor of hers named Jim Garner, who advised her to talk to Aspen Madrid, one of her lunch companions, since she was a woman and at the conference.

Katie called Madrid and explained what happened. According to Katie’s testimony, Madrid, who is featured in a video on the Aflac website touting the company, told her: “You can either say something, or you don’t. If you say something, your career is over.” Katie responded, “How could I not say something?” and Madrid replied, “Everybody has dark secrets. How do you know it was even rape?” The conversation ended quickly. (In a deposition, Madrid said that Katie told her she had “cheated” on her husband, and never mentioned the rape until later.)

Katie also told her territory vice president

Nate Harrison what happened, as well as her sister, before Jason called back. Neither of them knew what to do. “It was a barrage of emotions,” Jason told me later.

The two finally realized that they had an insurance policy called LegalShield, which entitled them to free 24/7 legal advice. The LegalShield agent told Katie that the first thing she needed to do was take care of herself by going to the hospital. Any hospital informed of a rape, the agent explained, would be obligated to report it to the police.

At Barnes-Jewish West County Hospital in nearby Creve Coeur, Katie wasn’t prepared for what went into completing DECEMBER 2023 THE AMERICAN PROSPECT 35

a rape kit—pulling out pubic hair, taking vaginal samples, the invasiveness of it all. She cried through nearly all of it. The forensic examination took six hours. Katie was treated for a sore pelvis and given anti-nausea medication and emergency contraception (for which she was charged $85; “it felt like I was being charged for being assaulted,” Katie would later say at trial). The hospital conducted a drug screen, as Katie believed Hansen had put something in her drink at the bar.

A Creve Coeur police officer questioned Katie at the hospital, and took her to the station for further interrogation. The police also administered the state highway patrol’s toxicology test. Both that and the hospital’s test came up negative for anything except trace amounts of marijuana edibles that Katie took to help her sleep, and the quinine from the vodka tonic. An expert toxicologist named Sarah Riley testified at trial that the hospital did not test for common “date rape” drugs like GHB, Rohypnol, and chloral hydrate. The highway patrol test screened for more drugs but had a high “cutoff” rate, which makes drugs harder to detect at lower concentrations, Dr. Riley said.

Katie’s attorneys couldn’t retest the samples because the vials of urine and blood were not preserved. The recording of Katie’s interview with police was also lost; only a written summary survives.

Justin Plaskov, Katie’s attorney, told me that police did not test key pieces of evidence, like Katie’s jeans or the bedding, for seminal fluid. They would have needed a subpoena to test Hansen’s DNA, so they didn’t. They never obtained Katie’s medical records from the hospital, even though Katie authorized their release. While doctors indicated in Katie’s records that there were no obvious signs of vaginal trauma, they didn’t take high-definition photos that could have showed micro-tears not discernible to the naked eye. “All of these things combined to have a lack of hard physical evidence that would have made the case easier,” Plaskov said.

The police questioned Katie, Madrid, and Marcotte, and one other person at the event, Katie’s market director Adam Wichmann.

Though Jason had flown out to St. Louis to take Katie home, and was the last person to talk to her that night, the police didn’t talk to him. Nobody questioned Hansen in person, because he had left St. Louis that day for his home in Minnesota.

36 PROSPECT.ORG DECEMBER 2023

After Nate Harrison found out about the rape allegation, he stated in a deposition that he immediately called Af lac’s human resources department. Hansen was pulled out of morning meetings for a videoconference with Keyla Cabret-Lewis, who at the time was an Af lac senior HR manager. Cabret-Lewis told Hansen he was being put on indefinite leave but didn’t explain why, and had him turn in his work phone and computer. Since the work phone was the only point of contact for Hansen, that’s what the police kept calling, getting no response. It took a week for the police to figure this out and obtain Hansen’s personal contact from Af lac’s legal department.

Aflac spokesperson Rodriguez Gutzmer said that suspending Hansen and confiscating his phone was “consistent with company standard procedure.” She added that they “provided investigators with alternate numbers to contact him and offered our full cooperation.”

The police interview took place on September 6, by phone, with no face-to-face contact between the investigating officer, Kurt Schneider, and Hansen. According to Schneider, Hansen didn’t even know the purpose of the call; he thought it referred to a conversation at the Galaxy Group dinner about a pornographic film actress who used to work for Aflac. Hansen eventually admitted to sexual contact with Katie but said that it was consensual; Schneider said on the call that this was “probably” true.

The conversation took about 15 to 20 minutes. Prosecutors were handed a he said/ she said case of two out-of-towners with limited evidence and opted against pursuing criminal charges.

Katie had to contact Luke Hansen, who was due to start on her team shortly, and tell him that it wasn’t going to work out. In a startlingly frank email to her staff, she wrote: “Something happened to me on Wednesday night that was devastating to me, and I am unsure of how I will adjust moving forward.

I was sexually assaulted on Wednesday by a W-2 employee of Aflac … a highly esteemed individual put on a pedestal by many in the Aflac nation, including myself, prior to this.”

A couple of months later, Jason made enough sales to qualify for an Aflac trip, but they skipped it, given what happened on the last one. Katie described herself as “useless” at work. In January 2019, she

Hansen’s lawyers claimed he was a third-party beneficiary to the Andersons’ arbitration agreements with Aflac.

asked for a demotion down to a district sales coordinator. Jason replaced her as regional sales coordinator, which seemed like trading one broken leader for another. But the couple had no other job prospects; they had to try to make it work.

Katie would before long demote back to an associate, unable to deal with any management duties and reminders of that night in St. Louis. She essentially reversed everything she had worked for.

Katie said she gained over 60 pounds after the incident. Her young son Logan couldn’t understand why his mom would ball up on the couch, crying for no reason. Fitful sleep was punctuated by panic attacks. During one nightmare, she jerked forward so violently that she hit Jason and broke his nose. Another episode required an ambulance to come to the house. Eventually, she and Jason moved into separate rooms to sleep. To cope, Jason said he started drinking heavily.

“Life just completely flipped,” Katie told me.

Luke Hansen, incidentally, moved over to Aspen Madrid’s region. Madrid, who testified on Hansen’s behalf in a deposition, would within a few months get promoted to a market director position in Minnesota, Hansen’s home state. By April 2019, she’d hired Hansen’s wife Carol to work for her as an RSC. And a month later, Madrid and Hansen and their spouses all took an Aflac-

sponsored trip to Punta Cana, Dominican Republic, together; pictures were shown at the trial of the couples drinking on the beach and on a party boat.

Hansen was not an Aflac employee at the time. Two months after the incident, he testified in a deposition, his boss Nate Harrison told him that Aflac HR was likely to terminate him if he didn’t resign. Even having consensual sex with a 1099 contractor on a work trip would have violated the company misconduct code, as would the excessive drinking; Aflac had just instituted a two-drink maximum at work functions. “[Harrison] strongly suggested that I consider resigning and when everything kind of boils over, then I’ll have an opportunity to probably come back within a year,” Hansen said in testimony. So he stepped down.

Rodriguez Gutzmer, of Aflac, confirmed that the company had decided to terminate Hansen before he resigned.

After learning of Hansen’s partying with Madrid at the Aflac event, Katie’s new lawyers (the LegalShield team was in way over their head) complained vociferously to Aflac about the pain that caused. Aflac sent Hansen a letter telling him he was not eligible for a rehire and forbidding him from setting foot on Aflac property again.

Katie’s lawyers sent a demand letter threatening litigation against Aflac, but the threat was empty, because of the arbitration clause in the Associate’s Agreement.

Katie and Jason eventually submitted to a mediation process with Aflac, and the two sides worked out a settlement that neither the Andersons nor their lawyers are allowed to talk about. As part of the deal, in July 2019, Katie and Jason mutually agreed to separate from the company.

“The events that took place that evening are neither a reflection of our values nor what we stand for as a company,” Rodriguez Gutzmer said. “Our sympathies have been, and remain, with Ms. Anderson and her family.”

This led to other parts of the employment contract kicking in. The Associate’s Agreement has a non-solicitation clause.

Katie and Jason were barred from making contact with any accounts from which they received commission for two years; a breach would cause a forfeit of any Aflac renewal payments. Many associates built their book of business through friends and family. Under non-solicitation, they had to be careful talking to important people in

their lives. Moreover, insurance was Katie’s livelihood for nearly a decade; to continue, she’d have to start from scratch.

There was another matter: the office space Katie had to lease as an RSC, at the insistence of her market director. Despite being separated from Aflac, she was still on the hook for five years of payments on an empty office, with a lease that got progressively more expensive each year. When they were at Aflac, associates would pay the Andersons for their desk space. Now, the lease payments were entirely on them. As a final insult, the Associate’s Agreement stipulated that renewal payments fully vested after ten years. Katie had eight and a half years of service at Aflac before splitting.

But the settlement contained one significant loophole: It specifically excluded any legal claims against Hansen in his individual capacity. The Andersons could therefore speak publicly about the case in the context of litigation. That provided the opportunity for accountability.

The civil suit was filed on July 30, 2020, but letters were exchanged between the legal teams a year earlier. Hansen’s legal team, one of whom also represented Missouri governor Eric Greitens over blackmail allegations involving a mistress, sought a summary judgment (a verdict in their favor without a trial), and when that didn’t work, countersued on multiple counts: tortious interference to force him out at Aflac, defamation preventing him from maintaining a job in the insurance industry, conspiracy between Jason and Katie to lure him into a compromising situation and sue him for monetary damages, and abuse of the legal process itself. The abuse-of-process counterclaim was dismissed, and the conspiracy charge later dropped.

Hansen’s lawyers then argued that he couldn’t be sued at all. They claimed he was a third-party beneficiary to the Andersons’ arbitration agreements with Aflac.

Federal district court judge John Ross denied the motion, ruling that the Andersons’ assault and battery claims, though they happened at a work event, were not related to Katie’s job. Hansen appealed to the Eighth Circuit Court of Appeals, which had never tested the proposition of whether sexual assault claims can arise from an employment contract.

Other appeals courts had, however, including the relatively famous case of

Jamie Leigh Jones, the KBR/Halliburton employee who claimed she was drugged and gang-raped in Iraq in 2005, and imprisoned in a shipping container after she reported it. Jones ended up losing her case after key parts of her story were found to be embellished. But what was relevant for Hansen’s motion is that the Fifth Circuit ruled that Jones could not be barred from bringing a claim under KBR/Halliburton’s arbitration agreement, because the incident occurred after hours, outside of the workplace, following a social event.

The Eighth Circuit applied the same logic to the Anderson case. The third-party arbitration claim was denied.

The Andersons’ primary lawyers, Justin Plaskov of Denver and Amy Gunn of St. Louis, had never tried a sexual assault case before. “This is a revictimization, when you are victimized to begin with and then have to go through the justice system,” said Gunn, who has over 25 years of trial experience. “[Katie] wanted that validation … the second larger issue is she wanted to be an example for other women who have also been through it and may not be strong enough to go through what she’s gone through.”

The revictimization peaked at the deposition, which Gunn described as “hours of abuse.” Beyond the eye of the jury, attorneys can ask about anything that might lead to relevant evidence, and do whatever they can to impeach the source—get them to say something inconsistent, or vague, or just wrong. Hansen’s attorney Douglas Dowd highlighted typos in Katie’s initial statement, discrepancies in how Katie listed her weight, whether she finished entire cocktails and glasses of wine, whether someone who is a friend at work should be labeled a friend, and other seemingly off-topic digressions.

Dowd got into excruciating detail about the rape: the position of Hansen’s hands, whether Katie was screaming, how her pants were removed. He focused on why it took her four and a half hours to report the rape. (Katie responded, “People take years to make decisions. That doesn’t mean they weren’t raped.”) Katie was moved to tears on multiple occasions, including when Dowd surprised her by showing her pictures of the hotel room.

“The point of that was to get her to drop the suit,” Gunn said. “She must have thought, ‘If I can live through that I can tell my story.’”

DECEMBER 2023 THE AMERICAN PROSPECT 37

In a statement to the Prospect, Clayton Dowd, who worked with his father Douglas on the case, accused Plaskov of yelling loudly and slamming the table during the deposition. “This was clearly a contentious case where both sides vigorously disagreed with each other in almost every single instance,” Dowd said.

On May 30, 2023, Katie’s story was told to a jury of three men and five women. Aflac attorneys were also in the gallery; “We naturally had attorneys present at the trial to monitor the case,” Rodriguez Gutzmer said.

They tried to intervene in pretrial motions in order to protect their interests, but Judge Ross told them they would not be able to interrupt the proceedings.

Katie went through the entire story again, and her life before and after the incident, “all of these things that are messed up in me now that were never messed up in me before.” She described her significant efforts to get better, trying whatever she could: self-help books, medication, ground38 PROSPECT.ORG DECEMBER 2023

ing techniques, and eventually antidepressants. Her life was still impacted, what she called a “process of mourning.” When asked why she filed suit, Katie answered: “Because I believe in accountability, and I believe that what he did was wrong, and I’m not going to let him just get away with it.”

A different attorney, James Bennett, cross-examined Katie at trial. He was considerably milder; when the jury is watching, it’s harder to be belligerent. He tried to claim that she wasn’t actually affected much by the assault because she started a consulting business, wrote a children’s poetry book, and started a podcast in the succeeding years. (None of these enterprises were particularly long-lasting or successful.)

He even showed recent pictures where she was smiling. “We were merely seeking to show the jury the evidence that refuted her claim that emotional distress had ruined her career path,” Hansen attorney Clayton Dowd said. Later, the plaintiffs brought on an expert witness who evaluated Katie and agreed she had post-traumatic stress disor-

der; the defense expert who doubted Katie’s PTSD never personally examined her.

Hansen, who also took the stand, said Katie gave him her room number that night, and asked him to come and talk there before the next day’s meeting. When Hansen excused himself from the parking lot party to go to the bathroom, he decided to visit Katie’s room to have that conversation. Besides, the hotel bathroom was too far away, he said. “So just convenience? To use the restroom in … a married woman’s hotel room at 1 o’clock in the morning?” asked Katie’s lawyer. “I wasn’t looking at it that way,” he replied.

