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February 2024 VOL 35 #1

Features 16 America Is Not a Democracy

16

The movement to save democracy from threats is too quick to overlook the problems that have been present since the founding. By David Dayen

24 Breaking the Ballot

Republican state lawmakers are enthusiastic practitioners of direct-democracy backsliding. Can voters hold them off?

By Gabrielle Gurley

61

30 Can Progressive New York Revive?

That depends on whether organizing and unity are a match for two incumbents in the pocket of business and one embittered ex-governor. By Robert Kuttner

30

38 Election Deniers in the C-Suites

Workers can win union elections, but companies pull out all the stops to prevent them from obtaining a first contract.

By Luke Goldstein

46 Moral Bankruptcy

The constitutional grant of a second chance for the destitute has become an enabler of reverse wealth redistribution. One wild case in Houston tells the story.

By Maureen Tkacik

Prospects 04 Why Were Inflation Hawks Wrong? By Ryan Cooper

Notebook 06 Pre-Preemption By Harold Meyerson 10 Assaults on the Right to Vote By Ramenda Cyrus 13 Water Democracies By Aina Marzia and Lajward Zahra

Culture 55 David Kirp on Rustin and Bayard Rustin: A Legacy of Protest and Politics 58 Paul Starr on Where Have All the Democrats Gone?: The Soul of the Party in the Age of Extremes 61 Adam M. Lowenstein on Taming the Octopus: The Long Battle for the Soul of the Corporation and One Day I’ll Work for Myself: The Dream and Delusion That Conquered America 64 Parting Shot: My Very Own American Dictatorship

By Francesca Fiorentini Cover art by Daniel Zender JUNE 2022 THE AMERICAN PROSPECT 1

On the Web

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

“I’m not willing to do too damn much right now to help a Democrat and to help Joe Biden’s approval rating.”—Rep. Troy Nehls (R-TX) Nehls’s quote reveals that the southern border is more a campaign issue than a policy one, as noted by David Dayen in his article on the immigration fight.

On one side of the yawning

gulf is the perennial fantasy that America is a nation fundamentally united and at peace with itself, “moderate,” “centrist,” where exceptions are epiphenomena entirely alien to settled American “norms.” On the other side of the gulf is, well, reality.—Rick Perlstein, writing in “The Infernal Triangle,” The Prospect’s new election newsletter

The Prospect published more than 900 articles in 2023. Read some of our most important and impactful reporting, according to TAP staff, and visit prospect.org/donate to support our critical journalism in this coming election year.

9.8 Percent Estimated electric vehicle share of all new cars sold in 2023

The EV share of new cars increased more than fivefold in three years, while the share of plug-in hybrids quadrupled. At that pace of acceleration, EVs will make up half of new car sales by 2026 or so.

—Ryan Cooper on the EV transition Long before the Democrats embraced allegedly “radical” social policies, they had effectively told millions of working-class Americans that their occupations were expendable and their livelihoods a matter of indifference.—Harold Meyerson, in his review of Rust Belt Union Blues, by Lainey Newman and Theda Skocpol 2 PROSPECT.ORG FEBRUARY 2024

If states like California are serious about stepping into the ring with the corporate heavyweights of the pharmaceutical industry, they are going to need one hell of a workout.—Audrey Stienon, writing about barriers to public pharmaceutical manufacturing In 2022, American restaurants and food service businesses threw out nearly 13 million tons of food, according to ReFED, a New York–based food waste research institute.

—Jelinda Montes on food waste mitigation app Too Good To Go

EXECUTIVE EDITOR David Dayen FOUNDING CO-EDITORS Robert Kuttner,

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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 FELLOW Luke Goldstein INTERNS Jelinda Montes,

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S T C E P S PRO RYAN COOPER

Why Were Inflation Hawks Wrong?

Back in early 2021, cent; raising unemployment up to that level as President Biden’s $1.9 trillion American Rescue Plan was being drawn up, economist and former Treasury Secretary Larry Summers was concerned. Writing in The Washington Post, he fretted that “there is a chance … [it] will set off inflationary pressures of a kind we have not seen in a generation, with consequences for the value of the dollar and financial stability.”

When inflation did indeed surge in later 2021, Summers claimed vindication, and proposed a solution: mass unemployment.

“We need five years of unemployment above 5 percent to contain inflation—in other words, we need two years of 7.5 percent unemployment or five years of 6 percent unemployment or one year of 10 percent unemployment,” he said in a speech in June 2022.

This recommendation was based on some classic economic concepts, as Summers explained to Jordan Weissman at Slate the following month. The first is the “non-accelerating inflation rate of unemployment,” or NAIRU. This is supposed to be the Goldilocks unemployment level at which as many people have jobs as possible without prices rising out of control. The second is the “sacrifice ratio,” which is the additional unemployment supposedly needed to bring inflation down.

Summers assumed that NAIRU was 5 per4 PROSPECT.ORG FEBRUARY 2024

would hold inflation in place, but getting it to actually come down would require more. He estimated that the sacrifice ratio was two percentage points of unemployment (sustained over a year) per point of inflation, and that the Federal Reserve would need to cut inflation by 2.5 points. That was how Summers got the figures quoted above. He figured we needed five point-years of unemployment (2.5 times 2). Starting from the 5 percent unemployment baseline, you could add five point-years with either 10 percent for one year, 7.5 percent over two years, or 6 percent over five years.

In an interview with Bloomberg News, Summers predicted there was only a 15 percent chance that “it’s all going to work out well.” Others were even more pessimistic.

Former Obama administration economic adviser Jason Furman estimated the sacrifice ratio was six—three times higher than Summers. If that figure were right, it would have meant we had to add 15 percentagepoint years of unemployment to halt inflation. (Even the peak during COVID was below 15 percent!) Arguments like these helped prompt the Federal Reserve to hike interest rates at an extreme pace, going from zero in early 2022 to 5.3 percent at time of writing.

Fast-forward to November 2023 (the latest period for which figures are available),

and the Fed’s preferred inflation measure is down to about 2.6 percent. Over that entire period, the unemployment rate never hit 4 percent. Whoops!

Now, I’ll admit that when I took the other side of the argument in February 2021, I certainly downplayed the political risk of inflation. I thought that the population would appreciate a quick return to full employment more than a period of modest price increases, but if President Biden’s approval rating on the economy is any indication, this was badly wrong.

But while Summers and Furman might have been right to predict inf lation was coming, they were also completely wrong about what to do about it. It’s a good time to assess what the problems might be with their economics.

The underlying theory behind NAIRU and the sacrifice ratio is based on something called the Phillips Curve. This is an observed relationship between unemployment and inflation; if unemployment is low, inflation tends to be higher. The theory then assumes that future inflation is based on current inflation, plus expectations of future inflation, plus any deviations from the NAIRU level of unemployment.

This model isn’t entirely implausible, and it worked well enough when applied to the inflation of the 1970s. But it simply did not work today. What gives?

The most convincing argument for what happened I’ve seen comes from Mike Konczal at the Roosevelt Institute. In a recent paper, he theorized that there are two basic possibilities for why inflation decreased: Either demand fell or supply increased. In the first situation, one would expect lower consumption as people bought less stuff, driving the prices down, while in the second one would expect more consumption as production increased, driving down prices and causing people to buy more stuff.

Importantly, lower consumption would be consistent with job loss; there’s no reason to keep workers around if nobody is buying.

Higher consumption would mean workers would stay and jobs would be added.

Inflation is calculated by the price of a representative basket of goods and services.

Konczal looked at 123 of them in the “core” basket (that is, excluding food and energy, which tend to gyrate a lot) and found that 73 percent of goods and 66 percent of services showed prices falling while supply increased.

In short, we’re mostly looking at the

Percent Change From Previous Year

second situation. Inflation was transitory, largely caused by supply chain snarls resulting from the pandemic and Russia’s invasion of Ukraine that have since been sorted out. That fits with the low unemployment of this period. Insofar as high demand was responsible for some inflation, the fact that it fell without any increase in unemployment suggests that we were high on the slope of the Phillips Curve (if there is such a thing)—meaning that prices would fall rapidly in response to only a small change in demand.

Now, orthodox economists have a response to this. According to their theory, a “costless disinflation” is possible if the Fed’s communication is sufficiently credible.

If everyone believes their announcement, then expected future inflation will fall to the Fed’s desired rate, thus reducing the need for any unemployment above NAIRU. But this is a peculiar idea. Fed “credibility” cannot be directly measured (just like NAIRU, by the way). The argument that inflation fell, therefore the Fed’s credible responses must be credited, borders on circular reasoning.

Even if we grant the idea for the sake of argument, the Fed’s actions do not have to be “credible” but merely believed. If every American accepted as a matter of faith that if Jerome Powell were to strip to the waist,

that produced the top-heavy, financialized economy of the 2000s and 2010s.

Deregulation and the insufficient stimulus created a hugely unequal economy where the benefits of economic growth largely flowed to the top 1 percent. But because the broad mass of consumers did not have much disposable income, the same 1 percent found nowhere to invest their bloated incomes.

Investment flowed to ludicrous Silicon ValAside from the supposed power of economic ley boondoggles like Uber, DoorDash, or spells and incantations, there are more WeWork, which attempted to capture marpractical lessons here. Why were supply ket share by selling their services far below chains so tangled by the pandemic and war? cost, if not outright frauds like Theranos.

First, there was a lost decade of chronic high One of the great, albeit painful, virtues of unemployment and underinvestment after the massive pandemic rescue packages was the Great Recession that left the economy that they broke through much of that ecobrittle and weak. Second was a much longer nomic crust. Americans paid quite literally trend of monopolization, deregulation, and for these decades of economic mismanageWall Street–orchestrated transition to “just ment, but at this point we can say it was a in time” supply chain management to juice price worth paying. A persistent increase in profit margins rather than leaving any slack demand prompted companies to invest in in the system in case of disaster. badly needed new capacity, and they are now Both these developments made America delivering more output at stable prices. If and the world vulnerable to supply shocks. Summers had his way, inflation would have On the margin, pandemic disruptions and been tamed by impoverishing the citizenry surges in certain types of spending trans- so they could not afford to bid up prices, thus lated into higher prices rather than more locking in a weak supply side once again.

Meanwhile, according to a study by David production. A decade of underinvestment meant that infrastructure like roads and Autor, Arin Dube, and Annie McGrew, nearports had no space for extra production, ly 40 percent of the post-1980 increase in while slack-free supply chains meant that income inequality has been reversed, thanks to the red-hot labor market of the Inflation has dropped without a rise in unemployment last few years. It is possible once 7 again to invest in companies with 6 a good old “sell above cost” business 5 4 model. Thanks also to the Inflation 3 Reduction Act’s climate subsidies, 2 investment in green energy and 1 manufacturing is surging. The Biden 0 administration has also taken some -1 belated action to roll back economic -2 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 consolidation and prevent corporate PERSONAL CONSUMPTION EXPENDITURES, CHAIN-TYPE PRICE INDEX. SOURCE: FRED, U.S. BUREAU OF ECONOMIC ANALYSIS price-gouging.

With inflation subsiding, it’s now anoint himself with sacred oils, and sacri- new buyers were forced to bid for scarce an open question whether we will continue fice a goat to Yaldabaoth, inflation would deliveries rather than bringing new capac- on the trail blazed by Biden’s half-improvised economic program, or gradually fall back into come down as a result, it would have pre- ity online. cisely the same effect on expectations as Larry Summers was personally involved the same economic sandpit of the 2010s. The raising interest rates. in both these developments. As director of answer will depend in part on how seriously This matters because the Fed’s actu- the National Economic Council in the early the complaints of Summers and company are al inflation-fighting tool has paradoxical Obama administration, he buffaloed fellow taken. The most recent Fed minutes show a effects on inflation, particularly over the adviser Christy Romer into lowballing her broad consensus around keeping rates high medium term. On the one hand, it does estimate of the needed amount of stimulus for a long time. But as noted above, the housmake investment more expensive, hence based on his gut-check guess of what could ing market has slowed markedly, and there is cutting spending and demand, most nota- be got through Congress. Before that, as still a drastic housing shortage in many cities. bly in the housing sector. But raising rates Bill Clinton’s Treasury secretary, he was a So long as inflation remains quiescent, rates also directly causes the price of a new home fervent advocate of the kind of deregulation should be cut, and soon. n mortgage to increase, and it reduces the supply of future housing—in 2022, new single-family home starts plummeted by about 20 percent—eventually putting upward pressure on rents.