Hansen denied putting anything in Katie’s drink, and the defense repeatedly noted that the toxicology reports showed no drugs in Katie’s system. The plaintiffs explained that the drug screening tests were deficient. But after a three-day trial, ultimately the jury agreed with the defense that evidence was lacking, and dismissed the claim about administering an intoxicating substance without consent.

TOM WILLIAMS/ AP PHOTO

Former Fox News anchor Gretchen Carlson has become one of the most prominent advocates for women victimized by sexual misconduct in the workplace.

The passage of two laws could shift the landscape for workplace sexual misconduct.

had to do with Katie allegedly missing out on promotions that she was qualified for, in her view because of the incident.

“Plaintiffs also claimed that Aflac was unsupportive after the sexual assault, including failing to support her efforts with the police,” Judge Ross added. It’s hard to say without seeing the settlement, but that could refer to Hansen being allowed to leave St. Louis and the confiscation of his work phone without informing police.

“Any suggestion that implies that Aflac did not make every effort to support [Katie] and/or cooperate fully with law enforcement authorities is inaccurate and misleading,” spokesperson Ines Rodriguez Gutzmer said.

But the jury found Hansen liable for battery based on nonconsensual sexual contact, and for damages to Jason Anderson sustained as a result of the injury to his wife.

The jury awarded the Andersons $700,000.

“Mr. Hansen maintains that Ms. Anderson asked him to engage in sexual activity multiple times on August 30, 2018,” Dowd told the Prospect over email.

Hansen’s lawyers then made a specific motion to amend the judgment, arguing that it should be subtracted from what Aflac gave the Andersons in the settlement. The judge denied that motion in September, but in so doing, revealed in a public document details of the confidential agreement, which were not disclosed at trial.

Af lac settled with the Andersons for $750,000—$300,000 of which was for attorney’s fees—and Judge Ross stated that it was not for the rape, but what happened afterward. “[Katie] testified at trial that after the sexual encounter, while she was still an independent contractor for Aflac, she continued to receive email chains that included Defendant’s name and email address,” Judge Ross wrote. “She testified just seeing his name in these email chains caused her emotional distress, bringing back unnecessary memories while she was trying to work.” In depositions, Katie also discussed a “lack of sensitivity in the workplace,” with agents and managers filling the halls with gossip about the incident.

The Aflac settlement damages, according to the judge’s order, were for negligent hiring, retention, and supervision of Hansen— including not being fired right away—and violations of Title VII of the Civil Rights Act, which covers employment discrimination on the basis of sex. The latter claim

This kind of information about settlements is almost never revealed in sexual misconduct situations involving corporations. But last year, Congress set about to change this culture of secrecy.

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, passed with a broad bipartisan vote in the House and Senate, does mostly what it says, giving victims a choice of using Article III courts instead of arbitration. The Speak Out Act, also passed overwhelmingly, invalidates nondisclosure and nondisparagement agreements in the context of a sexual misconduct dispute.

“The way I describe the difference,” said Julia Duncan, a senior director for government affairs at the American Association for Justice, “is that forced arbitration is applied at the front end, it cuts off your rights before you know what they are. NDAs cut off the rights at the back end; after something happens to you, you realize you can’t speak out about them.”

The passage of these two laws could shift the landscape for workplace sexual misconduct. They apply to employees, 1099 workers, migrant workers, consultants, and even consumers who are survivors of assault or harassment. But advocates are concerned that not enough workers are actually aware of these protections.

“Companies don’t have to tell employees about these laws,” explained Gretchen Carlson, who remains under a gag order in her sexual harassment settlement with the late Roger Ailes and Fox News. “They can still put arbitration and nondisclosure agreements into contracts, and it’s up to employees to say they don’t have to abide by them.”

Carlson’s organization, Lift Our Voices, is

preparing surveys for public companies in the Russell 3000 stock index, which will result in transparency on how corporations explain to workers their rights. Aflac, for their part, told the Prospect they are “fully aware and compliant” with the new laws.

The other problem is that the laws are forward-looking. If you have not filed a claim, even if the conduct predated the passage of the laws, you get their protections.

But if, like the Andersons, your claim was filed earlier, you are stuck in the old system.

The post-trial judgment in the Anderson case that revealed details of the Aflac settlement noted that the Andersons agreed to “not disparage Aflac” or “publicize or disclose” the terms. Judge Ross pointed out that this “agreed upon silence” was “likely for Aflac to ensure it won’t receive any negative publicity.”

Asked about the other employment contract provisions that kick in after sexual misconduct cases, like non-solicitation agreements, Carlson said, “If I could clone myself by 1,000 people, I would bring legislation to all these other clauses … When a person is telling the truth, that person should stay working and the bad person should leave.”

Hansen’s legal team did initially file an appeal in the case, but on October 24, a settlement was reached and the appeal dismissed. It was all over.

Katie and Jason and Logan moved just outside of San Antonio a year ago, in part to leave the emotional heaviness behind. Jason works with municipalities and schools on internet access; he said he and his wife are “trauma bonded,” and taking every day as it comes. Katie rebuilt her career and now works for a mutual insurer called Assurity. She’s a W-2; independent agents sell Assurity policies, but Katie says they are actually independent. “They don’t report to me,” Katie said. “We don’t tell them they have to have an office, go to meetings. There aren’t these massive parties, no fraternization between us and 1099s. It was unbelievably refreshing.”

Still, in our conversations, the pangs of regret for what might have been seeped in.

Katie told me about how, up until the incident, she and Jason donated tens of thousands of dollars to Aflac’s children’s cancer campaign, and started a trend of others in Colorado donating as well. “I visited the cancer center,” she said. “I loved the company. I thought they cared about me.” n DECEMBER 2023 THE AMERICAN PROSPECT 39

HARD TIMES IN Jessica Meeks, an export agent for Swissport at Newark Liberty International Airport

40 PROSPECT.ORG DECEMBER 2023

THE BACK YARD Bailed-out major airlines have outsourced ground work to subcontractors. Injuries and fatalities on the tarmac are taking off.

By Lee Harris

LEE HARRIS

This story contains graphic images of injuries.

NEWARK, NEW JERSEY – Swissport’s air cargo warehouse at Newark Liberty International Airport (EWR) is a cross between a morgue, a medical way station, and a modern-day treasure cove. In the warehouse, which is roughly the size of two football fields, narrow lanes wind past boxes of costly merchandise.

The warehouse is a cross section of the global luxury goods market, piled high with temperature- and time-sensitive commodities. On any given day, these may include designer handbags, electronics, fine art, sports cars, or perishables like fresh produce and seafood. Live animals come through, too: butterflies, tropical fish destined for aquariums, and crates of lab mice.

Also, medical supplies, including vaccines and hazardous materials. Perhaps most critically, human remains—bodies that are typically being shipped home for burial— pass through this warehouse on the way to their final resting place.

The subcontracted workers who pick their way through this cargo, checking air waybills and jotting down notes, sustain a growing segment of the global transportation sector that is both high-end and corner-cutting.

During the COVID-19 pandemic, port congestion and disruptions in maritime shipping prompted more companies to transport goods by air—not only in the bellies of passenger planes, but on windowless aircraft kitted out exclusively for cargo. Ocean shipping liners like Maersk, synonymous with maritime transport, acquired air freight divisions. Boeing has

predicted that the global air freighter f leet will jump from around 2,000 in 2022 to more than 3,600 in 2040.

Greater reliance on air shipping is intensifying the exploitation of a largely invisible class of workers. Whereas dockworkers are heavily unionized and reaffirmed their control of port infrastructure in contract talks last year, airport ground workers have little say about the conditions under which pricey commodities circulate through their warehouses. In fact, many aren’t even employees of the companies for which they work.

Since 2001, airline service work has been increasingly outsourced. Swissport, the biggest global contractor of airport handling staff, is emblematic of that shift. The cargo workers at Newark are just one of the cells Swissport operates across 88 airports in North America, which also include fleet services—baggage handling and cabin cleaning—and in-airport services like ticketing and wheelchair agents.

Those jobs were once handled in-house by major airlines like United. But the airlines have laid off unionized career employees and contracted out tasks, like United’s cargo work at Newark, to subcontractors whose staff skew young and Black or Latino, according to employees and to 32BJ SEIU, a labor union organizing workers at several Swissport locations. Many are immigrants who speak little English.

“Swissport is very humbling,” said Alphonso, a ramp agent at LaGuardia, whose name has been changed at his request. “We don’t feel like we’re treated right. We don’t feel like we’re supplied with the right materials to do our jobs.”

DECEMBER 2023 THE AMERICAN PROSPECT 41

In his first days at LaGuardia, Alphonso said, he felt frightened and confused. Swissport’s training exclusively involved computer modules, he said, which were a poor substitute for hands-on experience.

“The training I got was from my coworkers. And they aren’t trainers,” he said.

“When I first got onto the ramp and saw the plane, I was like, shocked. I didn’t know how close I’m allowed to get to the plane.

If I got close enough, I don’t know at what point does the engine suck me in. I don’t know if I’m even supposed to be in front of the engine at all.”

That is not just a hypothetical scenario.

Courtney Edwards, a 34-year-old mother of three who worked as a ramp agent for a subsidiary of American Airlines, died in December 2022 after being sucked into an airplane’s left engine. An employee of GAT Airline Ground Support, another subcontractor, also died last year, when her hair was caught in a conveyor belt.

Work in the aviation industry has become more dangerous since the pandemic. Injuries that led workers to miss at least one day of work increased 17 percent in 2022 compared with 2019, according to a Wall Street Journal review of Occupational Safety and Health Administration (OSHA) data. (Injuries at Swissport’s rival subcontractors, like dnata and GAT, jumped even more dramatically, with dnata reporting a 54 percent increase.)

42 PROSPECT.ORG DECEMBER 2023

That data does not include Swissport USA. Injury data for 2022 is missing from public filings, and the company appears not to have provided complete injury data for several years. (Asked about the missing data, Swissport did not comment.) But over the past decade, OSHA has cited Swissport dozens of times for safety violations, which have resulted in injuries including bone fractures and crushed limbs. The National Council for Occupational Safety and Health, a grassroots network of worker groups, ranked Swissport as one of its “Dirty Dozen” unsafe employers this year.

While Swissport employees perform similar work to that of direct employees of the major airlines, they earn lower pay and benefits. This may make them function as a pool of spare labor, easier to fire when demand for their work slackens.

During the pandemic, Congress passed a Payroll Support Program aimed specifically at protecting airline workers and preventing mass layoffs. Swissport USA received $170 million in payroll support aid, yet it nevertheless laid off more than 2,800 workers.

The most recent squeeze follows a trend in the highly cyclical airline industry, where crises have repeatedly served as opportunities for restructuring at workers’ expense.

Now, Swissport workers at airports across the country are seeking to unionize. Over the summer, 32BJ SEIU won a runoff against the Machinists Union (IAM) to represent Swis-

Meeks’s injury became infected after what she believes was inadequate attention by doctors at Swissport’s on-site clinic. sport workers at Newark. (IAM represents United employees at Newark, and also represents some Swissport employees at other airports, including in Las Vegas and Phoenix.)

Meanwhile, Swissport workers at Chicago O’Hare elected to unionize with SEIU Local 1, which represents service workers across the Midwest. If the organizing drive takes off, the unionization efforts could unsettle not only Swissport, but the entire system of subcontracting and outsourcing airline work.

The Prospect interviewed ten current or former Swissport employees spread across Newark, LaGuardia, Washington Dulles, and Boston Logan Airports. Many of the workers described a high-churn workplace that lacks basic equipment, training, and dignity. They argued that inadequate training and poor conditions not only lead to

accidents and injuries, but have also intensified travel chaos, and led to the mishandling of precious cargo, including, according to two workers at separate airports, caskets carrying human remains.

“The health and safety of all our workers is Swissport’s highest priority,” Swissport said in response to a request for comment for this story. The company declined to address workers’ specific allegations, saying it was not given enough detail to investigate them, but added, “Swissport is also proud to provide competitive benefits and pays some of the highest wages in the industry to our valued workers. We respect their right to choose labor representation and negotiate in good faith.”

“The Back Yard”

Jessica Meeks beamed at me as we sat down to discuss Swissport. Though she believes that conditions need to change, and has grueling memories of her nine years with the company, Meeks ties up her stories with a bow, adding, “but it all worked out in the end.”

Meeks now works as an export agent in buildup, building freight on what workers call “cookie sheets,” or aluminum pallets.

She previously worked in Newark’s “back yard,” where Swissport workers load cargo for United. Ramp agents employed by United bring cargo to and from the gate, and Swissport employees take over from there in the back yard and warehouse, doing the heavier manual labor of packing cargo.

Office work is almost entirely female, and mostly men staff the back yard, but Meeks was recruited for her work ethic and upbeat leadership style.

“What you learn in training doesn’t correlate to what you actually do on the floor.

Because of that lack of training, anything can happen to anybody that works here,” Meeks told me.

Meeks speaks from experience. When she wears shorts, it’s hard not to notice her right leg, where deep scarring craters the front and back of her calf like molten wax. At first, she was reluctant to discuss the injury. “Swissport did do right by me,” she insisted, because the company paid her medical bills. But with proper training and equipment, she said, “my injury probably could have been avoided.”

It was 2021, and Meeks was almost finished with her shift. She was loading up a plane headed to Frankfurt, Germany, and needed to connect a string of yellow metal dollies. Her co-worker pushed them over on

Workers cite worn-down equipment as evidence of underinvestment in safety.

an electric “tug,” a small transport vehicle used at the warehouse.

Then, the co-worker dismounted—he later claimed that he braked, Meeks said— but the tug kept rolling, pushing the dollies toward her. He climbed back in to stop the tug, but the vehicle accelerated. Either he accidentally hit the gas, Meeks believes, or the equipment was faulty.

Propelled by the tug, a metal dolly crashed into her calf, pinning her leg against the carts she had been stringing together. It was over in seconds—her co-worker helped her hobble away—but the pain was severe.

She was taken to the Medport, the on-site clinic for work injuries.

At the Medport, the doctor gave Meeks a recreational drug and alcohol test—she tested negative, she said—briefly examined her leg, and sent her home. Because it was a work injury, she was told, she could not see her own doctor.

Two days later, Meeks returned to the Medport with a swollen leg. A new doctor said she should stay out of work for a week, she said. They tested her for diabetes and checked for blood clots, and noticed significant swelling. She pointed out that her leg was blistering, and a doctor reassured her, she recalled, saying, “That’s OK, that’s your body releasing fluid.”

After a week, Meeks was sent back to work, on “light duty,” she said. That involved getting up and down all day to weigh packages, putting pressure on her leg. Multiple workers told the Prospect that light-duty jobs often involve strenuous tasks. At home, Meeks’s blisters burst, leaving large open wounds on her calf. Several times that week, Meeks came back to the Medport for checkups. One doctor cleaned her open wounds like a regular cut, with hydrogen peroxide, she said.

The next time Meeks came into the Medport, about two weeks after the initial injury, was the first time she felt that she was taken seriously. “It wasn’t until I actually had this Black lady who came in and took a look at my leg, and saw that it was still swollen, and saw that the wounds were open. She gave me the right stuff to clean it with,” she said.

“After she saw my leg, everything changed.”

Until that point, Meeks had seen a different doctor on each visit, she said, all of whom were white men, and noticed that “nobody was really sharing notes.” The female doctor seemed to pay more attention, Meeks said. She gave Meeks a thicker ointment intended for burn victims, not DECEMBER 2023 THE AMERICAN PROSPECT 43

just peroxide, and called the other doctors in to say that she thought Meeks needed to be taken to see a specialist.

She was sent to an orthopedist and a plastic surgeon, she said, who confirmed that peroxide was not enough to clean the wounds, and found that Meeks’s leg was so severely infected that she would need to take antibiotics for weeks, administered through a PICC line in her arm. Ultimately, Meeks underwent three surgeries, including a skin graft. It was four months before she could return to work. She was paid during this extended leave, she said, though not for the initial week she took immediately following the injury.

Reflecting on the injury, Meeks said that Swissport “didn’t give us proper training to work in that back yard.” After returning, she said, “they tried to quote-unquote retrain us.

But I felt like their retraining was bullshit, because all they did was ask us questions on how we can make sure this doesn’t happen again. Instead of going more in depth, like, let’s show you how to really move the dollies, how to load properly, how to drive the forklift, how to make sure we’re checking our surroundings. They didn’t do none of that.”

The majority of workers interviewed by the Prospect said that they taught themselves and each other to use Swissport’s heavy machinery and comply with demands from the parent airline, without receiving hands-on training.

Victoria Welch, who was fired this year from Swissport Newark, said that workers were largely trained on computer modules that outlined general requirements from United.

“It was never anything specified for Swissport, besides the uniforms and stuff like that. It was just what United wanted overall, but not what you were actually going to be doing downstairs,” she said.

Technically, Welch added, it was the responsibility of supervisors and managers to train new hires. “But it was always pushed on the entry-level agents. Once we got downstairs, we’ll be doing it or trying to get the hang of it for about a week, two weeks, and still struggling … But when another new hire came downstairs, they were like, ‘Look, I need you to train that person.’ And we’ll be like, ‘We’re not even fully trained. How you gonna have new hires training new hires?’

But that was their routine.”

Underinvestment in equipment can add to risks. Meeks is not sure if her accident was caused by faulty equipment. But, if it 44 PROSPECT.ORG DECEMBER 2023

was, that would not be unusual. Across the country, according to 32BJ SEIU, Swissport workers report faulty and broken-down equipment, including forklifts with malfunctioning brakes, broken horns, and bald tires.

Keith Adams, a former Swissport employee at Dulles Airport, said he taught himself how to drive a forklift on the job by watching others. Their safety horns weren’t working, he said, so when he would turn a corner, he would instead shout, “Beep, beep!” Still, there were close calls, when people suddenly appeared in front of the forklift. That made Adams feel “really nauseous,” he said.

Beyond their own exposure to workplace hazards, multiple workers told the Prospect that understaffing, a lack of training, and time pressure has led to the mishandling of freight.

At Dulles, Adams said, a storage freezer for goods being transported on dry ice was often overcrowded. The warehouse added a cooling trailer, but that was also sometimes at capacity. Goods meant to be kept cold, including hazardous materials being transported for research purposes, were repeatedly left out overnight, he claimed.

Caskets carrying human remains, which are often heavy and unwieldy, have been mishandled and even dropped, according to Adams and another worker at EWR. Human remains were often moved using a cart, Adams said. When weighing a box containing human remains, workers are supposed to remove it from the cart, but have sometimes left the box on the cart, Adams said, where it has tipped over.

Beyond human remains, other types of sensitive cargo have been mishandled, too, employees said. Workers also complained of, and documented, cockroach and rodent infestations.

Some of the mice that infest Newark came from shipments destined for labs, one worker claimed, and could be distinguished from their feral cousins because they are sleeker. “It’s a couple of cancer mice—we call them cancer mice, mice that’s been injected with stuff for lab reasons—they running in that building,” the worker said. “Those containers they come in have been dropped or damaged, and they ran off.”

Forged in Crisis

To understand the abject work conditions at airport subcontractors, it’s necessary to look back, before the pandemic, to the formative crisis of the modern airline industry.

“One of the great goals of this nation’s war

Multiple workers told the Prospect that understaffing, a lack of training, and time pressure have led to the mishandling of freight. is to restore public confidence in the airline industry,” George W. Bush told the executives of major airlines gathered at Chicago O’Hare Airport on September 27, 2001.

“You stand against terror by flying the airplanes, and by maintaining them. You stand against terror by loading a bag or serving a passenger,” Bush said. “We must stand against terror by going back to work.”

The president’s words, issued in the wake of tragedy, sounded like a response to an unprecedented crisis. But the speech was not so different from orders Bush had issued a few months earlier. At that time, the framing was less high-flown.

In March 2001, Bush issued an executive order preventing a potential strike by airline mechanics. “It’s important for the hard-working people of America to make sure air service is not disrupted,” he said, threatening to put down any airline strike, at any carrier.

He was building on previous invocations of emergency powers, under the Railway Labor Act, to prevent airline work stoppages. In 1997, President Bill Clinton ordered pilots back to work minutes after their strike commenced.

Presidential-level efforts to quell unrest were responding to an airline industry in turmoil following the deregulation enacted under Jimmy Carter. When prices and routes were regulated, airlines competed to offer a better passenger experience for the same price, leading to a race to the top on service.

After deregulation, they competed to cut costs. Major carriers had faced new competition from low-fare competitors like Southwest and JetBlue, and union gains over the same period further threatened management.

The September 11 attacks sent judders through the airline industry. For days after

REGINALD MATHALONE / AP PHOTO

Major airlines like American successfully fought to outsource cargo operations after the September 11 attacks.

the attack, air service was suspended; ridership did not return to pre-9/11 levels until 2004. The crisis can be understood as a trigger for the kind of cyclical culling that is common in transportation infrastructure, which the railroads have also gone through.

Following that decline, Congress authorized $5 billion in direct grants to compensate airlines for halting flights and resulting losses, and created an Air Transportation Stabilization Board with the ability to grant up to $10 billion in loans and loan guarantees to the airlines. The future of the carriers was actually decided in bankruptcy court, and in the ensuing wave of restructurings and mergers, where major airlines broke union contracts, citing force majeure, subsequently cutting wages and pension plans.

Congressional loan guarantees made few demands of their recipients, with no strings attached to protect employees. Their primary function appears to have been bolstering capital markets, which were skittish about the sector. Still, Congress’s loan guarantee board bailed out only some airlines, leaving others, including United, to work out their finances in court. That was in line with the mood at banks. “Wall Street was all but rooting for United’s dissolution, arguing that the only way to cure the problem of overcapacity was for a major carrier

to fold,” the Chicago Tribune reported in 2003. Over the next decade, airlines also became increasingly financialized, as their frequent-flier programs came to be worth more than the underlying airline.

Unions were on the back foot during post-crisis negotiations. Prior to 9/11, many fleet service workers had been employed in-house, many of them represented by the Transport Workers Union (TWU) and the Machinists (IAM). That changed after the crisis, as carriers turned to subcontractors.

In 2003, United fought to ratify a contract that would allow it to outsource most of its cargo operations. When it exited bankruptcy in 2006, United had 30 percent fewer employees.

Liesl Orenic, a labor historian at Dominican University who previously worked as a baggage handler, said that after 9/11, it became easier for subcontractors to “nibble away” at fleet service work.

Meanwhile, mechanics resisted the outsourcing of mechanical work on airlines to overseas maintenance bases. They were relatively successful; mechanics are directly employed by airlines at much higher rates than cargo workers, though the share of heavy aircraft maintenance done overseas has tripled since 2003, according to a TWU study.

“The place airline unions have tried to

hold the line is the outsourcing of mechanical work to overseas bases,” Orenic said.

But the hiving-off of less-skilled fleet service work by contractors hurt the strength of other workers on the tarmac. When unions controlled more of the shop, Orenic said, there were avenues from jobs in ramp work and baggage handling into mechanical work.

“Mechanics who recognized their power, as a work group, recognized also that they should organize with lesser-skilled workers, because you wanted to maintain pathways of upward mobility, and protect yourself against downward mobility,” she said.

That was true even though the IAM was a craft and not an industrial union. “Part of protecting craft work meant protecting your flank, recognizing that the work of servicing airplanes requires a variety of different work groups,” said Orenic. “You want to have all of them protected.”

“What the airlines do is force those contractors to compete for who can pay the least—and compete against the direct workers [employed by the airlines]. That forces a race to the bottom,” said Rob Hill, executive vice president of 32BJ SEIU. Nationally, the union represents more than 35,000 airport workers, and has been organizing Swissport workers at airports including Newark. But the campaigns can be an uphill battle, since many workers consider the job a temporary gig.

Organizing Swissport

Swissport began life as the ground handling operation of Swissair Group, the national airline of Switzerland, which also owned the airport retailer Nuance and the catering service Gate Gourmet. In August 2001, deep in debt, Swissair announced plans for a buyout deal for Swissport.

Over the next two decades, Swissport traded hands between private equity groups and expanded to serve some 294 airports globally.

In 2020, Swissport received $170 million in payroll assistance through the federal CARES Act, which was meant to keep workers in their jobs. But while the company awaited the release of that federal funding, Swissport laid off more than 2,000 workers.

Swissport technically complied with the terms of the rescue package, because the company made the layoffs prior to receiving the funding. “Treasury permitted layoffs up to the execution date of a PSP agreement, leading companies to ‘urgently’ fire employees before signing agreements,” a House investigation found.

DECEMBER 2023 THE AMERICAN PROSPECT 45

Playing Favorites

Workers described an incentive structure for management and promotion that can seem arbitrary at best, and at worst, actively anti-meritocratic, designed to punish workers with initiative, and select for loyal recruits who will ask few questions.

Colleagues who are injured on the job or 46 PROSPECT.ORG DECEMBER 2023

Swissport workers Wanda Frazier (left) and Kim Ikner are organizing with SEIU Local 32BJ. who make costly mistakes have been quickly promoted, several said, in a seemingly counterintuitive move. According to Adams, on two separate occasions, workers who dropped human remains were promoted to supervisor.

“They [Swissport] try to use people that don’t know what to do, to make them supervisors, so they can point fingers at them,” Adams argued.

Adams and Victoria Welch both became involved with 32BJ SEIU, joining the union and attempting to organize co-workers, before being fired. Both claimed that they were fired in retaliation for their union activity, and the union helped them file unfair labor practice charges with the National Labor Relations Board (NLRB).

Other workers who remain at Swissport echoed their concerns about an unfair system of promotion.

Nearly every Swissport employee interviewed by the Prospect complained of “favoritism” in the company’s use of the points system for conduct. Favoritism can refer to a number of types of bias, including nepotistic hiring. The constant is that an inconsistently enforced points system means some workers rack up violations with no consequences, they said, while others are

fired on the spot for the same behavior, with little or no warning.

“They push their best workers out, and always rehiring new people so they can manipulate their minds, and have them work the way they want them to work,” Meeks said.

Jonathan Rodriguez, a ramp agent for Swissport at LaGuardia, pointed to an incident last New Year’s Eve, when he claims that he was unfairly disciplined—and then further punished for speaking out.

It was December 31st, and near the end of Rodriguez’s shift, Swissport received news that several airplanes had been diverted to LaGuardia, he said. A group of workers including Rodriguez were asked to stay late—but the company never called “mandatory,” requiring them to stay, he claimed. He apologized that he could not stay, he said, and left to celebrate the New Year with his family, who are Catholic.

When he returned to work the next day, Rodriguez said, he was told that he and others who had left were being suspended for almost a week without pay. Afterward, he said, “I came back, spoke to them, and told them, ‘Respectfully, look, I know what ended up happening here was wrong.

It wasn’t professional. You guys didn’t go

LEE HARRIS

“It’s important to remember that the entire air system shut down during the pandemic. Swissport was just one of many companies in the industry who sought the support of the government to take care of employees. We fully complied with the terms of the PSP agreement and used the funds exclusively for the continuation of payment of wages, salaries, and benefits to our workers. This has allowed us to protect thousands of jobs and preserve skilled labor that helped us ramp up quickly and safely post-pandemic,” Swissport said in a statement.