If we accept that the Fed has a role to play in signaling its commitment to price stability, it would be better to have some more direct tools.

FEBRUARY 2024 THE AMERICAN PROSPECT 5

NOTEBOOK

Pre-Preemption Conservative states have now taken to blocking liberal cities from even thinking about legislating on behalf of their residents.

By Harold Meyerson There’s nothing historically novel about America’s politics dividing along urban vs. rural or cosmopolitan vs. parochial lines.

One has to go back a full century, however, to find a time when the nation’s political fault lines ran so clearly along the city/country divide as they do today.

In the 1920s, cities were too Catholic and Jewish and freethinking for the countryside’s Protestant traditionalists, and new urban-based media (radio, movies) brought the taint of the new to rural communities whose susceptible young people were lighting out for the cities. Today, culture wars and economic conflicts also play out largely along urban/rural lines. Of the top 35 cities in America by population, only four have 6 PROSPECT.ORG FEBRUARY 2024

Republican mayors, and one of those, Eric Johnson of Dallas, Texas, was elected as a Democrat and switched parties in 2023.

Since Republican legislatures and governors can’t stop city residents from electing Democrats, however, they’ve devised a whopper of a Plan B: negating majority

THREATS TO

DEMOCRACY rule in those areas by denying those cities the right to enact any laws or promote any policies that run counter to the preferences of the governor and the legislature.

This trend began in 2016, when North

Carolina nullified a Charlotte ordinance that penalized violations of LGBTQ rights.

That same year, the majority-Black and majority-Democratic city of Birmingham, Alabama, passed a municipal minimumwage statute, whereupon the Republican state legislature outlawed municipal minimum-wage laws. (Alabama is one of the five states, all in the South, that have never enacted a state minimum-wage law—still reeling, apparently, from the loss of all that unpaid labor in 1865.)

More recently, majority-Black and majority-Democratic Jackson, Mississippi, has had a crime problem, so the Republican Mississippi state legislature responded by enacting a law that stripped criminal trials from the jurisdiction of Jackson courts and established a new group of courts, with

judges to be appointed by the state’s Republican chief justice. When Democratic Nashville established a civilian review board for its police, the Republican legislature and governor passed a law that banned civilian review boards. The underlying racism in such preemptions is never very far from the surface.

The Republican neo-Dixiecrats who dominate Southern legislatures can no longer keep Blacks from voting, but they’ve found a way to keep Blacks, in the cities where they constitute clear majorities, from governing.

Of all the Republicans who have taken arms against majority rule, Texans have taken a commanding lead. In the past, the state had enacted laws to stop municipalities from creating local ordinances that protect tenants facing eviction and to stop cities and counties from regulating fracking within their boundaries. Last summer, however, the Texas legislature passed and Gov. Greg Abbott signed into law HB 2127, which its sponsors gloatingly called the “Death Star” bill for local governments. The law prohibits municipalities from enacting local ordinances that go beyond any state laws that deal with agriculture, business and commerce, finance, insurance, labor, natural resources, occupations, and property.

The sweeping law negated local statutes like those that Dallas and Austin had enacted to require employers to give water breaks to construction workers in torrid summers.

It further forbade cities from enacting any such ordinances that climate change or conscience might require. It’s so broad that it’s not clear just what kind and how many local laws and regulations it would negate.

According to recently departed Houston Mayor Sylvester Turner, it could well strike down regulations on noise (outdoor music festivals, beware), boarding houses, and tow-truck companies. It’s not really about any particular policy; in the words of Katie Belanger, lead consultant for the Local Solutions Support Center, a group founded in 2017 to help municipalities battle against what it terms abusive preemption, it’s “issue-agnostic.” What the law is really about is simply stopping cities and counties from legislating, unless their legislation mirrors the perspectives of the Republican-run state.

This isn’t reactive preemption; it’s anticipatory preemption—pre-preemption, if you will.

In blue states, the diverse, urban character of the Democratic Party generally presents no preemption problem. More than a decade ago, responding to the Fight for $15 campaign to raise minimum wages, Seattle and San Francisco raised their minimum wages higher than those of Washington state and California, respectively. Washington and California’s response was to follow their lead; both now have minimum wages at or above $16.

But cities have turned blue in red states, too, and as the gap between the two parties has widened to Grand Canyon–like dimensions, those red states have responded in the past two decades with a torrent of preemption. Initially, this served as a favor to big business. An early effort involved banning local taxes on sugared drinks or tobacco, for which those industries worked through the American Legislative Exchange Council (ALEC), the right-wing group that writes and lobbies for model anti-regulation legislation at the state level. The National Restaurant Association won preemption laws blocking localities from raising wages and establishing paid sick days or regular work-scheduling mandates.

“It was business, corporate special interests, that began this wave of preemption legislation,” says Belanger. “It’s only recently that preemption has become a tool for social conservatism, too.”

According to the Local Solutions Support Center, 700 preemption bills were introduced in state legislatures in 2023, virtually all of them by Republicans. By October, more than 90 had become law.

That total doesn’t include acts of preemption that required no new law, such as Florida Gov. Ron DeSantis’s removals from office of the elected district attorney of Hillsborough County (Tampa) for his refusal to enforce the state’s new abortion law, and of the elected school board members of Broward County (Fort Lauderdale) for resisting the state’s new party-line (Republican) school curricula.

DeSantis is plainly not willing to cede the smash-the-cities crown to Abbott and the Texans. This summer, on a party-line vote,

the Florida legislature passed and DeSantis signed into law a bill that its sponsors were calling “the preemption to end all government preemptions,” Texans having already appropriated the “Death Star” terminology.

The new law permits businesses (only businesses, not employees or individuals who’ve not established themselves as businesses) to sue local governments for ordinances or regulations they deem to be “arbitrary or unreasonable.” After receiving notice, the local government must immediately suspend that ordinance or regulation, simply by virtue of the suit having been filed.

It’s then up to the court to decide whether the suit has merit, but even if the court rules against the plaintiff, the government must nonetheless keep its law or regulation suspended for an additional 45 days. Therefore, the law acts as a powerful tool to get laws businesses don’t like taken down for long periods of time, even if the complaints against them are totally frivolous.

And that’s not all: If the court rules for the plaintiff, the law or regulation is scrapped, and the city (or county) must pay the business’s attorney fees up to $50,000.

If the municipality wins, it must absorb its own attorney fees. Both the disparity in who bears court costs and the weaponizing of preemption on behalf of business interests are likely to give pause to Florida city leaders from enacting any statute that might offend a corporation or local business.

Who could be behind such a breathtaking piece of legal chutzpah? Virtually the entirety of Florida’s small-business establishment, including the state’s Chamber of Commerce, the Florida Restaurant and Lodging Association, the Florida Alliance for Vacation Rentals, and Associated Industries of Florida, as well as big-business groups like the Koch brothers’ Americans for Prosperity. So for all its innovation, the law is well within the classic mode of preemption legislation, originating with businesses seeking to free themselves from regulation.

The law went into effect on October 1; as of this writing, no suit using its tools has yet been filed.

Though no one has been hungrier for media visibility over the past year than DeSantis, he signed the new Florida law behind closed doors, and has made no effort to publicize it.

FEBRUARY 2024 THE AMERICAN PROSPECT 7

NOTEBOOK This uncharacteristic reticence exposes the Achilles’ heel of much preemption legislation: It’s not only unpopular with targeted cities and counties, but also with the public.

“Republicans don’t run on this kind of legislation; it’s just a way for them to get more campaign donations,” says Francesca Menes, who has headed a “table” where a wide range of Florida groups adversely affected by the preemption wave have been meeting. “This isn’t something they want the public to know.”

Menes has been reaching out to a range of groups—unions, immigrant rights organizations, community service providers, Planned Parenthood, LGBTQ advocates, environmental activists—with the message that preemption threatens all of them. “We have over 40 organizations at the table as of now,” she says.

Texas Republicans aren’t shouting from the housetops about their Death Star bill, either. “The law has very little grassroots support even in red counties,” says Luis Figueroa, who’s working on mobilizing a cross section of Texas constituencies against the law.

Figueroa points out that, as metro Texas continues to boom, the law could restrict newly incorporated suburban cities from enacting basic regulations. The coalition assembling in Texas includes many of the state’s leading cities, unions, and climate and reproductive rights groups, as you might expect. But it also includes the Catholic Conference of Bishops, who are concerned about suppressing both pornography and predatory lending; the latter is the subject of restrictions in 43 different Texas cities. As in Florida, “issue-agnostic” preemption engenders cross-issue opposition.

Opponents of the Death Star—call them the Rebel Alliance—have already notched an early and potentially decisive victory. A Texas court struck down the Death Star law on August 30, though it’s still on the books for now because state Attorney General Ken Paxton filed an appeal. The lawsuit, brought by the city of Houston, made clear that the Death Star law ran afoul of a 1912 amendment to the Texas constitution that required the state to show where an actual conflict existed between state law and a municipal ordinance. As the Death Star cited no such conflicts but rather warned cities against passing an ordinance that might be in conflict, the court upheld the lawsuit.

That 1912 amendment was just one of 8 PROSPECT.ORG FEBRUARY 2024

Of all the Republicans who have taken arms against majority rule, Texans have taken a commanding lead. a large number of “home rule” provisions inserted into state constitutions during the Progressive Era, says Nestor Davidson, a law professor at Fordham University and a legal adviser to municipalities confronting state preemption. Home rule guarantees have waxed and waned over the course of American history. The Tenth Amendment to the Constitution reserves to states the powers not claimed by the federal government. No comparably clear delegation of powers between states and localities exists, however, and the U.S. Constitution makes no mention of local governments at all.

New England town meetings preceded the formation of New England states, Davidson points out, “but in the early 19th century, the Supreme Court ruled that cities and counties were creatures of the state,” which could create or disestablish them as they wished. Throughout most of the 19th century, localities existed under the “Dillon Rule” (named after a Columbia University law professor), which held, Davidson says, that “local authority should be narrow, and if ambiguous, favor the state over the municipality.” Regulations could be enacted at the local level only if the state legislature had empowered such actions.

What eroded the Dillon Rule was the rise of cities. Bowing to pressure from the burgeoning metropolis of St. Louis, Missouri amended its constitution in 1875 to give more authority to local governments, a move that many states followed as their cities grew. Another wave of urban empowerment altered state constitutions in the 1950s and ’60s, when “at least 42 cities,” Belanger says, bolstered their guarantees of home rule. During this time, however, Davidson notes, many constitutions also made clear that cities had no recourse if legislatures specifically overrode their ordinances.

That is decidedly not what the Death Star law did. However, the law, still on the books, is wending its way up to the Texas Supreme Court, which is a Republican Party institu-

tion, last seen effectively nullifying exceptions in the state’s anti-abortion law by inserting itself into the medical decisions of one woman.

The fate of Florida’s preemption-amok law is similarly unclear. “Normally, when somebody challenges a law, the court is deferential to the political process, to the law that that process created,” says Davidson. “So, it requires a high standard to get an injunction to stop a law.” Florida’s law requires no standard whatever and could be construed, Davidson adds, as turning courts into legislation-revocation machines, which could challenge the separation of powers doctrine that is enshrined in the federal and every state’s constitution.

Happily, Davidson points out, state constitutions are a lot easier to amend than the federal Constitution. In many states, the public can institute those amendments through ballot measures.