Internal communications obtained in the investigation show that in the weeks before the company received CARES Act funding, Swissport executives “urgently” sought to “furlough or terminate” staff. “Swissport’s receipt of payroll assistance for jobs that no longer exist is contrary to Congress’ intent,” Reps. James Clyburn (D-SC), Peter DeFazio (D-OR), and Maxine Waters (D-CA) wrote in a 2020 letter to former Swissport USA CEO Frank Mena.

Pandemic-era work conditions, furloughs, and layoffs are among the grievances now fueling ground crews’ growing movement to unionize. Although it will be an uphill battle for the company to recognize the unions and enter contract negotiations, SEIU has been helping to organize Swissport workers at major airports for years.

Last December, SEIU organized a strike of workers at Newark, Chicago O’Hare, and Boston Logan Airports, to protest unfair labor conditions at Swissport. A total of 15 airports across the country participated in rallies and workplace actions during the busy holiday season.

Much of the union organizing has focused on dangerous and unsanitary work conditions, and on winning material benefits for workers. 32BJ helped airport workers in New York and New Jersey win a $19 minimum wage, and helped ensure they actually received checks, the union said.

But the organizing drive could also shed light on the way subcontracting has turned airline workers against each other.

Much of the union organizing has focused on dangerous and unsanitary work conditions, and on winning material benefits for workers. from a verbal warning to a write-up and a suspension—you just skipped those two steps.’ I told them, that’s not the law. I know my rights. And then I guess ever since I said things like that, I feel like that’s when things started going downhill for me.”

Then, Rodriguez alleges, his scheduling changed. He would work from 2:30 p.m. to 12:30 a.m., and then he would be scheduled for a shift starting 3.5 hours later, at 4 a.m., giving him no time to rest, he said. Or he would be scheduled to work two weeks straight without a day off. Rodriguez said that he felt that the changes were retaliation for his complaints.

Kim Ikner, a spindly 62-year-old who has been an outspoken supporter of 32BJ SEIU, has been at Swissport Newark since 2018.

Ikner said that there is frequent turnover in middle management, too. “It’s like retail—a revolving door. You go one day, next day you don’t even see them.”

Workers at Newark, LaGuardia, and Dulles told the Prospect that there were few or no white employees among entrylevel staff.

“If we had more of a sense of privilege, I guess, we wouldn’t be working for Swissport,” said Alphonso. “If you’re working for Swissport, you don’t have a really good reputation in the airport. If you’re working for American, or for Delta, or for United, you have more respect.”

Ikner said she tries to encourage her young colleagues to stick up for themselves.

“The strategy of this company, as far as my assessment, they hire young people strategically, because young people do not know [their rights],” she said.

Swissport has repeatedly faced lawsuits alleging discrimination and harassment.

For example, in 2010, Swissport Fueling, Inc., agreed to pay $250,000 to settle a racial harassment lawsuit brought by the

U.S. Equal Employment Opportunity Commission (EEOC). The EEOC alleged that fuelers employed by Swissport, who came from African countries including Nigeria, Sudan, Ghana, and Sierra Leone, were routinely subject to harassment by a Swissport manager. The manager repeatedly called the African workers “monkeys,” the suit alleged, and made demeaning references to slavery.

Airline subcontractors say they are struggling to find new recruits. A recent survey by the International Air Transport Association (IATA) found that 60 percent of ground handlers felt they do not have enough staff to ensure “smooth operations.”

Heat Hazards

In September, I interviewed 19-year-old Sabrina Ketchum, who left a job at Dunkin’ Donuts to join Swissport’s cabin-cleaning crew at Boston Logan Airport, where her boyfriend was also working. Ketchum cleans galleys and seats, and takes the trash out of the cockpit.

The job pays better than her work in fast food—a factor many workers cited as a reason to join Swissport. Others appreciated that the paychecks are weekly, rather than every other week.

To clean the galleys, workers like Ketchum are only provided wrist-length latex gloves, she said. She wishes they had rubber gloves that extended to her elbows, since when they clean planes after long flights, like Qatar Airways and Turkish Airlines, she often must reach deep into trash cans to collect feminine products soaked with blood.

Alphonso, of LaGuardia, said that his team is also undersupplied with sterile gloves. Instead, they have relied on the same gloves they use for heavy-duty work outdoors. The cleaning spray bottles are broken, he said, so they unscrew the caps and pour the chemicals onto paper towels, where they have gotten onto workers’ skin.

Dozens of workers at Swissport LaGuardia, including Rodriguez, joined a protest earlier this year to protest unsafe working conditions, according to Documented.

They cited vehicles with faulty brakes, a lack of gear, and even a faulty hose for emptying airplane lavatories, which they said has leaked and sprayed workers with fecal matter.

Former baggage handler Chad Infiesta said that he was fired the day after he spoke out about unsanitary working conditions. According to 32BJ SEIU, Infiesta

later reached a settlement with the NLRB and Swissport that granted him back pay and mandated that Swissport reinstate him.

Tensions between labor and management run hotter on sweltering days. Without airconditioning, Adams said of the warehouse at Dulles, “we sweat through our shirts.” On one especially hot day, he recalled, management came down to rebuke a colleague. “He was tying boards, and he wasn’t moving as fast as other people. They be watching the cameras from upstairs, then they come downstairs just to argue. They picked one of the dudes I know, and started yelling at him because he wasn’t working as fast.”

Over the summer, workers in Boston sweltered under extreme heat. Cabin crew wore high-visibility reflective uniforms that are heavy and hot. Ketchum, who is petite, and her co-workers sweated profusely.

Instead of leaving on the air-conditioning in planes after they deboard, Ketchum said, or finding better-fitting uniforms, her manager has sent pointed emails about the importance of hygiene and controlling body odor.

Earlier this summer, Ketchum was cleaning a Turkish Airlines cabin when she became so overheated that she fainted. She was taken to the hospital, and diagnosed with heat exhaustion. The company has done little to alleviate these risks, she said.

The Wall Street Journal reported that Swissport “sends vans along the tarmac to distribute cold bottled water to staff.”

Ketchum said, “I’ve never seen this water bottle truck, ever.”

Those grievances have led many Swissport workers to support unionization efforts like those led by 32BJ SEIU. But many remain opposed, or ambivalent.

Asked about unionization, Alphonso, the LaGuardia ramp agent, wavered. “I think it’s a good idea, but, at the same time, it’s just a subcontractor company. It’s not, like, an official airline. So, to be honest, I’m not really sure about it. I don’t see Swissport as a serious company, that’s worthy of a union,” he said.

“The reason airlines hire a subcontractor is to save on money, so that they don’t have to be hiring their own employees,” he added. “If Swissport has to start paying their employees more, that means that they gotta ask the airlines to charge more money, and that would mean that the airlines would be like, all right, we might as well start bringing in our own employees, and forget about Swissport.” n DECEMBER 2023 THE AMERICAN PROSPECT 47

It’s not just far-right Republicans who undermine democracy. A majority of voters in the Bay State favor progressive policies, but don’t get them. Why not?

By Robert Kuttner

48 PROSPECT.ORG DECEMBER 2023

At first glance, Massachusetts seems to be among the bluest states in the nation. It sends an all-Democratic delegation to the U.S. House and Senate, including progressive champions Elizabeth Warren and Ed Markey.

And in the past two years, voters have rejected the long era of clubby, male, centrist, whiteethnic politics.

In 2021, Michelle Wu, a 36-year-old progressive Boston city councilor, was elected Boston mayor, the first woman and the first Asian American to hold the post. Then in 2022, Democrat Maura Healey, the former attorney general and an out lesbian, was elected governor. To succeed Healey as AG, voters chose a crusading progressive, Andrea Campbell, the first African American woman in the position. The state auditor, the state treasurer, and the lieutenant governor are also women. Since 2019, the U.S. House member for Boston and some inner suburbs, Ayanna Pressley, is the first Black representative from Massachusetts and one of the most left members of Congress.

Polls confirm that Bay State voters are resolutely progressive on a range of issues. But on policy, Massachusetts continues to lag far behind other Democratic trifecta states. If you unpack why this is the case, you appreciate that it isn’t only right-wing Republicans who undermine both democracy and popular faith in democracy.

It’s also corporate Democrats in one-party states.

But hold on, didn’t voters just elect reformers to the top posts? Not quite. The most powerful politician on Beacon Hill remains a 77-year-old state representative named Ron Mariano, who was elected by exactly 10,085 voters in Norfolk County. He’s the Speaker of the state House of Representatives. And the Massachusetts legislature has procedures to ensure total leadership control that would make Boss Tweed blush.

The leadership and lobbyists make deals behind closed doors. There are no recorded votes in House committees, where legislation is often sent to die, making it impossible to hold representatives accountable. Full texts of bills are often unavailable, and final passage on the floor is usually by voice vote. Technically, a member can demand a roll call, and it does happen once in a while. But to do it is to court retribution.

Outing a fellow member to “take a difficult vote” even has a uniquely Beacon Hill term of opprobrium. It’s called “spotting,” and is considered an unfriendly act. “You are not supposed to make anybody uncomfortable. It’s a culture of comfort that often trumps the interests of the working people who we represent and serve,” says state Sen. Jamie Eldridge, who chairs the Judiciary Committee, and is a rare effective progressive.

To further entrench boss rule,

JANDOS ROTHSTEIN

MASSACHUSETTS BLUES

DECEMBER 2023 THE AMERICAN PROSPECT 49

the Speaker can augment the $73,654 base pay of state reps, by sums ranging from $7,095.60 to $88,694.99. He can do this for more than half of the 160 members of the House, by naming them committee chairs, vice chairs, and other honorary leadership positions.

To cross the Speaker is to have your extra pay and staff taken away, and your office abruptly moved to the basement. A few members do choose to play the role of outsider, but they rarely accomplish anything.

“If you want that earmark for a senior center in your district,” says Diana DiZoglio, a former renegade legislator who is now state auditor, “you had better not challenge the leadership.”

Just as important are the feedback loops that legislative boss rule creates. The dictatorial role of the House leadership undercuts progressive grassroots activism, because even progressive groups that resent Mariano and his cronies still have to work with them to get half a loaf.

In short, Massachusetts may be all blue, but it’s the wrong kind of blue.

50 PROSPECT.ORG DECEMBER 2023

In other blue states such as Connecticut and California, effective alliances among grassroots groups, trade unions, the legislature, and the governor produce progressive wins.

Even in purple states such as Minnesota with very narrow Democratic control, party discipline and strategic alliances with an activist base have produced a string of progressive reforms.

The Massachusetts House has 134 Democrats and 25 Republicans. Of the 160 state reps, in the most recent election, 109 ran unopposed. The state Senate currently has 36 Democrats and just four Republicans. Incumbents thus have little to fear from voters, so they pay more attention to donors, corporate lobbyists, and local real estate interests.

The real opposition party is the minority of progressive Democrats in the legislature, but most are either co-opted, intimidated, or give up after a few terms to do something else with their lives. The House Progressive Caucus has had as many as 60 members. It has no staff or website, takes

no formal positions, and never crosses the leadership as a caucus.

You might think that such circumstances would be ripe for primary challenges. But incumbents have so much power to bestow benefits and raise money from corporate lobbyists that primary fights are rare and wins are even rarer. There were two challenges in 2022; both challengers lost.

Local progressive donors who could fund primary campaigns pay no attention to their own backyard. “There are a lot of wealthy donors in Massachusetts who give to national races,” says Eldridge. “Their view is, this is blue Massachusetts, we’re OK, local races don’t need our money.”

A compounding problem is the lack of home rule. Beginning in the 1920s, as Irish politicians came to dominate the city of Boston, the state legislature, which was still controlled by Republican Brahmins, acted to strip Boston of local governance rights. According to a comparative study by two scholars at Harvard Law School, other major cities such as Atlanta, Chicago, Den-

NANCY LANE / AP PHOTO

Ron Mariano, the Speaker of the Massachusetts House of Representatives, is the state’s most influential power broker.

Incumbents have such power to bestow benefits and raise money from corporate lobbyists that primary fights are rare and wins are even rarer. ver, New York, San Francisco, and Seattle have nothing like the limits suffered by Boston. This legal structure, authors Gerald Frug and David Barron wrote, “forces the city to rely on a narrow revenue base, limits the city’s ability to control its own expenditures, and distorts the city’s efforts to plan.”

Other cities can use an array of local taxes to fund local needs. San Francisco levies a business license tax, a real property transfer tax, a utility user tax, a parking tax, and a transient occupancy tax. Chicago has more than a dozen taxes. Seattle and Alameda County, California, added local taxes dedicated to mass transit. Boston, with the nation’s oldest subway system and among the country’s worst traffic congestion, can’t do any of that.

The only tax Boston does control is the property tax, which accounts for about 74 percent of its revenue. In the other cities studied, the property tax averaged about 20 percent. This leaves Boston heavily dependent on state aid, giving the legislature even more leverage. A secondary effect, Frug and Barron observe, is that these constraints depress civic engagement and create a psychology of “why bother.”

Massachusetts cities regularly file homerule petitions with the legislature, humbly asking for the authority to enact, say, rent control, or a real estate transfer tax to underwrite affordable housing. These are usually rejected, often via the usual method of being buried in committee.

This serves to blunt progressive impulses on the part of mayors, and to weaken progressive elected officials by making them seem ineffectual. It also cements the alliance between business elites, their allies in the legislature, and state governors.

Until Maura Healey, five of the past six Massachusetts governors were centrist Repub-

licans, liberalish on social issues (which are broadly popular here) and in the pocket of business on economic ones. That suits the legislature just fine.

Healey has been a careful student of this dynamic. She is the first to successfully transition from the attorney general’s office to the governorship, and this was not accidental. Crusading AGs make political enemies.

Previous AGs Martha Coakley, Tom Reilly, Scott Harshbarger, and Frank Bellotti all wanted to be governor and none succeeded.

Healey was increasingly cautious during her two terms as AG, bold mainly on broadly popular social issues such as reproductive and LGBTQ rights, but not seriously attacking the business establishment and corrupt pols, or taking political risks to promote criminal justice reform.