Unhappily, no such rebalancing is likely to come in time to arrest the current burst of preemption that red states are inflicting on their cities. In Florida, Menes says, Republicans already have circulated a draft of a bill for this winter’s upcoming session that preempts most municipal labor ordinances, forbidding cities from mandating minimum wages for their own contract workers, from requiring heat breaks for construction workers, and perhaps from going after wage theft. There’s even been some discussion of a bill that would require cities to scrap ordinances that keep children from being out late without adult accompaniment in public, for fear that would impinge on employers’ right to use child labor. “In Florida,” says Menes, “things can always get worse.”

There’s a huge asymmetry between the two parties’ approaches to the regions where their rival party dominates. Through both the Inflation Reduction Act and the Infrastructure Investment and Jobs Act, President Biden has jump-started investment in rural America, places that private capital had largely abandoned in recent decades.

The Democrats see this public investment as a strategy to co-opt rather than preempt, to gain a political foothold on opposition turf.

Republicans, by contrast, view cities as the Visigoths viewed Rome. Unable to sufficiently disenfranchise urban voters, they are moving to disempower those voters’ governments. In the battle now before us to preserve and advance democracy, the fight for cities looms large. n

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NOTEBOOK

Assaults on the Right to Vote

The latest challenge to the Voting Rights Act of 1965 concerns who is allowed to sue to enforce it.

By Ramenda Cyrus For the first 48 years of its existence, the Voting Rights Act of 1965 was bruised but not battered. While near-constant lawsuits chipped away at it, the VRA maintained its core structure, protecting Black voters and other groups from discrimination at the ballot box. But in 2013, U.S. Chief Justice John Roberts issued a 5-4 opinion in Shelby County v. Holder, which gutted the legislation’s core mechanism, known as preclearance. That mechanism forced states with a history of discrimination to get approval from the Justice Department for any legislation affecting voter participation or access.

The Shelby County decision ended preclearance in a roundabout way, by declaring Section 4(b) of the VRA unconstitutional.

Under Section 4(b), a coverage formula was used to determine which states and localities were subject to preclearance. “[T]he conditions that originally justified these measures no longer characterize voting in the covered jurisdictions,” Roberts wrote in his opinion. Congress could modernize the coverage formula, the Court said, and preclearance itself, which was contained under Section 5, was left alone. But while there was once a time when the VRA was uncontroversial—as recently as 2006, extensions of expiring provisions of the law passed unanimously in the Senate and with 390 votes in the House—changes to the preclearance formula never passed Congress. As the Shelby County decision went into effect, dozens of discriminatory voting laws cropped up, particularly in the South, where most of the states subject to preclearance were located.

In his opinion, Roberts acknowledged that “voting discrimination still exists; no one doubts that.” Striking down the coverage formula, he wrote, did not constitute the end of the VRA. “Our decision in no way affects the permanent, nation10 PROSPECT.ORG FEBRUARY 2024

wide ban on racial discrimination in voting found in [Section] 2.”

A decade later, that “permanent ban” is itself under attack. Arkansas State Conf.

NAACP v. Arkansas Bd. of Apportionment was brought by the NAACP Legal Defense Fund in order to challenge Arkansas’s redistricting plans, which concentrated Black voters into districts that diluted their voting power, and therefore violated Section 2 of the VRA. This time, Arkansas Attorney General Tim Griffin argued that there is no explicit language in Section 2 allowing a private right of action in the VRA, which would bar citizens, political parties, or groups like the NAACP from suing under the law, and leave the Justice Department as the only entity able to bring lawsuits for VRA violations, and render the case a moot point. Of course, Shelby County had already robbed the DOJ of its most potent tool, the preclearance function.

In February 2022, a Donald Trump– appointed U.S. district court judge agreed with Griffin, and in November 2023, a three-judge panel for the Eighth Circuit Court of Appeals confirmed that there is no private right of action. Fourteen states, including Texas, Utah, and Florida, filed a

THREATS TO

DEMOCRACY joint amicus (“friend of the court”) brief, indicating alignment with the argument.

In December, the American Civil Liberties Union petitioned for a rehearing; a decision is pending. For the seven states in the Eighth Circuit’s jurisdiction, Section 2 now teeters in limbo, and the fate of the VRA with it.

Were the power of citizens to enforce Section 2 permanently struck down by the Supreme Court in its next term, the VRA would

be left with few avenues for combating voter discrimination. It would continue a decade of work by conservative lawyers and judges to weaken the VRA to a point of irrelevance.

Sophia Lin Lakin, director of the ACLU Voting Rights Project, told the Prospect that the Eighth Circuit “is the only court that has held this ever, in 60 years, despite hundreds and hundreds of cases … Congress certainly contemplated, when they created the statute, that private individuals would be enforcing it.” The ability of citizens to sue under Section 2 has been settled precedent since 1980, when in City of Mobile, Alabama v. Bolden the Supreme Court “assum[ed], for the present purposes, that there exists a private right of action to enforce this statutory provision.”

Voting rights advocates feel confident that the right of private action will remain intact, either upon a full-panel rehearing or a subsequent appeal. “We expect that the full Eighth Circuit will correct course and align with other courts that recognize voters’ ability to use arguably the most important civil rights law in American history to vindicate their fundamental right to vote free of discrimination,” Adam Lioz, senior policy counsel at the Legal Defense Fund (LDF), told the Prospect in an email.

Yet the fact that a private right of action for the VRA is being challenged at all is an indicator of a dire moment for voting rights.

There really is no more room for the VRA to lose enforcement capabilities. Since Shelby County, historically discriminatory states have approved stringent voter ID laws, restrictive polling hours and ballot rules, as well as a host of other forms of voter discrimination. Without preclearance, voting rights advocates have had to diligently file suits challenging these strategies to deny voters the ability to cast a ballot; without a private right of action, they would be mostly unable to do even that. (Sources told the Prospect that voters could use Section 1983 of the U.S. Code to sue under the deprivation of their civil rights, a different mechanism than the VRA.) Members of Congress have introduced multiple bills that would undo the harm of Shelby County and other legal rulings, and resolidify voting rights as a nonnegotiable element of American democracy. Lakin also notes that the ACLU is being diligent against the decision spreading into other circuits, although this has already begun. But if Congress couldn’t react to Shelby County a decade ago, it’s unlikely now—especially with a Republican House—to get much done in the

The Voting Rights Act has been under near-constant legal attacks since Lyndon Johnson signed it in 1965.

AP PHOTO

near future. Black people and voter advocates will have to fight for their rights in court.

Voting rights are a bulwark of American democracy. The VRA effectively executed the 14th and 15th Amendments passed during Reconstruction nearly 100 years earlier, which provided equal protection of the law and guaranteed the right to vote no matter your race or formerly enslaved status, respectively.

The 14th Amendment granted Congress the power to implement it, but it took a century of Jim Crow before Congress felt enough pressure from the civil rights movement to pass the VRA. Without viable legislation actively protecting voting rights, the Reconstruction amendments will have less daily impact.

In the Shelby County decision, Roberts highlighted the outdated coverage formula that dictated under Section 4(b) which states would be subject to preclearance. For example, Roberts noted that the 4(b) formula cited states that used forbidden items like literacy tests, which he said have been illegal for “over 40 years.” But he failed to acknowledge continued innovations in voting rights suppression, such as gerrymandering, that are not explicitly covered in 4(b) but share the same goal of discrimination.

Since Shelby County, voter suppression laws have spread throughout the country.

As the Brennan Center for Justice noted in 2023, over a ten-year period, 29 states have passed 94 restrictive voting laws, which have “target[ed] every aspect of voting, including making voter registration more difficult, curtailing early voting opportunities, closing polling places, and limiting voter assistance.” The gap in turnout rates has predictably grown between Black people and white people as a result, “including in jurisdictions previously covered by preclearance.”

As Leslie Proll, senior director of the Voting Rights Program at the Leadership Conference on Civil and Human Rights, noted, the tactics of voter suppression have changed since Shelby County. “It’s not to say they’re still not doing voter ID restrictions,” she told the Prospect, pointing to a 2022 Ohio voter ID law as one of the most restrictive. “That’s still happening, but they’ve also changed tactics.” Mail-in voting, for example, has become a target.

Voting rights advocates have changed tactics as well, challenging cases that they would have previously left to the Justice Department under preclearance. But conservative courts struck back at those efforts.

In Brnovich v. Democratic National Committee (2021), the Supreme Court allowed Arizona voting laws to stand on the basis that they were not enacted with a racially discriminatory purpose, the first time Section 2 had been applied to voting rules specifically. The ruling chilled efforts by advocates to take on voting administration rules like absentee ballots or drop boxes.

It is true that, since the VRA’s passage, voter participation has grown and been extended to other groups. Indeed, voter registration among Black people outnumbers that of white people in some areas, and other majority-minority groups have improved their voter registration numbers, as well.

But narrowly interpreting Section 2 as solely available for the Justice Department to enforce would severely weaken the act even further. For one, as Lakin explained, there is the issue of bandwidth. “We’re just talking about leaving so many voters out in the cold; the DOJ can only cover so much territory.”

As the ACLU noted, of the 400-plus cases brought forward on Section 2 violations to the federal court, the “vast majority have been brought by private plaintiffs.” That includes 12 cases put before the Supreme Court.

In addition to limited bandwidth, not FEBRUARY 2024 THE AMERICAN PROSPECT 11

NOTEBOOK Allen v. Milligan, which upheld that racial gerrymanders are illegal, was brought by private plaintiffs.

Conservative groups have seized every opportunity to challenge and hack away at the VRA. The Arkansas decision is almost sure to see the Supreme Court, and the fate of the VRA gets less certain the more it is challenged.

But in some recent cases, the Supreme Court has actually upheld the validity of the VRA. Last year’s Allen v. Milligan was brought by private plaintiffs, one of which was NAACP LDF. In the case, Alabama’s redistricting map was challenged as a racial gerrymander that weakened Black voter representation under Section 2, an argument that was reaffirmed by the Supreme Court. As Lioz told the Prospect, the case “demonstrates that the VRA remains a vital tool for fighting discrimination.”

This case has already forced Alabama and Georgia to redraw their congressional maps, and could lead to changes in Louisiana as well. In Ardoin v. Robinson (2023), the court ruled that the Louisiana congressional map was in violation of Section 2, following the Allen v. Milligan precedent, and rejecting the argument against a private right of action.

The Arkansas case was about the exact same dynamic of racial gerrymandering, which under Allen v. Milligan should get a Supreme Court majority to strike down Arkansas’s maps. That’s perhaps why the state resorted to challenging the Section 2 private right of action. There’s no question that, if the Supreme Court upheld the Arkansas ruling, other states would go back and try to invalidate the Allen v. Milligan precedent, on the grounds that the plaintiffs had no right to bring the cases. Indeed, after the Eighth Circuit ruling, the Louisiana attorney general asked the Fifth Circuit to rehear its case.

As The Guardian noted, more challenges to voting rights are being reviewed 12 PROSPECT.ORG FEBRUARY 2024

by the courts. In Georgia, Republicans are attempting to structure elections for state school boards or county commissions, “bodies of government where civil rights litigators have long turned to the law to combat voting discrimination,” in a way that voting rights groups have alleged dilutes Black voting power in violation of Section 2. And in Texas, courts have expressed willingness to restrict the ability to consider multiracial groups as one entity for the purpose of drawing legislative districts.

Voting rights advocates have two main paths of recourse at this moment. But both of them rely on a deadlocked Congress that has stood in the way of progress.

The Supreme Court explicitly wrote in Shelby County that the formula for preclearance coverage could be modernized and updated. The John Lewis Voting Rights Advancement Act does just that, creating a new coverage formula and strengthening other elements of voting laws. It was reintroduced in the House in September 2023.

Another strong piece of legislation is the Freedom to Vote Act, introduced in the last Congress as H.R. 1, where it failed thanks to the Senate filibuster. Had it been passed, it would have protected elections on local and federal levels, by expanding voting methods, modernizing voter registration, and more.