Healey was also a close student of her predecessor, Republican Charlie Baker, a two-term social liberal and fiscal conservative. Because the Massachusetts Republican Party has been taken over by Trumpists and no center-right GOP successor to Baker could be nominated, Healey won the general election in a walk, defeating Republican Geoffrey Diehl by nearly 30 points. So she had a mandate for an expansive program.

But Healey was especially mindful of the experience of the last Democratic governor, Deval Patrick (2007–2015), a progressive who went public with a bold program that was cut to shreds by the legislature and the business lobbies. Of the people I interviewed on background for this piece, several used almost identical language: “Maura Healey wants to be Charlie Baker’s third term.”

For her first high-profile act, Healey with great fanfare unveiled a tax cut, slashing the estate tax and the short-term capital gains tax as well as changing the sales tax formula to make it easier for multistate corporations to game the system. Her move infuriated liberals, who had been fighting for decades for a progressive income tax.

Progressives finally succeeded with two ballot initiatives enacted over four years, which took effect in 2023, adding a new top bracket of 9 percent for millionaires to the otherwise flat-rate tax of 5 percent, and dedicating the proceeds to education and transportation. The so-called Fair Share Amendment produced a revenue windfall of on the order of $2 billion a year. Healey’s tax cut gave much of that back to the

wealthiest residents of Massachusetts. The legislature, though far from progressive, actually revised Healey’s proposal to make it less regressive.

The bill did include some progressive elements, including an increase in the child tax credit. But Healey has relentlessly promoted her “tax cut,” supposedly to improve the state’s business climate. “On taxes,” says one leader who fought for the millionaire tax, “Healey is basically a Reagan Republican.”

Healey’s speeches have reinforced the bogus premise that taxes are driving rich people and entrepreneurs out of Massachusetts. In fact, Massachusetts, with its worldclass universities, hospitals, and research complexes, is awash in successful startups.

It’s a desirable place to live culturally and there is no exodus of the wealthy.

A state-by-state study by the IRS showed that Massachusetts has a lower rate of outmigration by rich people than 38 other states, and that the rate of people leaving the state was lower for the rich (3.1 percent per year) than for the middle class and the poor (3.5 percent). “If anyone is leaving Massachusetts,” says state SEIU Executive Director Harris Gruman, “it’s SEIU members who can’t afford to live here because of the housing costs.”

Having appalled progressives with her tax bill, Healey then turned around and sponsored a $4.1 billion housing proposal reliant on new bonding authority. Among other things, it would provide $1.6 billion for public-housing renovation and construction, and other subsidies that will produce some 40,000 new units of affordable housing.

The move won broad applause. Healey even surprised housing advocates by endorsing home-rule petitions to allow localities to enact transfer taxes on the sale of luxury housing, with the proceeds to support affordable housing. Cynics say she will rely on the legislature, which is heavily beholden to the real estate industry, to kill the idea.

Healey has also been strong on the fraught issue of how to assimilate immigrants and refugees who have flooded into Massachusetts, promoting legislation to expedite work permits. It’s another lowrisk issue where the humanitarian goals of progressives happen to converge with those of business, which needs the mostly lowerwage workers.

A kind appraisal would describe Healey’s administration to date as mixed. She creDECEMBER 2023 THE AMERICAN PROSPECT 51

ated a climate chief to coordinate initiatives on energy and environment, and appointed a respected environmentalist, Melissa Hoffer, to the new post. In contrast to her record as AG, where she ducked criminal justice reforms, Healey recently released new clemency guidelines.

Her appointments in transportation, especially to the long-suffering Massachusetts Bay Transportation Authority (MBTA), are considered a major improvement. Baker’s record on the MBTA, known as the T, was dismal. He replaced competent managers with chums from the conservative Pioneer Institute where he once worked, mostly theorists with no operational experience. The new general manager of the MBTA, Phillip Eng, is widely considered one of the best public-transportation executives in the country.

At the same time, Healey has retained several Baker holdovers, including his secretary of public safety, officials at the scandal-ridden corrections department, and key education policymakers. Budget experts reviewing the details of Healey’s 2023-2024 budget were stunned to see that a principal architect was Baker finance director John Caljouw, who had a paid job in 2018 keeping data files for Baker’s donor operation.

Progressives also see donor inf luence on Healey. She will soon face a test in her decision whether to permit expansion of a suburban airport called Hanscom Field, which is used by private jets that add to pollution, contradicting Healey’s ambitious zero-carbon goals. The surrounding communities are opposed. The unpopular idea’s biggest promoters are large Healey donors who cherish their personal planes.

Healey has done some good things. What she has not done is set a broadly progressive economic agenda and use her bully pulpit to advocate for it, much less work with progressive groups to advance it.

Boston Mayor Michelle Wu presents a welcome contrast to Healey. The daughter of Taiwanese immigrants, Wu was elected to the city council in 2013. On the council, she was a leading force for enactment of laws providing paid parental leave, limiting Airbnb-style short-term rentals, demilitarizing the police department, and reducing carbon emissions.

Originally from Chicago, Wu came to Massachusetts to attend Harvard and then Harvard Law School, where she became 52 PROSPECT.ORG DECEMBER 2023

very close to a professor named Elizabeth Warren. Wu worked as constituency director for Warren’s first Senate campaign in 2012. Warren backed Wu for mayor, a race that she ended up winning with 64 percent of the vote. She became the first woman mayor and the first in almost a century who was not a local.

Wu has a sunny temperament and doesn’t hold grudges. Under Wu, the City Hall contrast with the State House culture of retribution is striking. Wu can oppose a city councilor on a given issue one week and work closely with them on a different issue the next.

Wu’s mayoral term so far is a study in working to overcome structural obstacles that limit a mayor’s capacity to solve problems while navigating tricky conflicts among Boston’s diverse constituencies.

One signature campaign promise that was ridiculed by her opponents was free public transportation, a project she dubbed “Free the T.” As mayor, Wu managed to find $8 million in federal money to eliminate fares on three heavily traveled bus routes in Dorchester, Roxbury, and Mattapan, used mainly by working people of color; she hopes to add more.

Wu has made a number of excellent appointments, including a reform police commissioner named Michael Cox, who as an undercover police officer was viciously beaten up by other cops. She succeeded in getting a Boston seat on the MBTA board, and appointed Mary Skelton Roberts, a respected transportation expert formerly with the Barr Foundation.

She has also taken on contentious issues, such as the open-air drug market and homeless encampment near one of the city’s busiest intersections, the corner of Massachusetts Avenue and Melnea Cass Boulevard. Dealing with “Mass and Cass” divided law-and-order types from civil libertarians, and drug treatment advocates from those who want to crack down on dealers and street crime. Most of the people living in makeshift tents were dealing with mental health and addition problems, as well as being homeless.

Wu won the backing of a majority of a divided city council for allowing police to clear Mass and Cass as of November 1.

Homeless people were given shelter beds, while the city attempts to create a permanent facility that combines supportive housing and treatment. This remedy

Other than the property tax, Boston has no power to tax, leaving it vulnerable to the legislature for local fiscal aid. did not entirely please either civil liberties advocates or supporters of a treatment-first approach, but the mayor felt she had to act.

However, the same week the tents were cleared, Gov. Healey announced that the state had run out of emergency shelter beds and she would no longer enforce the Massachusetts right-to-shelter law. In September, Healey had asked the legislature for an emergency $250 million to finance more shelter units. But the House and Senate, squabbling over minor details, took a sixweek recess until after Christmas with no action. It was an epic case of the dysfunction between governor, House, and Senate.

Boston’s always tricky racial politics are sometimes a challenge for Wu, in a city that is 50 percent white, 23.5 percent Black, 20 percent Hispanic, and 10 percent Asian.

When Boston’s city council faced redistricting last spring, an initial map approved by Wu was rejected by a federal judge as too racialized. Wu had sought to increase representation of communities of color, and white incumbents were furious. The successful lawsuit, demanding a new map, was filed and bankrolled by two white councilmembers. Wu’s final map was then attacked by some Black and Hispanic leaders as too friendly to whites.

Wu was an outspoken advocate on the issue of police reform while on the city council, but she has trimmed some as mayor. As a councilmember, Wu supported shutting down the Boston Police Department’s badly flawed database on gangs, which was seen as racially biased. As mayor, she supported giving it additional funding. On the city council, all the yes votes for the funding were from white members and all the no votes were from members of color. On most issues, however, Wu has been able to get broad city council support.

One oft-heard criticism of Wu is that she’s not a great listener. “She often makes up her mind without adequately broad consultation,” says one player who works closely with City Hall. Wu decided, pretty much on her

Despite winning with a mandate for an expansive program, several observers said that Gov. Maura Healey “wants to be Charlie Baker’s third term.”

STEVE LEBLANC/ AP PHOTO

own, to expand the O’Bryant School of Math and Science, the most diverse of the city’s three exam schools. This was a welcome idea. But Wu is moving it from mostly Black Roxbury in central Boston to a mothballed high school campus far from good transportation on the largely white far fringe of the city. The backlash was extensive.

“The Black community has never been her base, and many people of color don’t feel listened to,” says one progressive leader. On balance, however, Wu’s decisiveness wins more praise than criticism. And in the November 7 municipal election, four progressive Wu allies, two of them people of color, gained seats on the city council, giving her a very strong working majority.

Wu has also moved to take responsibility for quasi-independent city government entities that previous Boston mayors were happy to hide behind. One is the Boston Redevelopment Authority (BRA), long in the pocket of developers. Under mayors Tom Menino and Marty Walsh, the BRA presided over such planning disasters as the development of a largely vacant 1,000-acre tract of land rebranded as the Seaport District,

which now has eight luxury hotels, some 80 restaurants, no affordable housing, little public transit, and no requirements on developers to mitigate the risks of sea level rise, despite the fact that the Seaport is just a few feet above sea level.

Under Walsh, the BRA was renamed the Boston Planning and Development Agency. As BPDA director, Wu appointed Arthur Jemison, an admired city planner who grew up in public housing. The BPDA has been repurposed to focus on affordable and green housing throughout the city. Wu was willing to take on developers by increasing the percentage of affordable units required in all new construction from 13 to 17 percent.

She also filed home-rule petitions with the legislature asking for authority to enact local rent control as well as a transfer tax on sales of luxury homes.

Wu has also made some nervy moves to improve Boston’s public schools, which have chronically underperformed, more so since the COVID pandemic. She has done this under pressure of a threatened state receivership if she failed to make drastic changes.

Some 30 percent of Boston schools perform in the bottom 10 percent of the state. Steadi-

ly declining enrollments have led to very small schools in states of advanced physical disrepair. Maintenance outlays, combined with rising costs for transportation and special education, lead Boston to spend an astounding $28,800 per student to deliver substandard outcomes.

In 1992, Boston’s one previous reform mayor Ray Flynn changed the structure of the Boston School Committee from elected to mayor-appointed. Wu wants to keep it that way, both to promote reforms and to be held accountable for them. In February, Wu vetoed a proposal passed 7-5 by the city council to return to an elected school committee. Wu then used her mayoral control to tackle two thorny education issues that previous city administrations have allowed to fester.

Boston’s costly and perverse approach to special education is heavily based on assigning a student one of 53 separate diagnostic codes. The code then generates the extra funding for the student and determines where the student is placed, leading to the warehousing of special-needs kids in “substantially separate” facilities at more than twice the national average. This is the oppoDECEMBER 2023 THE AMERICAN PROSPECT 53

54 PROSPECT.ORG DECEMBER 2023

MICHAEL DWYER / AP PHOTO

site of what the inclusionary mainstreaming approach pioneered in Massachusetts in the 1970s was intended to achieve.

“Many of these kids have learning difficulties rather than learning disabilities, and many teachers are happy to have them out of their classrooms,” says Ellen Guiney, one of the city’s leaders on educational reform.

To Wu’s great credit, she and her school superintendent, a former Boston school principal named Mary Skipper, announced a plan in October that would scrap most of the system of coding and warehousing in favor of bringing most special-needs kids back to regular classrooms, but with extra resources. “All Boston public schools must be inclusive,” Skipper declared.

Wu also has tackled the fraught school consolidation issue by nesting it under her Green New Deal for Boston Schools program, which proposes to make all public buildings carbon-neutral and spend The Big Dig, an expansive tunnel project, cost $22 billion. No such federal public investment is $2 billion from the city’s capiin the offing today. tal budget to upgrade facilities. inner suburbs, Somerville and Medford, Dig cost $22 billion, courtesy of U.S. House Wu reasonably argues that this can’t be done without substantial closing of became a fiasco when it turned out that the Speaker Tip O’Neill and Sen. Ted Kennedy. small, antiquated schools. Her School Com- tracks had been laid too closely together by Nothing similar is in the offing today. mittee began the process by voting in June a contractor, forcing trains to crawl at three Low-lying Boston dodged a bullet in to combine four small elementary schools miles per hour. Baker MBTA appointees had 2012 when Superstorm Sandy hit New York. been made aware of the problem in 2021 but Experts estimate that a nine-foot storm into two.

On both reform of special ed and consoli- did not go public with the bad news because surge would flood half the city, put the subdation of schools, Wu enlisted the support of pressure to do the ribbon cutting while ways out of commission, and overwhelm the sewer and sewage treatment system. of leaders of the Boston Teachers Union, Baker was still in office.

The Fair Share progressive income tax Sea-level Logan Airport would suffer damsome of whose members like the system just the way it is. “The union now supports will produce half a billion dollars in new age. Studies project that a protective system an inclusive approach to special ed, which earmarked funds for transportation, includ- of Dutch-style dikes and seawalls would is a reversal of their past position,” says one ing just over $300 million for mass transit. cost $8 to $11 billion. There is no source for insider. “That took some courage on the part That sounds like a lot of money. But the that funding. However, repairing the damof the union leadership.”

MBTA puts its capital needs at over $24 bil- age from one or more hurricane direct hits The problem of the Boston Public Schools lion. And Boston, the hub of the regional would cost a lot more. Sandy cost New York is not money, but the long-standing misal- transit system, is powerless to tax itself, City $19 billion and did about $70 billion of location of available funds and a culture much less commuters. damage nationally. that resists change. On this front, Wu is In past years, Boston’s need for public The Boston Green Ribbon Commission, leading. In other areas, notably housing and investment was solved partly from Wash- an influential civic group that includes all transportation, the broader challenge fac- ington. The Big Dig turned Route 93, the of the city’s leading businesses and banking Wu is resources, under the control of sole north-south trunk road into the city, ers, has pushed for an independent taxing Beacon Hill. from an ugly and chronically congested authority that could raise the money on the elevated highway into a more efficient set scale needed. But that would require legislaThe MBTA has long been underfunded and of tunnels, open space, and development- tive approval. mismanaged. This summer, a long-awaited ready land, and built a new tunnel to the On the housing front, Greater Boston extension of the system’s Green Line to two airport to further ease congestion. The Big faces one of the country’s worst mismatches

The problem of the Boston Public Schools is not money, but the long-standing misallocation of public funds and a culture that resists change. of income and housing costs. The average rental cost of a one-bedroom apartment in Boston, where the median income is about $37,500, is more than $2,800 a month.

One remedy is to require developers of market-rate or luxury housing to set aside a percentage of units as affordable, as Boston and Cambridge do. But most white suburbs resist the idea, and neither the governor nor the legislature is inclined to override local decisions.

Earlier this year, in the inner suburb of Braintree, a developer proposed to build 495 units of low-rise multifamily housing on a large, underutilized parking lot near a shopping mall and a subway station.

None of the units were even slated to be affordable. When it became clear that town authorities would reject the needed zoning change, the developer gave up. There were no consequences.

Some blame resentment of the relative weight of greater Boston in the state’s politics. But the hidden issue behind much of this is race, says Ted Landsmark, a longtime Boston civil rights and social activist who is now a professor at Northeastern University, where he directs the Dukakis Center. “When busing came in, a lot of white people moved out,” Landsmark says. Affluent whites have since moved back into trendy, gentrified Boston, but few send their kids to Boston public schools. “Despite the region’s increased diversity, Boston’s schools and professions are as segregated as they ever were.”

In 2021, the legislature passed a law to promote transit-oriented development. It requires some 177 communities served by MBTA subway and commuter stations to liberalize zoning laws to facilitate multifamily housing. But the law doesn’t require any of the housing to be affordable.

The Bay State’s new attorney general is Andrea Campbell. She has a remarkable

personal story. Soon after she was born, her father was sentenced to an eight-year prison term. When she was still an infant, her mother was killed in a car crash en route to visit her father in prison. Campbell’s two brothers both served time, and she spent her childhood with relatives and in foster care.

Campbell made it to the prestigious Boston Latin School, then to Princeton, and then to law school at UCLA. She worked in public-interest law firms, in a private firm doing labor law, and as Gov. Deval Patrick’s deputy general counsel. She was elected to the Boston City Council in 2015, defeating a longtime incumbent. On the council, her close ally was the councilmember Ayanna Pressley. One of Campbell’s signature issues was police reform, an unusual background for the state’s future top prosecutor.

In 2021, Campbell ran for mayor, was endorsed by The Boston Globe, and for a time was favored to win. But with the appointment of Mayor Marty Walsh as President Biden’s labor secretary, Kim Janey, then the lackluster city council president, automatically became acting mayor. Janey, like Campbell, is African American. Janey’s surprise entry into the mayoral race split the Black vote, and neither Campbell nor Janey made the runoff. Campbell then decided to run for AG in 2022, winning the Democratic primary by more than 16 points, and cruising to victory in the general election.

As AG, Campbell created a Reproductive Justice Unit, convening several leading law firms and the ACLU to establish a hotline so that anyone threatened can get legal help.

That includes people from out of state who have come to Massachusetts to obtain legal abortions or gender-affirming care, and are being threatened by bounty hunters or vigilantes under the laws of other states. This action harks back to the days when Massachusetts was a haven in the era of the Fugitive Slave Act. Campbell has also been strong on criminal justice reform and police reform. Campbell supports restrictions on the use of facial recognition software by police and prosecutors. As a candidate, she supported an end to qualified immunity for police officers.

Campbell presents a contrast with her predecessor. When the proposal to end qualified immunity for cops was under debate in 2020 and the House and Senate had passed different versions, Maura Healey ducked the issue saying that she was for reform, but on the other hand, “we don’t

want a situation where public employees are paralyzed.” The legislation never passed.

Similarly, when sentencing reform was before the legislature in 2018, Healey declined to take a strong position. Healey was also weak on a huge scandal involving corruption at the state drug testing lab, where thousands of people were sent to prison based on lab results that were made up. Civil libertarians wanted those records wiped clean. Most district attorneys didn’t, and Healey ducked the issue. The records were eventually cleared by an ACLU lawsuit.

As a statewide official, Campbell has been a little more prudent. As AG, she has not pushed for an end to qualified immunity for cops, and she is trying to mend fences with prosecutors. On balance, Campbell is the most reformist AG in decades. But Campbell’s work, as good as it is, operates largely at the periphery of the structural barriers to major reforms.

Might reform come from inside the legislature? One brief episode did occur in the mid-1980s, when a particularly autocratic House Speaker named Tommy McGee double-crossed his heir apparent, Majority Leader George Keverian. McGee had promised to retire so that Keverian could become Speaker, but changed his mind.

Keverian then led a backbench revolt that deposed McGee. When he became Speaker in 1985, Keverian reformed the rules to make the legislative process somewhat more transparent. But after Keverian left in 1990, his successor reinstated the autocratic old rules and also shut down the independent Legislative Research Bureau.

The state auditor, Diana DiZoglio, wants to conduct a full audit of the legislature to shine a light on slush funds, corruption, and tricks the leadership uses to keep control. The legislature has refused to cooperate. DiZoglio has launched her own ballot initiative to confirm her authority, but Campbell, ordinarily an ally of DiZoglio, has issued an advisory opinion that the proposed audit is unconstitutional. Even if DiZoglio ultimately prevails, the audit could embarrass the leadership but not necessarily compel reform.

In short, it would take a dramatic upsurge of progressive organizing, including primary challenges, to fundamentally change the game. But the several forms of blockage described in this article have a depressive effect on activism.

DECEMBER 2023 THE AMERICAN PROSPECT 55

The Connecticut legislature’s rules preclude the kind of bossism that paralyzes Massachusetts.

56 PROSPECT.ORG DECEMBER 2023

Another group, the Massachusetts Voter Table, works with nonprofits that promote voter education work through doorknocking and phone banks, especially in communities of color. The Massachusetts Communities Action Network has strong community bases and some victories on economic and housing issues.

Yet another organization, Act on Mass, promotes progressive issues, pushes for procedural reform, and trains activists.

Still another, Mass Alliance, functions as a coalition of other progressive organizations and seeks to broker a common agenda. It has a budget of about $300,000 and a staff of around four.

“Right now, our community is anemic,” says Jordan Berg Powers, who served for 13 years as executive director of Mass Alliance before leaving to become a political consultant last spring. “There are a jillion little groups in a few concentrated parts of Massachusetts—they don’t coalesce, they don’t have money for long-term organizing, they don’t put effective pressure on the legislature.”

Sen. Jamie Eldridge echoes this critique from the perspective of a progressive legislator. “A lot of the liberal activists and groups are too passive,” he told me, “not willing to call out elected officials who are not fighting or voting for progressive policies, and

have not properly organized to elect more progressive candidates.”

One group called Raise Up Mass periodically goes into high gear to promote ballot initiatives. Progressives have won five in recent years. They included measures to raise the state minimum wage (twice), a law mandating paid sick days, a paid family medical leave act, and most recently the Fair Share millionaire tax.

In three of these cases, progressive success in qualifying an initiative for the ballot led to negotiations with the legislative leadership, which ultimately enacted a close equivalent measure, and the proposition never appeared on the ballot. Between ballot campaigns, there are ongoing strategy meetings and lobbying of the legislature.

But Raise Up Mass does not do endorsements or primary challenges.

This organizational patchwork goes back to the collapse of Massachusetts Fair Share in the early 1980s. Founded in 1975, Fair Share had 110,000 dues-paying members at its peak. It built strong chapters in metro Boston, Worcester, Springfield, Lowell, Fall River, and Lynn. Organizers enlisted local people, substantially working-class, in neighborhood chapters, Saul Alinsky style.

Issues were defined by the membership. It

JESSICA HILL / AP PHOTO

The problem is not a lack of grassroots groups; Massachusetts has hundreds, if not thousands. The state is also home to worldclass policy research and advocacy organizations. On tax and budget issues, the Mass Budget and Policy Center is considered one of the country’s best. But compared to other blue states, the whole is weaker than the sum of its parts.

Many of the groups are too small, often dependent on foundation grants, and in turf competitions with each other. Others are reliant on state or city funds, and reluctant to take on public officials.

To some extent, this same dynamic occurs everywhere. A key difference is that Massachusetts has no single statewide progressive membership coalition that agrees on priority issues and common strategies, endorses candidates, recruits activists, runs challengers, and keeps voter files.

Instead, there are several partial statewide groups with overlapping memberships, and they sometimes trip over each other. A group called Progressive Mass does some of what’s needed. It has several strong local chapters, takes positions on issues, and rates candidates. Executive director Jonathan Cohn is respected in the firmament of progressive players. But the group has never reached the scale needed.

The intriguing question is how much influence the Working Families Party can have in non-fusion states like Massachusetts. could turn out hundreds of people at meetings on trademark issues like schools, public services, utility rates, rent control, and taxes.

Fair Share relied heavily on funding from the federal VISTA program. When Ronald Reagan demolished VISTA in 1982, Fair Share failed to adjust and collapsed in 1983. Ever since its demise, repeated efforts to recreate something like it have faltered.

One of Fair Share’s leaders, Prospect board member Miles Rapoport, moved to Connecticut, succeeding Marc Caplan as director of the Connecticut Citizen Action Group (CCAG). Caplan, in turn, organized a broad coalition of progressive organizations called LEAP—the Legislative Electoral Action Program. LEAP’s core was four key progressive unions: the UAW, the IAM, the Connecticut Federation of Teachers, and District 1199 of the SEIU. It also included CCAG, leading women’s organizations, the Connecticut Gay and Lesbian Task Force, several organizations of color, and others.

LEAP coordinated joint endorsements of candidates, recruited activists to run for the legislature, and offered training for campaign managers and candidates alike. It was a challenge machine Democrats had not seen before.

One of the first successful LEAP candidates for the state legislature was Doreen Del Bianco in 1982, a working-class leader in the Waterbury CCAG chapter. The next few cycles saw the election of several progressives, including Rapoport and Chris Donovan, an organizer for both CCAG and the SEIU. Donovan would go on to become Speaker of the House.

LEAP-elected representatives formed a Progressive Legislators’ Group. Numbering close to 30, they met regularly among themselves and with the leaders and lobbyists for progressive organizations. Victories came, including passage in 1991 of the state income tax, in a state where Democrats had routinely

taken a New Hampshire–style “pledge” never to have one. LEAP-led progressives were the key allies of independent Gov. Lowell Weicker in the six-month battle for its passage. Today, the income tax is the progressive source of close to 40 percent of the state’s budget.

Connecticut is now a reliably Democratic state with a progressive congressional delegation and liberal statewide officers. The state has a $15 minimum wage annually indexed to inf lation, paid family leave, early voting and same-day registration, and a successful system of public financing of elections, the only statewide system created legislatively and not through ballot initiatives. Although LEAP no longer exists institutionally, its culture and broad coalition still exist.

Effective leaders from the progressive community are routinely elected to the state legislature and to committee chairs and legislative leadership positions.

Two major differences with Massachusetts help account for Connecticut’s success.

First, the rules of the Connecticut legislature preclude the kind of bossism that paralyzes Massachusetts. All committee votes are recorded, roll calls are normal (as are floor amendments), full texts of bills are available, details are negotiable, and challenges to the leadership position are not viewed as hostile acts. All that in turn makes it possible to hold legislators accountable.

Second, Connecticut is one of two states (along with New York) that permit fusion voting, meaning that a candidate may run on more than one ballot line. This created an opening for one of the most effective progressive organizations now on the scene, the Working Families Party. A WFP endorsement brings with it on-the-ground campaign help. As a party, the WFP also helps progressives unite around a coherent ideology, program, and set of strategies.

Rapoport ran statewide and was elected Connecticut secretary of state in 1994, before the WFP. The third party in those years was called A Connecticut Party, created by Weicker for his gubernatorial race in 1990. Rapoport received 366,380 votes on the Democratic line and 127,615 votes on the A Connecticut Party line. He won by about 2,300 votes, demonstrating the benefits of fusion.

The WFP has had substantial influence in both New York and Connecticut. An intriguing question is how much influence it can

have, as a quasi-party, in non-fusion states in need of such an organization—Massachusetts, for example.

I put the question to the WFP’s national director of campaigns, Joe Dinkin. “We’ve done a lot of work on the meaning of a party,” he replied. “To us, a party is a group of people who share a platform and work together to make change, and use elections as the primary tool. That means we’re building a community of voters and candidates and donors and activists and institutions like community groups and unions that come together to recruit candidates, make endorsements, and build a political strategy together. That’s the core of a party, not a line on the ballot.”

For now, the WFP is working to build something very much like a party in states that don’t have fusion. For the WFP’s national leaders, fusion is still a first best where it can be attained. In Massachusetts, to date, efforts have been local and low-key, in line with the WFP’s strategy of building from the ground up.

In Worcester, New England’s secondlargest city, Working Families is active as an organization and brand, recruiting and endorsing candidates for all major local offices, coordinating with other progressive organizations and unions, and organizing volunteers to help elect endorsed candidates. In 2021, this effort paid off when three Working Families candidates were elected to the nine-member city council.