The act was reintroduced in July 2023.

As Proll noted, these pieces of legislation would, if both passed, work simultaneously to undo the courts’ crippling of the VRA. “It would supplant those provisions in a way that provides immediate access in a lot of different places where it has recently been restricted,” Proll told the Prospect. Congress could also amend the VRA to explicitly grant a private right of action under Section 2.

But any such passage is likely to be on hold unless Democrats regain a majority in both houses of Congress, and until the Senate rules allow for a majority vote to pass legislation.

In addition, the NAACP LDF urges states to write and pass their own versions of the Voting Rights Act. State VRAs have the ability to restore key elements such as preclearance through state attorneys general, protections against voter intimidation, language access for ballots, and more. The LDF noted that five states have successfully passed state VRAs: California, Washington, Oregon, Virginia, and New York. Virginia was once one of the states with a history of voting discrimination that was subject to preclearance.

The urgency to make some progress in the wake of unprecedented challenges to the Voting Rights Act is palpable. “This is something that Congress needs to make as a top priority at the earliest possible moment that it can,” Proll said. n

BRYAN OLIN DOZIER / NURPHOTO / AP PHOTO

every administration is voting rights– friendly. “It would be remiss not to say that for some administrations, this isn’t going to be a priority. Enforcement is not going to be a priority,” Lakin said.

Water Democracies

Four-hundred-year-old acequia systems of the Southwest are changing how communities cope with water scarcity.

An acequia uses gravity chutes to transport water for irrigation.

By Aina Marzia and Lajward Zahra “They’re a really beautiful thing to look at.

From a vantage point on a mountain looking down, it looks like a huge human circulatory system, the veins in a leaf or the lines on your hand,” says Paula Garcia.

The executive director of the New Mexico Acequia Association is describing over 800 acequias that run through the state. These ancient water systems could serve as a lowtech solution to one of the Western United States’ most intractable problems in the age of climate change: how to ensure water in an increasingly dry region is distributed equitably and efficiently.

The word acequia is Spanish, but comes from al-saqiyah in Arabic, which can refer to both a water-carrying device or someone who bears water. As they exist in New Mexico, acequias are irrigation systems that use gravity chutes to transport water. While some stretches of these networks use metal pipes, most are just open ditches. After diverting water from a river, the network “takes water into what is called an acequia madre, the mother ditch, that then separates into brazos, branches, that take water to the fields,” Garcia explains.

Acequias lack many of the hallmarks of modern water sourcing, such as man-made dams to control the flow of rivers or pumps to pull groundwater to the surface. That makes them feel like a relic of a pueblo past; and indeed, an acequia today looks very similar to what it would have looked like 100, 200, 300, or even 400 years ago.

Unlike in past centuries, however, the Southwest today is experiencing an unprecedented dry period. The past two decades have seen some of the most severe water scarcity on record, according to the U.S. Geological Survey. Not only has there been less precipitation, but because of higher temperatures, evaporative demand has increased by 16 percent since 1980—meaning that what water does fall does not last long in the region’s streams and rivers. The current megadrought in the Southwest shows no signs of ending.

Acequia-inspired water partitioning practices may prove a better method to manage such conditions. “One of the main lessons from acequias is how to deal with a finite resource [especially] regarding climate change which just exacerbates the scarcity,” says Garcia. The question now is how to convince the people of the modern Southwest—from the farmers FEBRUARY 2024 THE AMERICAN PROSPECT 13

NOTEBOOK

Annual precipitation has decreased in New Mexico since the 1990s, leading to more groundwater pumping amid a drought. of California’s Central Valley to the growing retiree community to their representatives in state capitals and D.C.—that a centuries-old water management system is actually their best bet to survive the future.

Helping to Recharge While acequias can help cope with water scarcity, their physical infrastructure might offer a future for recharging groundwater, which is increasingly being depleted.

Since 2004, three-fourths of the losses in the Colorado River Basin have been groundwater. Given that groundwater made up 26 percent of freshwater usage in the United States as of 2015, using it at the same rate could significantly worsen water scarcity.

But reducing groundwater use, particularly in the Southwest, could prove to be difficult, as regions with less precipitation depend on it more for irrigation.

Acequias do not rely on groundwater for 14 PROSPECT.ORG FEBRUARY 2024

irrigation, which relieves pressure on the underground reservoirs known as aquifers. These aquifers recharge slowly, so if fewer farmers and residents are pumping from them, that can slow the rates at which groundwater dries up.

This independence from relying on groundwater also allows acequias to be adaptable to wet and dry periods.

“Annual precipitation in the ’70s, ’80s, and into the ’90s in New Mexico was higher than it’s been before and after. The agricultural systems that can pump groundwater are set up for that precipitation regime, and they’re pumping groundwater in excess of precipitation now that we are in a drought,” says Sam Fernald, director of the New Mexico Water Resources Research Institute and professor of watershed management at New Mexico State University.

Acequias have been adapting to wet and dry periods in this region for 400 years, mak-

ing them more equipped to handle water scarcity. “If there’s less water available in a given year, the irrigation footprint goes down. If you get a lot of water in a wet year, the irrigated footprint expands and the irrigation covers more of the landscape,” explains Fernald.

Apart from being adaptable and not relying on groundwater, Fernald says acequias can even help to recharge groundwater and increase the amount of water in the watershed, because they “rely on gravity f low that’s based on surface water, and it’s in balance with that renewable supply.”

They might even be able to mitigate the effects of climate change that is disrupting the irrigation schedule. Increased temperatures have led snow to melt from the mountaintops earlier in the spring and flow downstream. When that happens, the water can be unusable, because ditches haven’t been opened to irrigate fields where no crops have yet been planted.

In practice, shifting from large industrialized water systems to community-oriented ditches won’t be easy.

Traditional acequias, however, have unlined ditches, which allow runoff water to seep back into the ground and eventually back into rivers and streams, replenishing groundwater in aquifers. “This is a way to actually ameliorate the impacts of climate change [and] keep water higher in the watershed for longer,” says Fernald.

Modern water infrastructure practices, such as lining ditches with polymer or storing water in dams, actually decrease the replenishment rate, since unused water is unable to seep back into the ground and eventually back into rivers.

No Juniors or Seniors Right now, the laws that govern water usage throughout much of the Southwest—Arizona, Colorado, Nevada, New Mexico, Texas, and Utah—are based on a doctrine of priority, or “prior appropriation.” What this means, says Adrian Oglesby, an expert in water law and policy and professor at the University of New Mexico, is that whoever purchased water rights earlier—“senior” water users—will receive, in full, their contracted amount of water, even if doing so means there will be no water left to meet the contracted amount of water of “junior” users who purchased water rights later. Think of it as a “first come, first served” framework. When there is not enough water to go around, junior water users might have their water shut off to meet the contracted needs of the senior water users.

The acequia, on the other hand, employs what Garcia calls repartimiento, or shortage sharing, a system in which “a person’s water right is dependent on how much actual water there is.” There is no concept of a senior or junior water user, and as a result, water rights on an acequia are not quantified in acre-feet, gallons, or any other measurement of volume. Instead, a person’s water rights are defined in time. For example, as part of an acequia, I—along with every other member—would get “four”

water rights. That means that when there is plenty of water, I get enough for four days of irrigation per week. But when there is a drought, that might mean just four hours.

This ensures that everyone still receives a percentage of their water rights, instead of some people being shut off to accommodate the contracted amount of water someone else might be owed. It prioritizes the greatest number of people receiving the water that is available, rather than the person with the oldest contract getting their full allotment before everyone else.

Figuring out who wins and who loses has been one of the key issues at hand when it comes to one of the biggest water crises in the U.S. over the past two years: divvying up the Colorado River, which provides water to parts of California, Nevada, Arizona, Colorado, New Mexico, Utah, and Wyoming, and the country of Mexico. In 2021, the federal government declared a shortage in the Colorado River, due to the ongoing regional drought and the fact that the “paper water” (the volume of water each party ostensibly owns) established in the 1922 Colorado River Compact no longer remotely reflects the true amount of “wet water” (the amount of water the river actually has).

The Biden administration warned the states that if they didn’t come up with a plan to cut water use by two to four million acrefeet per year, the federal government would have to step in. It took nearly a year, but in May 2023, the states finally reached a consensus, proposing that California, Arizona, and Nevada cut water use by three million acre-feet by 2026, among other fiscal details.

Oglesby draws parallels between the Colorado River pact and the acequia ideology: “The two primary practices of maintaining high levels of water user engagement and cooperation and the avoidance of priority enforcement through negotiated shortage sharing are already being adopted and practiced across the increasingly arid Southwest,” he said. “The recently negotiated settlement between California, Arizona, and Nevada is a high-level example of that.”

But rather than a high-stakes negotiation, acequias build that cooperation into their very process of distributing water.

A Cultural Shift Despite the wet winter of 2023 in California, and an El Niño forecast that should keep the state drought-free in 2024, nobody expects the Southwest’s water problems to be over.

And despite the Colorado River agreement, nobody expects that the fights over water in the region have been permanently resolved.

Acequias sound like a great option to distribute available water equitably, at least in theory. But in practice, shifting from large industrialized water systems to community-oriented ditches won’t be easy. First, acequias are not a protected practice federally or in all Southwestern states, and there would be legal barriers to challenging corporate water companies with any changes.

But perhaps more important, there’s a cultural shift that comes with putting the community over the individual, a rare concept in our profit-driven economy.

Individuals who use these systems acknowledge this reality. “It is a cultural practice, grounded in the cultural values of sharing … It’s not something that you can force people to do. It really has to happen from a place of understanding and empathy,” says Garcia. She added, “It gets lost in the technical issues of infrastructure and water rights, but [the acequia’s] essence is sharing water and sharing labor, and that magical combination makes the water flow.”

Jock Jacober, president of the Sangre de Cristo Acequia Association based in San Luis, Colorado, told me, “I happen to philosophically believe that it is the proper way to manage natural resources on Earth … The acequia is the kind of method that would be useful to human beings if they could cooperate and learn how to use their resources … In the face of climate change, these kinds of practices are going to become more important.”

As far as expanding acequias on the political side, researchers like Oglesby believe that there is more to be done to “increase education among our decision-makers about creative alternatives to priority enforcement.”

While it can’t be predicted how acequias might grow throughout the Southwest in the future, their communal legacy of acequias will undoubtedly live on. n Aina Marzia is a writer from El Paso, Texas, covering intersectional politics, and an incoming freshman at Princeton University. Her work has been seen in The Nation, Teen Vogue, The Daily Beast, Grist, The New Republic, NPR, Insider, and more. Lajward Zahra is a freshman at Rice University, originally from El Paso, Texas, reporting on public policy and culture. Her work has been seen in The Nation, Prism, and The Rice Thresher.

FEBRUARY 2024 THE AMERICAN PROSPECT 15

Amerıca Democrats have spent much—some might say all—of the last two presidential elections warning about the threats to democracy embodied by Donald Trump. The 2024 election is already being pitched not as a choice about taxes or health care or social policy, but a final test of whether we will have a republic or a dictatorship.

Trump is a more than worthy subject of concern for anyone hoping for democracy in 2025. Last time he was president, he actively resisted the peaceful transfer of power, a hallmark of despots the world over. To the extent he and his authoritarianfriendly advisers learned anything from the first term, it was how to neutralize obstacles to expanding power.

His musing about being a “dictator on day one” is really not loose talk. The plans emanating from Team Trump to destroy the civil service, hire government lawyers to rubber-stamp unconstitutional actions and prosecute personal enemies, and even deploy troops on American soil are truly alarming.

But something troubles me about that term, “threat to democracy.”

It has become a catchall phrase for resistance to conservative extremism, and specifically Trump. Yet the deficiencies in American democracy 16 PROSPECT.ORG FEBRUARY 2024

go back to the very founding, and the long arc of history hasn’t come close to correcting all of them. The larger crisis we now face is not solely attributable to an individual with malign intent for our government; it’s more about the system of government itself.