In this year’s elections, Working Families’ candidates picked up another seat. A separate ballot line would be even better, but Worcester progressives organized as Working Families have managed to be a major presence without it.

The broader expansion of the WFP to non-fusion states is a subject for another day. And it will be a while before Working Families goes statewide in Massachusetts.

For now, the Worcester success suggests something of the broader strategy that Bay State progressives need.

Some liberals have been dismissive of process reforms as the stuff of well-meaning “goo-goos”—good government types, arguing that what matters is substance.

The Massachusetts experience suggests that this premise is wrong. When “the rules are rigged,” to borrow Elizabeth Warren’s famous phrase, no substantive gains are possible. When they are unrigged, new avenues for change open up. The rules determine whether democracy can work. n DECEMBER 2023 THE AMERICAN PROSPECT 57

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CULTURE

What Good Were the Video Game Console Wars?

Our writing fellow pines for times when the video game industry wasn’t so consolidated and littered with junk fees galore.

JANDOS ROTHSTEIN

By Jarod Facundo A decade ago, sitting in a world history class, I hollered at my friends, “GTA over GPA!” I was 15 years old, still a hardcore gamer back then. My teacher shot a bewildered look toward me as I carefully explained how today was the release date of the long-awaited Grand Theft Auto V, the vast and anarchic open-world crime game, which would showcase the fullest capabilities of Sony’s PlayStation 3 and Microsoft’s Xbox 360. It only made sense to prioritize my gaming ahead of my schoolwork. My high school teacher

preorder a PS4, buy a TV, and then buy GTA V and The Last of Us, a highly anticipated zombie apocalypse game that has recently been adapted into a TV show.

At this point, I’d been playing video games for more than ten years, and I owned wasn’t convinced, but she didn’t write me every one of Sony’s consoles—a certified fanboy. But 2013 was different. I wasn’t old a detention slip either. Whew.

In my friend group, some of us had Play- enough in 2006 to appreciate the leap from Stations, others had Xboxes. We’d trash-talk the PlayStation 2 and Xbox to PlayStation each other about who had the best hard- 3 and Xbox 360. This time, though, I was ware, as if we actually could measure the attentive, ready, and had a front-row seat. resolution and frame rate at that age. (What I began thinking about 2013 and my years we actually cared about was the quality of as a hardcore gamer while reading news of exclusive games only available on one major structural changes in the game Gaming or the other platform.) industry. Unity, the popular multiSchool had started two weeks platform game engine, announced before and I’d just wrapped up my first new changes for developers who use the summer job where I bused tables at a dingy software’s tools when making video games. diner near Lake Michigan. I had a simple Departing from the traditional model of goal that summer: save enough money to charging video game developers a one-time DECEMBER 2023 THE AMERICAN PROSPECT 59

CULTURE fee, 404 Media reported that Unity would demand an installation fee beginning next year, along with several other price hikes.

This fee meant that each time a customer installed a game developed on a Unity engine, the developer would have to pay a fee—a potentially enormous new expense.

This move drew immediate blowback, and several developers swore off the platform.

Unity said that it was rolling back the reinstall fee, but the other price increases stayed intact. By October 9, The New York Times reported that Unity’s CEO John Riccitiello was departing after nine years there.

Shortly after the Unity fiasco, antitrust authorities failed to stop the largest tech acquisition of all time. After more than 20 months of legal sparring, Microsoft completed its $69 billion purchase of Activision Blizzard, one of the largest third-party video game publishers, owner of some of the most valuable intellectual properties like World of Warcraft and Call of Duty, and parent company of several video game studios. For a reference point, the industry brings in an estimated $180 billion in revenue annually, which is more than movies, books, and music combined. As the industry consolidates into vertically integrated conglomerates running on a subscription model, the artistic quality of games may suffer, and the viability of the industry may even be under threat.

In the heyday of the console wars, from the 1990s through the mid-2010s, the video game business model was straightforward.

Companies like Nintendo and Sony produced hardware that would release every five or six years. Developers would make games for those consoles (or for PCs), publishers would sell them as individual copies, and the revenue would be shared between all three parties.

Throughout most of the 1990s, it was Nintendo versus Sega, which battled to bring the traditionally youth-oriented arcade experience into the home with their Mario and Sonic series, respectively. But things changed when Sony entered the American market in 1995, with a more mature selection of games on its PlayStation.

Sega, bleeding market share, attempted to fight both its competitors at once with the Dreamcast in 1999. Veteran gamers often point to the console’s impressive specs and array of titles available at launch. But it couldn’t define itself against the PlaySta60 PROSPECT.ORG DECEMBER 2023

tion 2, which released the following year, or match Nintendo’s premiere video game console for families. Sega discontinued the Dreamcast in 2001, and then gave up the console business for good, becoming just a third-party developer.

Microsoft restored competition with its first Xbox in 2001, which was aimed mainly at Sony. Nintendo, meanwhile, secured dominance over the family-oriented segment of the market, and left off trying to compete on performance. This has worked quite well up to the present day; when households own more than one console, as a rule one of them is a Nintendo.

For gamers, this had some advantages.

Console manufacturers had an incentive to pay top dollar for great exclusive games— sometimes by producing them themselves, as Nintendo typically does. Meanwhile, developers had an incentive to make widely appealing games to maximize sales, and those who opted out of exclusivity could typically port their game to several consoles. No matter how one played, there was generally a good selection of fun titles to choose from.

But it wasn’t all great. Few are as attuned to how rapidly the video game industry was changing during this period as someone like Adam Sessler, the legendary video game journalist.

For him, the console wars pushed each company to outdo the other to bring “sophisticated” PC gaming experiences to a console audience. But at the same time, he believes that the console wars made gamers obsess over hardware rather than artistic quality.

“All of these numbers under the hood are somehow more important than what’s on the screen,” Sessler said.

Sessler took me back to 2000, when Sony got its PlayStation 2 on the market a year before the original Xbox. Ultimately, the PlayStation 2 sold more than 150 million units, while the Xbox sold only about 24 million. But Microsoft gambled by buying an Apple game developer that had been working on an action/adventure game set deep in space. Halo: Combat Evolved became a big success, and the sequel, Halo 2, sold eight million copies, making it the best-selling game on the first-generation Xbox. To this day, the franchise elevated what gamers could expect.

Then Microsoft turned the tables on Sony, announcing it would release the Xbox 360 a year before Sony’s PlayStation 3.

In response, Sony released a trailer for its next-generation shooter Killzone 2, its

The Sony PlayStation was one of the biggest combatants in the console wars. answer to Halo. GameSpot, a leading game publication, said at the time, “Killzone 2 is definitely one of the most impressive visual demos ever to appear at E3.” That implied Sony’s hardware was excellent, and the demo indicative of what gamers should expect.

But alas, the version of Killzone 2 was prerendered—meaning it didn’t actually run on the future PlayStation 3’s hardware.

All this touched off a firestorm of criticism.

But “the whole controversy really was immaterial to how Killzone 2 was a good game …

It was a distraction from everything but the video games themselves,” Sessler said. Similar fights kept breaking out, as companies bent the truth about graphics or technical specifications to build marketing hype.

Killzone never became the Halo-killer Sony had hoped for. Sony later tried pairing the PlayStation 4 launch with the new Killzone: Shadow Fall. The game sold only 2.1 million copies.

Ultimately, the war between Sony and Microsoft partly turned gamers into “unpaid cheerleaders for these large corporate entities that at the end of the day don’t care about them that much,” Sessler told me. This dynamic infected how developers themselves made games. “They were forced to do things with their games that justify the marketing of the console, even though that might not actually make for a better game itself,” he said.

When Call of Duty 4: Modern Warfare, a flashy military shooter with cutting-edge graphics, was a surprise smash hit, selling seven million copies in its first year, the landscape changed. Developers chased blockbuster-style games by devising the fanciest graphics, which took more time and

Game Pass subscribers trade access and convenience for autonomy and ownership. cost more. This raised expectations among gamers, leading to even more expensive development, which prolonged development cycles even further, leading to even higher expectations. All this squeezed out the innovative mid-budget title, the equivalent of the middle market for films. “Strange chances were taken by developers prior to Call of Duty,” Sessler told me. “It’s very similar to what’s happening in movies as well, the curse of the superhero movie.”

Behind the scenes, the video game studios developing megahits for hungry gamers pushed their employees to the brink, as Jason Schreier, the longtime video game journalist, documented across his two books, Blood, Sweat, and Pixels and Press Reset.

“Crunch,” what the industry calls the months of 14-hour workdays before a game ships, is often rewarded with a short period of celebration, followed by mass layoffs.

This vicious boom-and-bust cycle naturally doesn’t apply to executives making hiring decisions. One review of Schreier’s Press Reset highlighted an Electronic Arts employee’s experience where he and his colleagues worked 80-hour weeks while executives normally left at 5 p.m.

One of those EA executives was John Riccitiello, the former CEO of Unity mentioned earlier. While at EA, Riccitiello once suggested to shareholders that they could charge gamers each time they reloaded their guns in the first-person shooter Battlefield.

Riccitiello eventually resigned under pressure from the company, reportedly for lagging financial performance.

Still, while the pay-per-reload suggestion was absurd in its time, that model would become the protean blueprint for the industry’s future. As consoles became connected to the internet, publishers and developers started designing games to be played indefinitely, like the cartoony shooter Fortnite, and loading them up with small fees (called “microtransactions”) for in-game

items and services. Rather than a one-off transaction for a single experience, companies tried to hook people with impulse control problems who would end up paying astronomical sums. In industry lingo, this tiny population of gamers would be called “whales” because of their outsized impact on the company’s bottom line.

Now, with the rise of the Microsoft-Activision-Blizzard colossus, the console wars are adapting once more. In the immediate term, Xbox gamers will benefit from the merger because all of Activision’s game library will be included in Game Pass, Microsoft’s $10-per-month subscription service, which offers consumers a library of more than 450 games to play at any time, either by downloading them or via streaming. PC Game Pass subscribers will have access to more than 400 video games.

In money terms, this is an undeniable bargain. Compare $10 a month for access to almost 500 games versus the standard model of paying $70 for a single game.

Gamers seem to like it too: Browse Reddit posts on /r/Xbox about Game Pass, and the service receives positive reviews almost across the board.

But there are trade-offs too. First, subscribers don’t own those games; if they stop paying, access is cut off. They trade access and convenience for autonomy and ownership. Second, access to one’s game library must come through the Microsoft system, with all manner of controls and surveillance. One can play games offline, for instance, but only for 30 days.

It might not be a good deal for Microsoft either. The flip side of Game Pass is the company forgoing a ton of revenue from the individual-sale model. On Reddit, for example, gamers commonly ask each other if they should just wait for a game to eventually land on the service rather than buying it. Financial details about Game Pass have been slow to arrive. Phil Spencer, the CEO of Microsoft’s gaming division, insists Game Pass is profitable and accounts for 15 percent of the gaming division’s revenue.

However, document leaks from the Federal Trade Commission’s challenge to the Microsoft-Activision merger earlier this year complicate this narrative.

We do know that Game Pass has somewhere north of 25 million subscribers, producing $235 million in monthly revenue.

But we also know that this kind of subscription model has been a flop in many other

entertainment sectors. Spotify has consistently lost money. Netflix is profitable, but all the other movie studio streaming platforms are bleeding cash. It turns out that producing exclusive content and operating a massive online database are expensive—and that holds double for games, whose files are commonly immense—while for developers, making content exclusive means losing sales on other platforms.

Sony, naturally, is trying to compete with its own subscription service. Last year, the company shuttered its separate video game streaming service, PlayStation Now, and rolled the streaming capabilities into its preeminent subscription service for access to multiplayer games, PlayStation Plus. The result is Sony now offering gamers tiers of services with varying perks. The most expensive includes the video game streaming option.

The challenge in the coming years will be how developers adapt to this changing environment. Sessler noted that blockbuster titles take longer to make than ever before.

For example, Grand Theft Auto VI, which is only finally being announced ten years after the release of GTA V, has a reported budget of more than $1 billion. Simultaneously, the tools to make a video game are more readily available too. On a positive note, Sessler said, “Unity’s eye-popping behavior is a good cautionary tale,” referring to the blowback the company received after rolling back parts of its pricing scheme.

Given his experience overseeing the industry, I asked Sessler where he thought we were heading. “I don’t think the console war archetype is useful any longer for the consumer. I think it’s useful in terms of a framing device to understand the health of the industry.”

Maybe the end of the console wars shifts the focus to building better games rather than better hardware. But the true test won’t be fully apparent until Microsoft’s ten-year agreement to keep Call of Duty on Sony’s devices, which was part of the merger agreement, ends. In the meantime, both Sessler and the industry analyst Nick McKay told me that it’s likely Sony, as a much smaller company, tries picking up studios to regain ground the PlayStation could lose in a doomsday scenario where Microsoft unilaterally blocks Sony from Activision titles.

Until then, as McKay said, “the console wars still definitely matter.” n DECEMBER 2023 THE AMERICAN PROSPECT 61

CULTURE

Democracy’s Deserters

How did we get to the breaking point in American politics?

By Aziz Z. Huq Tyranny of the Minority: Why American Democracy Reached the Breaking Point

By Steven Levitsky and Daniel Ziblatt Crown When historians one day try to explain the decline of 21st-century American democracy, they may well point to Republican leaders’ willingness to minimize and excuse the violence at the Capitol on January 6, 2021.

In denying the seriousness of that effort to block the peaceful transfer of power, those Republicans conformed to a political type that Steven Levitsky and Daniel Ziblatt call the “semi-loyal democrat.” This is a politician who nominally supports democracy but in practice ignores co-partisans’ extralegal and often violent efforts to subvert and overturn it.

Semi-loyal democrats are indispensable to a democracy’s undoing, Levitsky and Ziblatt explain in their crisply argued new book, Tyranny of the Minority. An authoritarian like Donald Trump would find it hard to take power without the cover that semiloyal democrats provide. They are central to the question at the book’s heart: Why have Republicans become so disaffected with American democracy that they are now likely to give their 2024 presidential nomination to a person who has betrayed it? The question is the right one, but the answers they provide fall short of satisfactorily explaining how this has happened and what to do in response.

Best known for their 2018 book How Democracies Die, Levitsky and Ziblatt are leading authorities on the rise and fall of democracies in the world and consequently well positioned to offer insight into American democracy’s troubles. According to a wealth of research, the United 62 PROSPECT.ORG DECEMBER 2023

States was not a candidate for democratic breakdown. For example, a much-cited 1997 study by political scientists Adam Przeworski and Fernando Limongi found that no democracy richer than Argentina in 1975—at a per capita income of $35,682 in contemporary dollars—had ever broken down. The United States was the very model of a wealthy, mature, stable democracy. If past patterns held, it couldn’t break down, or so it seemed.

Yet American democracy has begun to unravel. People of all ideological shades are increasingly likely to disdain those with different partisan views. Among both Democrats and Republicans, similar, albeit low, fractions express support for political violence. But among the two parties’ elites, there is no similarity in the repudiation of democratic norms. The Republicans stand apart.

To underscore this point, Levitsky and Ziblatt cite a study ranking the 261 Republican members of Congress seated in 2021 on six actions advancing the false claim that Joe Biden lost the 2020 election. More than 60 percent, or some 161 elected officials, adopted antidemocratic positions on at least five of these six points. Another 54 flunked four of the five questions. Of the 6 percent who consistently prioritized democratic norms over partisanship, most had either retired or lost primaries by 2022. In contrast to the prevailing Republican pattern, Levitsky and Ziblatt point out, Democrats have made no analogous effort to deny the validity of the elections they have lost.

Levitsky and Ziblatt offer two lines of explanation for the change among Republicans—one concerned with the history of racial conflict, the other with the U.S. Constitution. Starting with the unjustly overlooked Wilmington, North Carolina, massacre of 1898, Levitsky and Ziblatt chart how racial conservatives, first in the Southern Democratic Party, and later in

the national Republican coalition, have actively undermined election machinery in response to peaking racial resentment.

Their tale jumps from Redemption to Strom Thurmond’s 1948 “Dixiecrat” party, Barry Goldwater’s 1964 presidential campaign, and the spike in racial resentment around Obama’s presidency. For Levitsky and Ziblatt, this history shows how anxiety over race has repeatedly overwhelmed fidelity to democratic norms.

Their second line of explanation turns on institutions largely created by the Constitution that now tilt systematically against democratic rule. The Senate, Electoral College, and impossibly difficult amendment rule of Article V are all hardwired into the Constitution. All flowed in part from the framers’ fear of popular, redistributive majorities. Other counter-majoritarian aspects of U.S. government have no anchor

in the Constitution’s text: the Supreme Court’s use of judicial review to invalidate national laws, the Senate’s filibuster, and the use of first-past-the-post House districts.

All these emerged after ratification. But all have also sunk roots deep into our political culture to the point that they are often mistaken for constitutional fixtures. The end result is a surfeit of counter-majoritarian bodies, and what Francis Fukuyama has called a “vetocracy.”

At first blush, Levitsky and Ziblatt’s historical and institutional explanations fit

awkwardly with each other. The historical story begins with Redemption and continues with the Second Reconstruction and the Obama presidency. The institutional story harks by and large back to 1787. But the threads aren’t hard to weave together.

After all, the United States has been a multiracial democracy only since the Voting Rights Act of 1965. And it has been during this recent period, Levitsky and Ziblatt rightly stress, that growing racial resentment has turned the American right into semi-loyal democrats.

Moreover, only in the late 20th and early 21st century have the anti-majoritarian biases of the Senate, the Electoral College, and first-past-the-post voting systems come to have a partisan accent. All favor lowpopulation, primarily rural areas. As the split between rural conservatives and urban liberals has widened, America’s old politi-

believe that racial resentment can carry the whole explanatory load that Levitsky and Ziblatt want to heft onto it. An obvious blank spot in their account is economic class. In the teeth of lively debate among scholars as to whether racial and cultural change or economic shifts better explain voters’ increasing indifference to democratic norms, Levitsky and Ziblatt appear to side almost completely with the first strain of explanation. Nearly absent from their narrative is the neoliberal turn in American public policy and the subsequent growth of financial and corporate power at the expense of labor, which began under Jimmy Carter and persisted under administrations of both parties.

By omitting that strand of recent history, Levitsky and Ziblatt need say nothing about the fealty of Democratic elites to regressive free-market nostrums. Perhaps there

ing prescriptions. It’s not that Levitsky and Ziblatt want for good ideas. To the contrary, they offer a surfeit of good-government proposals. Electoral reform, franchise expansion, filibuster abolition, and Supreme Court term limits are highlights: All are ideas that have been aired in liberal circles. But whatever their individual merits, all face practically insurmountable political odds right now.

Levitsky and Ziblatt’s agenda doesn’t include any strategy for loosening the hold of semi-loyal, and utterly disloyal, democrats over the Republican Party and its voters. Perhaps some of the reforms they envisage would have that effect in the long run. But if the minds of white Americans have been fired and glazed shut in a kiln of unrelenting cultural and racial resentment, it is difficult to see how institutional reform alone could be much help. In the end, Levitsky and Ziblatt cannot offer a comprehen-

AP PHOTOS

Republicans have almost universally minimized and excused the violence of the January 6th insurrection.

cal institutions have taken on new partisan implications. Only recently could Democrats consistently win the overall popular vote for the Senate, yet frequently lose control of the chamber to Republicans. Now it is commonplace for a party with fewer votes statewide (usually the Republicans) to win large and durable statehouse majorities.

All this seems true enough, but I’m skeptical it’s the whole story. For one thing, the story has an American accent—but democratic backsliding is a global phenomenon. For another thing, it’s hard to

is more than one way, though, of shucking off democratic norms. A shift from listening to the median-earning voter to hearing only the well-off might also result in their erosion. The net effect of these gaps in Tyranny of the Minority is to absolve political elites of responsibility for their abandonment of working-class voters and the opening they provided for figures like Trump. It also closes off reflection on economic policy as an instrument in the pro-democracy tool kit.

Indeed, perhaps the most disappointing element of Tyranny of the Minority is its clos-

sive remedy because their diagnosis of our democratic travails points to an intractable first cause, and nothing else. There may not be easy answers, but if we are to make a start on a more effective response to backsliding, we need a diagnosis that accounts for not just the cultural but also the economic sources of populist anger. n Aziz Huq teaches law at the University of Chicago. His most recent book, The Rule of Law: A Very Short Introduction, will be published in 2024.

DECEMBER 2023 THE AMERICAN PROSPECT 63

PARTINGSHOT

MY RUBE GOLDBERG MACHINE OF

PRIMARY DREAMS Getting the Democrats out of their dilemma

I’ve feared writing this column for months. I pushed aside those polls for too long. But something needs to be done. I’m scared for Joe Biden’s chances. Not like James Carville scared, but actually scared.

Unlike Dean Phillips, I have a plan. Something that will make Biden feel like it was his idea to step aside. Something that will definitely work, and prevent the return of tanning-bed Mussolini. Something simple. Here goes:

Step 1: Marianne Williamson knits a voodoo doll of a secret service agent. Just as she sticks it, Commander Biden bites yet another agent on the leg. Not wanting to give up on him like she did Major, FLOTUS leaves the White House to spend time training the dog in Delaware.

JANDOS ROTHSTEIN

Step 2: Alone on the campaign trail, Joe Biden falls down a YouTube rabbit hole of Cornel West videos. Cornel speaking on civil rights, Cornel marching, Cornel dancing. He makes some good points and has incredible hair. Joe misses Jill and the quiet of their old home.

Step 3: Kimberly Guilfoyle receives a Cameo request to berate Gavin Newsom the way she used to when they were a couple. The video gets back to the governor, and includes her telling him no grown man with the name Gavin will ever be president. He fumes.

Step 4: After an anonymous call warns of an impending coup, Vice President Kamala

Step 8: Back on St. Lucia, the hurricane has cleared but Pete Buttigieg posts a selfie with the CEO of Southwest Airlines, prompting an air traffic controller strike that Biden refuses to break. Flights are grounded.

Step 9: A photo of the president grabbing a Black man’s hair and huffing it like potpourri goes viral. Democratic consultants in Iowa, who need a primary like Ticketmaster needs a service fee, see their opportunity.

Harris is called away to the Caribbean island of St. Lucia. It’s hurricane season, and one makes landfall just as she tries to leave, trapping the Veep on the island.

Step 5: While walking out of a New York City steakhouse, Cenk Uygur happens to bump into RFK Jr., literally. He apologizes and notices a tattered vaccine card on the ground belonging to the presidential hopeful. RFK Jr. has, it turns out, been vaccinated and boosted against COVID-19. Supporters flee.

Step 6: While campaigning in New Hampshire, Joe Biden runs into Cornel West, who recently started using a fragrant new conditioner. His hair smells so good. Biden can’t resist taking a whiff.

Step 7: Gavin Newsom seeks solace once again at The French Laundry. A tea-leaf reader, newly hired to spice up the restaurant, reads the governor his cup. His leaves have perfectly formed the shape of the state of Iowa. The restaurant gasps.

Step 10: J.B. Pritzker and Gretchen Whitmer hold a séance to summon the spirit that has been haunting Sen. Mitch McConnell to visit Joe Biden and persuade him to drop out. The spirit appears as Commander Biden. “Come back to Delaware with me and Jill! Give me the life I deserved! Eh … You’re old!” the spirit exclaims.

Step 11: Biden, just wanting to have a catch with his dog again, drops out the next morning. Newsom, Whitmer, and Pritzker jump in.

Harris has yet to rebook a flight.

You’re welcome, America.

—Francesca Fiorentini DECEMBER 2023 THE AMERICAN PROSPECT 64

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A vote for welcoming, well-rounded public schools

By Randi Weingarten, President AMERICAN FEDERATION OF TEACHERS

W

e are in a time of high anxiety, and perhaps no one feels that more acutely than children and families. Gun violence, social media, COVID-19, economic concerns, political and cultural divisiveness, and so much more, all fuel worries about our young people’s well-being. Over the last few years, extremists have sought to exploit parents’ anxiety to advance their political and ideological agendas. But voters in last week’s elections across the country rejected extremist politicians and school board candidates running on culture-war agendas grounded in divisiveness, fear and smears. Majorities of mainstream parents instead supported candidates who champion public schools that are safe and supportive for all students and that provide a robust curriculum and the resources needed to help young people recover and thrive.

The results underline what families have been telling us for the last two years: Families want their kids to get a well-rounded education, develop strong fundamental academic and life skills, and have pathways to career, college and beyond. They, like teachers, want a voice in their kids’ education, but that doesn’t mean banning books or censoring curriculum. So, when extremists peddled fear or tried to smear and divide, they lost voters’ support.

That’s the goal of the AFT’s Real Solutions for Kids and Communities campaign, which aims to tackle learning loss, loneliness and literacy challenges. Our campaign focuses on key strategies to create joyful and confident readers; care for young people’s mental health; expand community schools; engage students in their learning through hands-on experiences, including career and technical education; and secure investments public schools need—for improved teaching and learning conditions, adequate staffing, fair pay for teachers and school staff, and other fundamentals for a high-quality education in every school.

I’ve seen so many examples of this recently, including students’ deep engagement at two public schools in Yonkers. Students at Saunders Trades and Technical High School can get hands-on experience in fields as far-ranging as architecture, biochemistry, auto mechanics and cosmetology. At Yonkers’ Roosevelt High School, students can earn college credit while still in high school; a recent valedictorian graduated with 72 hours of college credit. I also visited Lincoln-West School of Science and Health in Cleveland, which is located in a hospital so students can get valuable immersive experiences leading to in-demand careers. In Beaverton, Ore., I saw a

fantastic literacy program and the many ways school staff are providing social and emotional supports for students. And, in one weekend alone, the AFT gave kids and families 120,000 free books, through the AFT Reading Opens the World program, at book fairs in Houston, Queens and Webster, N.Y. (The AFT and First Book have given away more than 9 million great, diverse books—and counting.)

Contrast any of these programs for young people with the extremists who work so hard to divide people and undermine public schools but offer nothing to help students develop the skills and knowledge they need to succeed in life.

Voters rejected extremist politicians and school board candidates running on culturewar agendas grounded in divisiveness and fear.

These election results should be enough to retire the myth that entities like Moms for Liberty, which the Southern Poverty Law Center includes on its list of extremist groups, represent the majority of this country’s parents. AFT members and our partners in groups like MomsRising, ParentsTogether, Red Wine & Blue, and the Campaign for Our Shared Future represent tens of millions of Americans. We want to strengthen, not diminish, public education.

Is there work we have to do? You bet. Do teachers and support staff want to do that work? Of course. We will continue to work with parents to help all our children get the well-rounded education they deserve in the safe, welcoming and supportive environments children need.

This did not surprise me. I am in schools across the country all the time, and if you follow me on social media, you know I am constantly talking with students, educators, parents and community members. They want strong, supported public schools. They don’t want students to be marginalized. They don’t want strangers to dictate what books other people’s children can and cannot read. They want young people to be able to discuss complex issues and bridge differences. They want students to have access to tools and curriculum that address the challenges of today and that prepare them for the opportunities of today and tomorrow.

Photo: Alex Palombo

When public education was on the ballot, public education won. An AFT analysis of approximately 250 races where the far right backed anti-public education candidates found AFT-supported candidates won over 80 percent of the time. Anti-public education candidates publicly supported by Moms for Liberty and the 1776 Project PAC lost 75 percent of the time.

Weingarten, right, with students at Lincoln-West School of Science and Health at MetroHealth hospital in Cleveland on Oct. 24.

Follow AFT President Randi Weingarten: twitter.com/RWeingarten

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