Exactly what part of democracy are we trying to save? Is it our democratic legislature, gerrymandered and malapportioned beyond recognition, with supermajority thresholds that deny rule even by that corrupted majority? Is it our democratic presidency, which Trump legally took over after losing the popular vote in 2016, and George W. Bush in the same fashion 16 years earlier? Is it our democratic judiciary, morphed into a super-legislature and habitually twisting the Constitution to advantage those with power, money, and influence?

Are we worried about a democracy that can be so easily purchased, where corporate lobbyists either win whatever they want on Capi-

tol Hill, or win by regulatory change or international trade treaty whatever they don’t? Has this government, where the most important modification of our democracy’s original sin, the second-class citizenship of Black people, is now being steadily reversed by state legislatures and the courts, earned our support? Is there despair over losing something that has produced unequal opportunity, unequal justice, and the conversion of economic power into political power?

Where can we find this democracy we need to fight to preserve?

a Demo THREATS TO

DEMOCRACY

The movement to save democracy from threats is too quick to overlook the problems that have been present since the founding.

By David Dayen

t o Is N ILLUSTRATIONS BY DANIEL ZENDER

No democracy perfectly distills the will of the people. But America is uniquely terrible at achieving democratic outcomes. It’s worth focusing our energies to repair that, because the alternative really is too grim to contemplate. But there are only a few options here. We can defend “democracy” as an amorphous concept that this country has almost never lived up to. We can uncover escape hatches, short-term circumventions of the rules, either to disqualify Trump and the threat he represents, or to take action on policy challenges. We know the names of these band-aids: budget reconciliation, the Electoral Count Reform Act, the 14th Amendment.

But we don’t deserve to live as political Houdini figures, trying con-

stantly to work our way out of shackles imposed on us by our own system of government. If a political movement is going to style itself as the savior of democracy, it should also speak plainly about the myriad deficiencies in our democracy, and what it would actually take to fix them.

American democracy isn’t very successful not despite being the world’s oldest, but because of that fact. The Founding Fathers—primarily aristocrats, land speculators, and slaveholders—had noble aspirations but limited belief in true democracy. They distrusted agglomerations of power, whether in a monarch, political parties, or the people. As historian Terry Bouton has written, Founders like

Alexander Hamilton and Elbridge Gerry detested an “excess of democracy” that could lead to a dangerous outbreak of economic equality.

They thus devised a system built for a small, agrarian country, intended to make addressing social challenges extremely difficult. Presidents don’t get to form the government, and the legislature responsible for enacting the laws is elected at different times. The framers wanted the House, Senate, and presidency to compete with one another, to curb each other’s power, and in that competition to disable the desires of the people, even if they constituted a majority. Montesquieu, the French philosopher who inspired the founders to build a system of checks and

ocracy

FEBRUARY 2024 THE AMERICAN PROSPECT 17

balances, hoped a government so conceived “should naturally form a state of repose or inaction.”

The biggest tell of how misaligned this approach is for the modern world is that, when we periodically overthrow perceived enemies and install what we call democracies in other countries, we almost never use the core aspects of our own system.

The federal government of Iraq has a figurehead president and a parliament, with the prime minister as the head of government. Democracies installed after World War II in Germany and Japan and Italy were given a similar framework.

In a parliamentary structure, the head of government runs the legislature. Coalitions can collapse, but then snap elections are held for a new majority that can adopt its platform. America can have divided government indefinitely; since 1980, the presidency and both houses of Congress have been in the same hands for only 12 years and six months (from January to June 2001, after which a party switch flipped the Senate), with the other 31 and a half years divided.

Both Congress and the president can claim popular mandates to thwart the other, leading to unsatisfying stasis at best and perpetual crisis at worst.

In the last nine national elections, America has changed at least one house of Congress or the presidency every time except for 2012. More than half of those elections were landslides: 2006, 2008, 2010, 2014, and 2018. Legislative action in those two decades in no way matches these successive Democratic and Republican mandates.

Bipartisan fetishism aside, there are real differences of opinion in America, which should be settled through elections. But voters keep electing a new party to fulfill promises that are blocked by the structure of the political system and its status quo bias.

Political scientist Juan Linz’s 1990 essay “The Perils of Presidentialism” makes the case that governments with separately elected presidents are notoriously unstable. American democracy sidestepped these showdowns for decades, Linz explained, due to ideological flexibility among the 18 PROSPECT.ORG FEBRUARY 2024

parties. Anyone pining for these “good old days,” of course, is pining for the racism that was the principal reason for this temporary condition. Southern segregationists with historical ties to Democrats stuck with the party for much of the 20th century, with liberal Republicans anchored to that party’s radical past. This gave Democrats and Republicans separate liberal and conservative wings, creating pressure for cross-partisan dealmaking.

After Lyndon Johnson signed civil rights legislation and wrote off the Solid South, politicians gradually sorted into polarized ideological camps, and this brought inevitable, inescapable gridlock. That conflict is built into our system of government, not the character of its politicians.

America combines its presidential framework with first-past-thepost voting, where election winners take all the power, rather than a proportional system of power-sharing.

Political scientists have observed something called Duverger’s law, which says that a first-past-the-post system with a single ballot (rather than a runoff) inevitably favors two parties, while two-ballot or propor-

tional representation systems favor multiple parties. That’s why thirdparty voters in the U.S. are routinely demonized as spoilers, even “the biggest threat, I think, to democracy,” as Barack Obama campaign manager Jim Messina recently said.

While we see democracies with both presidential and parliamentary systems, and democracies with first-past-the-post and proportional representation, America’s variant is exceedingly rare. Lee Drutman, a senior fellow at New America, looked at 78 relatively stable democracies around the world, and found just four with presidents and majoritarian legislatures: the U.S., Ghana, Liberia, and Sierra Leone. Our system is not replicated because it’s not effective.

The Founders wanted little to do with democratic self-government, and instead vested presidential electors, chosen by whatever manner a state legislature saw fit, with the power to exercise independent judgment. (In the original conception, all electors were faithless.)

Things have gradually moved in the direction of making electors

pro forma tribunes of the popular will. But that creates 51 parallel and improperly weighted elections in the states and the District of Columbia, giving residents of smaller states more control over who wins the presidency. Today, California has 18 times as many electoral votes as Wyoming, but 66.3 times the population.

It’s actually worse than that. Since college, I’ve lived in Illinois and California during every presidential election, and have been disenfranchised every single time. The machinist from Alabama or the teacher from South Carolina has also had their vote essentially extinguished. All four of those states have voted for the same party in the presidential race since 1992. This year, conventional wisdom suggests that there will be (along with two swing congressional districts in Nebraska and Maine, the only two states that apportion some electors based on the district vote).

The other 45 elections are already committed to the Democratic or Republican nominee.

Within those swing states, you can pinpoint the tiny universe of voters who will pick the most powerful ruler in the free world for the next four years. Campaign strategists put the number consistently at around 400,000 voters, out of 150 million expected to vote in the next election. So about 99.8 percent of all voters are rendered relatively unimportant. This has huge consequences for democratic legitimacy, because swing voters do not always match the broader electorate. In two of the last six elections, the elected president did not get the most popular votes.

The second-place vote-getter almost

In the last nine national elections, America has changed at least one house of Congress or the presidency every time except for 2012.

won a third time in 2020, and could easily win again in 2024.

The rules for choosing Congress are as anti-democratic as the rules for choosing a president. The 17th Amendment (1913) at least made U.S. senators popularly elected rather than installed by state legislatures. But the awarding of equal numbers of seats by state continues to make a mockery of democracy. A series of Supreme Court decisions in the 1960s determined that districts in state and federal legislatures needed to have equal populations, to follow a “one person, one vote” standard inherent in the Constitution’s Equal Protection Clause.

Under this standard, the Senate is blatantly unconstitutional, despite being embedded in the Constitution.

Meanwhile, the House’s balance of power is today increasingly determined not by the popular mood but by arbitrary district lines. Only a tiny fraction of House seats are even competitive, with most pre-arranged for Democrats or Republicans. And in an age of greater mapping technology, redistricting has led to a titanic clash of raw political power. As David Daley ably documented in his book Ratf**ked, $30 million in corporate contributions tossed into state legislative races in 2010 definitively changed who had the power to draw district lines, and therefore the country’s legislative output, for close to a decade.

Redistricting battles no longer end with the first map. In 2024, Maryland, Georgia, Alabama, North Carolina, South Carolina, Louisiana, and New York will likely use different congressional district lines than in 2022, due to changes in the political orientation of state supreme courts, rulings at the federal level, or unresolved court fights. There is also active litigation in Florida, Utah, Texas, Arkansas, and Tennessee, and possibly Wisconsin.

That’s over one-quarter of the country’s states potentially redoing redistricting after maps were already set.

Somehow, none of these skirmishes address the fact that the approximately 678,972 residents of Washington, D.C., nearly half of them Black, are offered no voting representation in Congress, just because.

Currently, all of these defects in the constitutional order wire Washington for Republicans, because the party controls more small states, wastes fewer votes in presidential elections, and maximizes its redistricting advantage. Democrats control 11 of the 12 Senate seats in true swing states, yet still need three seats in Republican Ohio, Montana, and West Virginia to hang onto the barest 51-seat majority. Similarly, the party often needs large popular-vote majorities to take the presidency.

But minor geographic voting shifts or Democratic gerrymandering victories could flip that script.

Texas f lipping to a purple or blue state could lock Republicans out of the White House. So nobody truly benefits from a misshapen electoral system, least of all the people.

Even if our government were redesigned to resemble the preferences of the people voting, we still wouldn’t have much democracy in America.

For one, you cannot presume that public preferences are reflected in ballots cast. From the beginning of the republic, factions have limited the universe of voters to those most inclined to agree with them. Black people didn’t obtain access to this democracy we revere until the Voting Rights Act of 1965, and that law has been under legal attack ever since.

John Roberts’s Supreme Court, declaring racism over, gave states the opportunity to suppress votes without Justice Department interference in the Shelby County ruling in 2013.

A federal appeals court went further recently when it ended private litigation challenges under the VRA. Voter suppression comes in so many forms that Black people aren’t the only ones caught up in the dragnet. Five states prohibit student IDs to be used for voting, and some students are prevented from voting in the locations where they attend college. A lack of physical voting machines in poorer areas can cause long lines at the polls. Many states, to be sure, are expanding access to the ballot. But that is creating inequality in voting rights by state, where your FEBRUARY 2024 THE AMERICAN PROSPECT 19

chance to participate in our democracy is bounded by your residence.

Once lawmakers do reach Congress, the situation is arguably bleaker. The Founders designed the Senate as a cooling saucer for the hot passions of the larger and more democratic House of Representatives. That saucer has been frozen over by the filibuster, an accident of history that makes it so that 41 senators representing a small fraction of the population can block all legislative action. While historically employed rarely, mainly to shut down civil rights legislation, the filibuster has in recent decades become a catchall for a minority of the Senate to impose its will. “In the Senate today, perhaps alone among the legislative bodies of the world,” writes Sen. Jeff Merkley (D-OR) in his recent book Filibustered!, “the power to bring a policy bill to a vote by simple majority does not exist.”

Filibustering lawmakers no longer need to speak to wield the minority veto; they can just lodge an objection to shut things down. Even relatively uncontroversial votes can take days, regardless of support, as long as one senator is determined enough to oppose it. Sen. Tommy Tuberville (R-AL) blocked hundreds of perfunctory military promotions for months over Pentagon abortion policy; confirming each promotion separately would grind the Senate to a halt. Lawmakers in the minority know this, so they take every opportunity to run out the clock.

You can fill a book with issue areas where public opinion roundly supports action but Congress doesn’t act. Minority vetoes are partially to blame, as is distorted representation.

But there’s also the problem of who lawmakers see as their constituents: the wealthy and powerful.

The classic text on this comes from Martin Gilens and Benjamin Page, two researchers who found in 2014 that the preferences of “economic elites and organized groups representing business interests” mattered far more for policy outcomes than ordinary citizens or coalitions of public-interest groups. There have been rebuttals to their data over the years, but reality is on Gilens and Page’s side. In a recent 20 PROSPECT.ORG FEBRUARY 2024

interview, Page said, “When they say democracy may be failing, I would disagree. I think it hasn’t been tried!”

Between 71 and 98 percent of U.S. federal elections over the past 20 years were determined by which candidate had the most campaign money. This was enabled by a judiciary that allowed corporations to be considered people for purposes of equal protection under the law, a constitutional provision intended to safeguard the rights of Black former slaves. Corporations later obtained what amount to free speech rights in the Citizens United case, part of a decades-long approach, as writer Corey Robin has explained, to reorient the practices of “the businessman and the banker” as speech.

With creative interpretations and invented doctrines, the Supreme Court has reorganized itself into a second legislature, rendering an additional veto over laws it doesn’t like. The key strategists behind this new order like to use the term “originalism,” linking their perversion of democracy’s present to the inadequate structures of the past.

Every action the government takes is now viewed through the lens of potential infringement on corporate rights, pulverizing the will of policymakers, who regulate and enforce with an eye toward not getting sued.

And corporations are in the room where it happens. Government lobbying cost over $1 billion in just the first three months of 2023. When the Dodd-Frank Act passed—with the tailwind of a world-historic financial crisis enabling a muted reform to barely gain enough votes—lobbyists from the financial services industry called it “halftime,” and set about to shape the rules derived from the law in their interest, mostly successfully.

There have cer t a in ly been moments in American history when concentrations of economic power were seen as dangerous; we’re living through the resurrection of one of those moments right now. But the relinquishing of antitrust enforcement over nearly half a century prior has given large corporations far too much political power in our democ-

racy. Indeed, the very act of concentrating business sectors leads to a loss of basic, inalienable rights: the liberty to pursue your talents or discover new inventions without being muscled out by an economic leviathan.

When success in American politics hinges so overtly on wealth and influence, can the word “democracy” truly be used?

Our sclerotic government naturally leads the politically engaged to seek work-arounds to get things done. For example, the budget reconciliation process, intended to facilitate spending decisions, has been turned into a one-time “get out of the filibuster free” card, allowing governing majorities to pass bills along party lines. Reconciliation bills must have a budgetary impact, putting an entire segment of policy ideas into a more insurmountable category of legislating.

Many would count me as guilty of an “end run around democracy” mindset. In 2019, we featured in these pages the Day One Agenda, a series of options to use executive action to implement existing laws in ways that would solve pressing problems in the country. I definitely cop to having a lot of frustration over policy gridlock and congressional abdication of lawmaking. And I do see the constitutional role of the executive branch, to “take care that the laws be faithfully executed,” as perfectly consistent with making sure that those existing laws are carried out with maximum impact.

However, I recognize that the line between creative statutory interpretation for the public good and measures to simply arrogate power to the exec-

Between 71 and 98 percent of U.S. federal elections over the past 20 years were determined by which candidate had the most campaign money.

utive can often be razor-thin. Last December, at a time when Joe Biden was presenting his re-election campaign as a battle to preserve democracy, his State Department twice prevented lawmakers from their statutory responsibility to review military sales. Both cases involved shipments to Israel, and the administration cited emergency exceptions in the Arms Export Control Act. But these were clearly employed to evade legal scrutiny that bars the U.S. from providing weapons to countries that violate international law and human rights.

The emergency trigger was last used in the Middle East in 2019 by the Trump administration, to hand over weapons to Saudi Arabia for its proxy war in Yemen, which as in Gaza led to untold civilian casualties. No president has a monopoly on expansions of executive power; you could go back to Lincoln suspending habeas corpus or FDR rounding up American citizens of Japanese descent or successive presidents making war in Vietnam without a congressional declaration to find some really juicy tramplings of constitutional law. War powers are violated routinely, statutes are ignored or twisted with regularity, and implementa-

tion rarely follows the straight line that legislative intent might dictate.

But you cannot solely blame individual actors for lifting up the rug in search of a trapdoor to flee the escape room that is American democracy. If our government made any sense at all, you wouldn’t need budget reconciliation to simply hold a majority vote. I certainly wouldn’t pound the drum for executive action so much if it weren’t practically the only way to have a successful presidency in the modern era.

Government by random leverage plays is not a sustainable solution to our ills. First of all, it enables escalating aggrandizements of power, using the ever-popular “they started it” rationale. Constitutional hardball, as Harvard Law’s Mark Tushnet calls it, leads to chronic shattering of norms and conventions, especially when combined with modern political polarization.

We’re seeing this play out in real time. Donald Trump has taken to describing Joe Biden and his allies, actually, as the true “threat to democracy,” for attempting to hold him accountable. The conservative reaction to the judicial project to throw Trump off the ballot, per the 14th Amend-

ment’s disqualification for citizens who “have engaged in insurrection or rebellion” against the United States, is that it risks a democratic breakdown. The series of criminal indictments Trump has faced, meanwhile, has led him to announce that he will appoint a special prosecutor to “go after” Biden and others if he returns to office.

There’s nothing new about Trump or his allies spinning attacks back onto their accusers. He is depicting for his voters a politics that is fully self-serving, where the rules matter if they benefit him and don’t matter if they don’t. The problem is that even legal constitutional work-arounds can often resemble this anythinggoes world that Trump wants to operate in, to justify his own illiberal conduct. It can lead to public confusion or even anger. Which democratic principle is a president willing to subvert? Why is speeding weapons to pulverize civilians in Gaza worth cutting statutory corners, but not ensuring that all Americans have quality and affordable health care?

The observation that laws only apply some of the time breeds cynicism and alienation. Americans that working hard and playing fair allows people to prosper. That learned helplessness is reinforced by a political system where outcomes are unconnected to majoritarian wishes. America has slipped behind peer nations on a host of economic metrics because its government is not equipped to keep up. And when the public feels consistently ignored by their government, they lose trust and search for answers in demagogues with simple answers and familiar scapegoats, people like … Donald Trump.

It is true that even Western democracies with superior governmental structures are suffering from crises of legitimacy, rising nationalism, and the ascent of right-wing populists.

Global hyper-capitalism and neoliberal accommodation surely plays a role here. But America casts a long shadow, and handing over policy to big business was a function of the handcuffs our government places on itself.

Some people may recoil at putting the nation’s founding documents at the FEBRUARY 2024 THE AMERICAN PROSPECT 21

center of our problems. But I don’t think it’s avoidable, given the evidence.

A remarkable poll result last December showed that majorities of Republicans and Democrats believe democracy is at stake in the 2024 election, for entirely different reasons.

Trump actually leads in some polling on measures like “protecting the Constitution.” I would argue that straining to overcome the sundry obstacles the Founders put in place looks too much like subverting democracy for inattentive people to discern the difference. And the chronic inability to overcome those hurdles means that the primary threat to democracy is the Constitution itself.

The inability for presidents and parties to enact their platform when they win is a primary cause of so much frustration within the political system. The bind we’re in is that the kind of reforms we need, so that people can believe that political participation means something, don’t map onto a Constitution that locks the people out. As law professors Ryan Doerf ler and Samuel Moyn have described, a politics that asks an inadequate higher law to settle disputes “inevitably orient[s] us to the past and misdirect[s] the present into a dispute over what people agreed on once upon a time, not on what the present and future demand for and from those who live now.”

I’d prefer a parliamentary system, with the president demoted to a ministerial role. A House with proportional representation that gives a portion of representatives in a particular district or state to candidates who attain a certain percentage of votes would inspire parties to compete on the basis of attracting voters rather than demeaning rivals as a waste of a vote. It would also make gerrymandering irrelevant. My top solution for the Senate is to not have one; a second-best option would see it transformed into something like the House of Lords, without the power to veto legislation, just to amend with approval from the House.

This setup, which serves much of the rest of the industrialized world 22 PROSPECT.ORG FEBRUARY 2024

just fine, would allow multiple parties to vie for power, form governing coalitions, and transform America into a functioning democracy. Most of it is incompatible with the current rulebook, where the president and the Senate’s powers are clear and unbending. The Senate’s membership, per the Constitution, also must be equal by state. And in their wisdom, the Founders made their creation almost impossible to amend. (Lowering that barrier somewhat might be the most democratic reform of them all.)

It’s tempting to say that we need a constitutional convention to completely rewrite the nation’s governmental order. But that’s a dicey scenario.

In the meantime, we can also move toward the better democracy we need by trying democracy for a change.

Abolishing the Electoral College, supported by the public by a 2-1 margin, is one piece of low-hanging fruit. The National Popular Vote compact would allow states, as is their constitutional right, to band together and deliver their electoral votes to the popular-vote winner. States with 205 electoral votes have already signed this into law; the final 65 electoral votes will be difficult to find but not insurmountable.

A popular-vote election for president would force broader appeals and create imperatives among parties to expand rather than suppress voting rights. (Enforcing Section 2 of the 14th Amendment, which as written can strip representatives and electoral votes from states that disenfranchise voters, would also realign incentives.) Perhaps more important, it would signal that the people have the power to throw off the constitutional straitjacket.

If we don’t end the Senate, we can consign the filibuster to the dustbin of

The inability for presidents and parties to enact their platform when they win is a primary cause of so much frustration within the political system.

history, so a majority of senators can pass legislation they favor. The Senate can also be made more democratic by extending representation to voters who are currently completely shut out, like those of Washington, D.C., Puerto Rico, and other territories, to at least give American citizens the unequal representation they deserve.

Increasing the House’s membership so that one representative doesn’t speak for such a large constituency is an option. Congress has the authority to set the number of House members, but the 435-member House has not changed since 1913; at the time, there were a bit more than 200,000 constituents for every House member, and today there are 761,169. This could also reduce the bite of gerrymandering, as smaller districts offer fewer opportunities for distortion. Congress could also require independent redistricting commissions to stop the endless titfor-tat of gerrymandering.

But Congress could also adopt proportional representation in the House, through Article I, Section 4, authority from the Constitution to decide the “time, places and manner” of its own elections. It could create multimember districts and minimum thresholds for representation.

An aggressive Congress could even vote through changes to its internal structure, making the Senate more of an advisory body and putting a proportionally elected House in the lead.

What if the Supreme Court, in its self-appointed role as super-legislator, decides that these changes remove our democracy from its previous character and therefore must be nullified? Many Court reforms have been discussed, from 18-year term limits that allow presidents to nominate a justice every two years, to expansion of the Court’s membership. But Congress doesn’t need to let the Court even have a say in this matter. Bringing the judiciary’s power to review policy decisions in line with other democracies by stripping jurisdictions and restoring congressional prerogatives is an option the legislative branch is increasingly using, and it could rebalance the coequal branches and reverse judicial power grabs.

We can and should make voting easier, through automatic voter registration, expanded early vote and vote by mail, and universal voting that requires every citizen to vote. But a transformative democracy agenda would also enable political participation outside of Election Day. Having representatives who are closer to the people and able to actually do their job would give the public a greater chance of being heard by their leaders.

None of this will be easy. The same high veto points that alienate people from this democracy will provide tremendous obstacles to overhauling it.

But as Perry Bacon Jr. has written in The Washington Post, being specific about the actual democracy we want, rather than an abstract idea that doesn’t match America’s reality, is more honest and more likely to inspire support. Voters in 2022 and 2023 reacted to specific revocations of rights, like the right to an abortion. They were not inspired by a generic rights agenda. The way to save democracy is to promise to give people one in the future.

We know it’s possible to fashion an agenda like this, because it’s already been done. In December 2012, the Communications Workers of Ameri-

ca (CWA), Greenpeace, the Sierra Club, and the NAACP launched the Democracy Initiative, a plan to challenge the “democracy blocks” that stymied popular reforms. It was fitting for this to come out of the labor movement.

After a decisive Democratic victory in the 2008 elections, unions had a majority of votes in Congress in favor of reforming U.S. labor law, but could not get them through a supermajority Senate. This roadblock is the primary reason private-sector unionization has fallen from 35 percent to 6 percent since the 1950s.

The coalition highlighted three key areas of reform: changing Senate rules to eliminate the filibuster, limiting money in politics, and enhancing voting rights. They actually notched some partial victories. The Senate changed its rules in 2013 to allow for a majority vote for executive branch and judicial nominees. Voter participation has gradually risen in some locations, in part due to new pandemic-era rules to maximize participation, which states like Michigan have retained.

Larry Cohen, CWA’s former president, has used his perch as a Democratic National Committee member to ban superdelegates, party regulars who get a personal vote in presidential nominating races. But that

ban only lasted until 2020 and will need to be relitigated at the 2024 convention. Cohen also believes that Democrats could ban dark money in primaries, which are organized privately by the parties and could proceed under party rules. (An attempt to even discuss this at the DNC last year was squashed.)

Cohen thinks the reform movement needs to build, because people are losing faith. “That’s what [former Sen.] Tom Harkin said so well,” Cohen told me. “He repeatedly said, ‘People are cynical in this country because we don’t have a democracy.’”

The truth is that a few unions and membership-based organizations don’t have the strength to carry home the more prodigious project of fundamental transformation. It needs to come from a head of state, a product of the democracy we have who lays out the steps to improve it.

Joe Biden’s first speech of his reelection campaign was held about 15 miles from Valley Forge, Pennsylvania, where the Continental Army sheltered for a long winter in 1777 to regroup in its battle with the British. He eloquently laid out his likely opponent’s contempt for basic tenets of democracy: his failure to honor the outcome of elections or respect the Constitution, his threats of violence against political opponents, his vows to use political office as a platform for revenge.

“Today, I make this sacred pledge to you: the defense, protection, and preservation of American democracy will remain, as it has been, the central cause of my presidency,” Biden told the audience.

This presumes that American democracy was bumping along just fine until Trump descended that gilded escalator in Trump Tower in 2015. It’s next to impossible for someone with 50 years inside the system to admit that democracy has always been under threat in this country. But failing to speak that truth helped bring us to this point.

If defending American democracy is indeed Biden’s central cause, he shouldn’t be so shy about pointing out its insufficiencies. n FEBRUARY 2024 THE AMERICAN PROSPECT 23

Breaking the Ballot R epublican state lawmakers are enthusiastic practitioners of direct-democracy backsliding.

Can voters hold them off?

By Gabrielle Gurley

24 PROSPECT.ORG FEBRUARY 2024

Liberal ballot initiatives for (from left) legalized marijuana, minimumwage increases, and abortion rights have flourished in recent years.

JOHN MINCHILLO/ AP PHOTO

In Arkansas, Republican state lawmakers have started going after their most dangerous political opponents: their own voters. They can’t quite comprehend why voters deliver wins on controversial ballot questions like legalizing medical marijuana and implementing a graduated minimum wage. Some of the poorest Americans now earn one of the highest minimum wage rates in the South—at $11 per hour—after voting by a staggering margin almost six years ago to give themselves a pay hike.

But with overwhelming majorities in both chambers of the General Assembly, Republicans decided to opt out of “consent of the governed.” Two years ago, they put a constitutional amendment on the ballot, asking voters to participate in their own collective defenestration by increasing the threshold for passing constitutional amendments, initiated acts, and referendums to a supermajority of 60 percent. (They had tried and failed before in 2020.) The people voted not just no, but hell no, by nearly 20 percentage points, which translates into Republicans, not

just Democrats or independents, rejecting the gambit in this GOP trifecta state.

No matter. Last March, they passed legislation to require ballot campaigns to collect tens of thousands of signatures from at least 50 of the state’s 75 counties, 35 more than the previous threshold and five more than the 2020 constitutional amendment had proposed. Republican Gov. Sarah Huckabee Sanders promptly signed it.

Recruiting enough people to collect the necessary signatures from registered voters in a state that has some of the lowest voter turnout and registration rates in national

And so, they’re trying to ban voters from making decisions.”

Republicans tout preferences for limited government and individual liberties. No longer willing to make coherent cases to voters, in many cases they have resorted to exquisitely gerrymandered state legislative and congressional districts, designed

to eliminate challenges to one-party rule.

When voters respond with successful ballot measures to counterbalance that overreach, state lawmakers, particularly in trifecta states like Arkansas and Ohio, have become some of the most enthusiastic practitioners of direct-democracy backsliding. What they really prefer is acquiring and entrenching power.

If voters cast ballots in accordance with the party line, of course, there is no problem. If they support Democraticidentified issues, like marijuana legalization, higher minimum wages, and most recently abortion and broader reproductive rights—issues that actually appeal to large segments of the electorate—then the Republican counterreaction has been to prevent ballot measures from getting to the ballot, either through imposing hurdles to qualifying, writing deceptive ballot language, raising thresholds for passage, or eliminating them altogether. And when ballot measures manage to pass despite these obstacles, Republican legislatures have worked to invalidate them—disregarding the consent of the governed when it conf licts with their conservative policy aims.

These actions resemble a paternalistic “my way or the highway” approach, to ensure that every single election can only achieve a very specific outcome on Repub-

DAVID GOLDMAN(TOP), RYAN SUN / AP PHOTOS

THREATS TO

DEMOCRACY elections was a monumental challenge even before Republican lawmakers changed the rules. In Arkansas, canvassers cannot be paid per signature and must be both citizens and state residents, and must pass a criminal background check.

“They are hell-bent on making it more difficult for citizens to put any kind of measure before voters,” says Bill Kopsky, executive director of the Arkansas Public Policy Panel. “The legislature here doesn’t like the decisions that voters are making.

FEBRUARY 2024 THE AMERICAN PROSPECT 25

Arkansas Gov. Sarah Huckabee Sanders responded to controversies about official spending by trying to exempt her records from public view.

This breakdown in early 21st-century American politics recalls the period that spawned the direct democratic reforms that are under siege today. At the dawn of the Progressive Era, at the end of the 19th century, coalitions of farmers and urban workers across the country began to resist the businessmen controlling railroads and other sectors and the party bosses running cities and towns.

Populist reformers promoted people power (of white men; women did not vote until 1920, and Native Americans attained voting rights in 1924, but states ignored the law for decades) to counteract these influences, through initiative statutes, constitutional amendments, and referendums on previously passed legislation.

South Dakota was the first state to establish citizen-initiated ballot measures, earning approval in 50 of 59 counties in 1898.

Opposition was virtually nonexistent. The South Dakota newspaper Vermillion Plain Talk (which still publishes today) thundered, “The issue of the future is whether or not the people are to rule this country.”

Arkansas passed its first-in-the-South direct-democracy reforms in 1910 after a statewide rail tour by William Jennings Bryan, the three-time Democratic Party candidate for president, and state political luminaries. Over the next decade, 12 mostly 26 PROSPECT.ORG FEBRUARY 2024

Midwestern and Western states approved initiative or referendum processes, including California, where progressive Gov. Hiram Johnson, who ran alongside Theodore Roosevelt on the Progressive Party ticket in 1912, ushered in the most robust direct-democracy framework in the nation.

Today, 26 states and the District of Columbia allow initiatives and referendums.

Some of Arkansas’s most important policy reforms have been implemented through ballot measures: workers’ compensation, term limits, campaign finance reforms, and more recently medical marijuana and minimum-wage increases. Others have been voted down: Recreational marijuana failed last year. A proposed constitutional amendment pending with the attorney general that would permit abortions up to 18 weeks would be challenging in one of the most religious states in the country.

When politicians attempt to deny citizens rights and privileges they’ve held for decades, ballot measures can come into play as a tool to push back on the overstepping.

Sanders learned this lesson firsthand when she tried to effectively invalidate the 57-yearold Arkansas Freedom of Information Act. Over the past year, Sanders’s domestic and international official travel, including a trade mission to the Paris Air Show, attracted the attention of Matt Campbell, an attorney then blogging at BlueHogReport, who had the temerity to request travel documents related to the governor’s spending on travel and security. The state police

Republican actions resemble a paternalistic “my way or the highway” approach, to ensure that every single election can only achieve a very specific outcome. denied Campbell’s request based on security concerns, but did deliver some records.

Campbell, now an investigative reporter with the Arkansas Times, found receipts for a nearly $20,000 lectern, made of wood and trimmed around the edges in blue, and purchased with state-issued credit but apparently not through the required procurement channels. “Lecterngate” entered the state’s political lexicon, and the lectern entered the world of Arkansas memes. (A “snow­ podium” popped up on X, formerly known as Twitter, after an early-January snowfall.)

In response, Sanders convened a special session of the legislature to pursue a new law that would exempt a broad swath of the governor’s records from public view. The attack on FOIA riled up this deeply conservative rural state and united people across the political spectrum—from far-right Republicans to farleft activists—in a battle to preserve access to

AL DR AGO/ AP PHOTO

lican terms. Power can only be exercised by small groups of political far-right partisans who at times side with business interests. If the people make an unwelcome choice, then it’s time to curb their voting rights.

government records. The bipartisan revolt that erupted among state lawmakers forced Republicans to pass a narrower limitation on state FOIA laws—and they agreed that questions about Sanders’s travel and expenses were valid. A legislative audit is in progress.

Arkansas Citizens for Transparency (ACT) emerged out of the controversy with a ballot measure campaign for a constitutional amendment to enshrine the right to access public records, along with an initiative to prohibit the legislature from restricting residents’ access to information about government processes from sources like public meetings, notices, and records, among other provisions. “When the legislature went to the point of trying to make it more difficult to engage in direct democracy, that woke up a lot of people,” says former Democratic state senator Joyce Elliott, executive director of the civic engagement group Get Loud Arkansas.

“Try to make sure people could not use the FOIA to get information, starting with a lectern?” adds Elliott, who is working with ACT. The governor, she believes, would have been better off admitting that she made a mistake rather than going after publicrecords laws.

The controversy may determine Arkansas voters’ tolerance for political meddling with long-established rights. Elliott believes that Lecterngate will get voters to the polls.

“Truly, this will be on-the-ground, localinterest turnout more than anything else,” she says. Ballot questions on ending state taxes on diapers and menstrual products, reinstating paper ballots, and a suite of education reforms could also go before voters—if they make the cut. A constitutional amendment for vocational/technical schools grant and scholarship funding is already set; amendments passed by the legislature go straight to the ballot. These potential ballot measures could generate more heat than the presidential race, where the Republican at the top of the ticket will easily take the state’s six electoral votes. But in mid-January, Arkansas Attorney General Tim Griffin sent the ACT ballot measure writers back to their keyboards yet again to come up with language that passes muster. The clash may lead to a see-you-in-court moment.

In a 2023 white paper, John Matsusaka, executive director of the University of Southern California’s Initiative and Referendum Institute, examined state legislative ballot measures from 1960 to 2022 to

determine the incidence and the causes of direct-democracy backsliding. Although Matsusaka did not find “an increasing trend” during this period (rather the number of anti-democratic ballot measures “peaked” between 1995 and 2004), he notes that Republican legislatures (64 percent) have been out in front in putting forward proposals to restrict direct democracy. Democratic legislatures came up with far fewer (19 percent) of those types of plans, while the rest originated in mixed chambers.

“Anti-direct-democracy efforts were largely driven by elites—ordinary voters did not appear to share the negative orientation of their elected representatives,” Matsusaka writes.

The reaction against ballot measures coincided with the rise of the religious right. Anita Bryant, a popular 1960s singer who promoted Florida orange juice, was the voice and the face of crusades against same-sex marriage ballot measures that began appearing across the country in the mid-1970s. Religious conservatives doubled down on their hostility toward gays, and narrowed their focus to same-sex marriage.

By 2004, Karl Rove, one of George W. Bush’s key advisers, made wedge-issue ballot measures central to the president’s re-election campaign, putting anti-same-sex-marriage initiatives on the ballot in 11 states. The goal was to draw out social conservative voters for Bush, and those moves increased his county-level vote in some states.

But religious conservatives did not count on changing social attitudes that would culminate in the 2015 Obergefell v. Hodges Supreme Court decision that legalized samesex marriage and invalidated all state prohibitions. Yet their LGBTQ attacks have never really subsided. Instead, they’ve morphed into new campaigns against transgender people.

Missouri and California have gender identity initiatives in the signature-gathering phase; both could potentially be on the 2024 ballot.

Partisan gerrymandering has also fueled direct-democracy backsliding. “There is a strong trend of lawmakers, particularly in heavily gerrymandered states, seeing the ballot initiative process as a threat to their power, as opposed to a legitimate mechanism for policymaking,” says Alice Clapman, senior counsel for democracy at the Brennan Center, pointing out that Ohio, Arkansas, and Missouri are consistently three of the most heavily gerrymandered state legislatures.

Some Republican governors and legis-

latures have moved to block approved ballot measures, or in some cases to simply ignore them. Seven states have gone that route to secure Medicaid expansion. Maine passed Medicaid expansion in 2017 by an overwhelming margin, but Republican Gov. Paul LePage fought off every attempt at implementation. His Democratic successor Janet Mills finally steered the program in place, signing an executive order on her first day in office in 2019.

In Missouri, voters approved Medicaid expansion in 2020; the next year, the state legislature excluded the expanded coverage from its annual budget. But after a contentious legal fight, the state supreme court ruled the ballot measure constitutional, and 275,000 low-income adults got coverage.

Like FOIA in Arkansas, Medicaid expansion demonstrated the appeal of popular policies despite hyper-partisan politics.

“Medicaid was actually the issue in Missouri that opened up a lot of people’s eyes about the state of our democracy initiative petition process, because you had a coalition in support of Medicaid that was on the right, the left, included business, included everybody,” says Richard von Glahn, the political director of Missouri Jobs with Justice, one of the Medicaid expansion ballot measure leaders. “We had politicians react to that, voting to overturn that vote and saying, ‘I’m proud to stand against the will of the constituents in my district,’” von Glahn says.

For the moment, Mississippi state lawmakers have succeeded in sliding direct democracy out of sight. After voters approved medical marijuana in 2020, the state supreme court ruled the following year that the state’s ballot initiative and referendum processes were unconstitutional, since the state constitution specifically refers to collecting signatures from five congressional districts, not the four that now exist since decennial reapportionment in 2000.

The legislature dealt with the ensuing fury by passing a medical marijuana law.

Tweaking the number of congressional districts would have been the easiest fix. But with a Medicaid expansion ballot question already certified for signature-gathering, they did nothing, and the measure died.

Fears about a possible abortion ballot measure, along with the scope of issues voters should decide and the threshold of required signatures, also continue to complicate the path back for initiatives and referendums.

Some state officials have resorted to comFEBRUARY 2024 THE AMERICAN PROSPECT 27

Abortion measures could be on the ballot in as many as a dozen states this year.

o you want the Missouri Constitution D to: Allow for dangerous, unregulated, and unrestricted abortions, from conception to live birth, without requiring a medical license or potentially being subject to medical malpractice; nullify longstanding Missouri law protecting the right to life, including but not limited to partial-birth abortion; allow for laws to be enacted regulating abortion procedures after Fetal Viability, while guaranteeing the right of any woman, including a minor, to end the life of their unborn child at any time …”

Last fall, a three-judge panel of the Missouri Court of Appeals Western District decided that Ashcroft’s summaries were “argumentative,” misrepresented the petition, and skewed the summaries to focus solely on abortion. The appeals court rewrote those sections to read: “ D o you want to amend the Missouri 28 PROSPECT.ORG FEBRUARY 2024

Mississippi state lawmakers have succeeded in sliding direct democracy out of sight.

Constitution to: Establish a right to make decisions about reproductive health care, including abortion and contraceptives, with any governmental interference of that right presumed invalid; remove Missouri’s ban on abortion; allow regulation of reproductive health care to improve or maintain the health of the patient …”

There has also been partisan interference with specific ballot campaign activities.

Rolling Stone has reported on anti-abortion activists in South Dakota harassing signature gatherers for a reproductive rights ballot measure, and some local officials are trying to ban signature-gathering in public places. Arizona, Florida, and Nevada have also used legal maneuvers and dirty tricks to try to keep abortion measures off the ballot. (Florida’s ploys didn’t work; in January, an abortion constitutional amendment qualified for the November ballot.)

Von Glahn says majority rule is under attack. “You ask most voters, you know, how

does an election get decided? The answer is quite simple. The sides with more votes win. That is how we understand politics to work, that is how politicians themselves get elected. They seem to think that there should be a different standard when the ideas that come to the ballot are proposed directly by citizens of their state.”

If Kansas and Kentucky voters’ rejection of curbs on abortion didn’t jolt Republican state legislators out of their unhealthy fixations on rigid social conservative priorities, the Ohio defeat certainly did. Unlike most states east of the Mississippi River, Ohio has had an initiative and referendum framework for more than a century. Voters have been restrained, passing 20 citizen-initiated constitutional amendments between 1913 and 2022, which suggests a more nuanced approach to the uses of direct democracy.

The state has passed laws allowing individual municipalities to decide whether or not to allow alcohol sales, three years before the state banned them and six years before the 18th Amendment completely banned alcohol nationwide. Voters have banned food taxes and granted home rule to counties. They’ve also pulled from conservative playbooks, imposing photo ID requirements for voting and a one man/one woman standard for marriage.

But last year, Republican Secretary of State Frank LaRose, in a quest to derail an abortion

GENE J. PUSK AR / AP PHOTO

plex, deceptive, or purely partisan ballot language to confuse or sway voters. Missouri Secretary of State Jay Ashcroft is charged with writing brief ballot measure summaries, and has invited heated criticism for his partisan language. Several of his summaries for “The Right to Reproductive Freedom Initiative,” which may go before voters in November, were strewn with partisan buzzwords. They read, in part:

and reproductive rights amendment, ignored that history, as well as the stories of trauma endured by women in Ohio and elsewhere who experienced pregnancy complications and could not get abortions in their states.

LaRose, who aspires to be Ohio’s next U.S. senator, put together a multipronged effort.

First, he pushed forward a ballot measure scheduled for the dog days of August that would require a 60 percent supermajority vote for a citizen-initiated constitutional amendment to pass, while increasing the signature-gathering threshold in all 88 counties instead of half of them, and eliminating the ten-day period in which ballot drives can collect more signatures if they don’t succeed the first time. This would have had the immediate effect of raising the threshold for passing the abortion rights ballot measure, scheduled for that November.

Ohio lawmakers, who had previously eliminated the expensive, low-turnout August elections, backtracked once they concluded that low turnout was just what they needed to pass the supermajority proposal. Instead, the final tally was 57 percent to 43 percent, a decisive defeat in the effort to take away voters’ rights.

LaRose also came up with ballot language for the amendment, designed to push religious and political hot buttons by using words like “unborn child,” instead of scientific terms like “fetus.” Ohio’s elected supreme court, with a 4-3 Republican majority, backed him up.

But the Ohio ballot measure organizers benefited from years of organizational efforts responding to attacks on reproductive freedom, right up to the Supreme Court’s Dobbs decision. The campaign had multigenerational appeal, from people who remembered when abortion was completely illegal to young women who had never known a time when abortion access did not exist. Democrats, Republicans, and independents supported the campaign, which also benefited from the quieter 2023 political season and Ohioans’ views on government involvement in personal medical decision-making that diverged wildly from their elected representatives’ preferences.

The November reproductive rights measure passed by 13 percentage points. Recreational marijuana, which was also on the ballot, also passed by decisive margins.

The two proposals’ popularity plus the August election reversal helped people connect the dots about the GOP strategy. “It was

not hard for voters in Ohio to say whoa, this isn’t passing the smell test,” says Chris Melody Fields Figueredo, executive director of the Ballot Initiative Strategy Center, a national progressive voting rights group.

“Ohio shows us that when you put issues on the ballot that are widely popular and people want to see action on, that is highly motivating, regardless of party affiliation.”

The passage of the November ballot initiative means that abortion remains legal in Ohio and that other reproductive rights, such as contraception access, have been enshrined into the state constitution. Those facts have not deterred two far-right Ohio Republicans, who signaled their intent to thwart enactment of the initiative. They have even proposed delegitimizing the state judiciary by giving the Ohio legislature the “exclusive authority” over implementing the provision on abortion and reproductive rights.

Republican House Speaker Jason Stephens has scoffed at the proposal. “This is ‘Schoolhouse Rock’ type stuff,” he told the Statehouse News Bureau, referring to the children’s television program that premiered in 1973. “We need to make sure we have the three branches of government.” Planned Parenthood Advocates of Ohio’s Lauren Blauvelt, chair of Ohioans for Reproductive Freedom, the ballot measure organizers, is more cautious, recalling that nearly a decade ago, lawmakers did not think a sixweek abortion ban would ever become law.

Expect state judges to frown on threats to judicial independence. “Ultimately, courts are going to be the arbiters of these claims, applying their state constitutions, so it’s a little hard to predict where they’ll come out,” says Clapman of the Brennan Center. “But I suspect they will be skeptical of efforts that are not consistent with the state constitution.”

Similarly, Ohio’s Republicans are eyeing changes to restrict the recreational marijuana measure, which was an initiative statute and not a constitutional amendment. Some of the ideas include redirecting tax revenue from marijuana sales to build jails and hire more police.

“They overstepped,” explains Molly Shack, co-executive director of the Ohio Organizing Collaborative. “They’re dealing with weird culture-war issues, trying to ban whatever their version of woke bogeyman is for the day.”

The past two years demonstrate that “expert” conclusions about voter motivations on controversial initiatives and refer-

endums are inexact, if not flat-out wrong.

In Arkansas, voters appear poised to preserve public-records access. Abortion is another matter entirely; carving out even limited reproductive rights would be an impressive feat. But only if these two campaigns can work through the legal clarifications required by the attorney general and gather the required signatures to make it onto the November ballot.

Arkansans tend to view statewide questions through hyperlocal rather than partisan lenses. Will they just put their heads down and get to the task of gathering mountains of verifiable signatures? And after that, will they make it plain to their elected representatives that they want to see different voting patterns? Or will they continue to support their own local representatives, who might just support the backsliding that undermines their own small-d democratic agency?

At least four states—Arizona, California, Missouri, and North Dakota—could place measures on the ballot that affect directdemocracy processes, such as signaturegathering geographies, supermajority requirements, and what state lawmakers can and cannot do once a ballot measure is approved by voters. Abortion measures could be on the ballot in as many as a dozen states this year.

“The reality is these elected officials who are circumventing the people that they’re supposed to represent in government and undermining their will and their voice is out of step of what democracy is supposed to be about,” says Fields, of the Ballot Initiative Strategy Center. “It’s supposed to be collaborative; our legislators are supposed to be our representatives, it’s supposed to be a partnership.”

What is clear is that if state lawmakers can’t get voters to strangle direct democracy, they will step up and do it themselves.

Ohio lawmakers have said as much, and Mississippi and Arkansas lawmakers have led the way. The amount of time spent trying to confuse people about the issues of the day is only increasing. For many elected representatives, the burgeoning disinformation and misinformation campaigns around tackling problems like public corruption, substandard health care, and low wages are less critical than their obsessions with controlling voters to maintain their grip on political power, through diversionary tactics designed to divide and conquer. n FEBRUARY 2024 THE AMERICAN PROSPECT 29

ppoint ice A o t Just Tried e v i t a v Conser

Can Progressive That depends on whether organizing and unity are a match for two incumbents in the pocket of business and one embittered ex-governor.

By Robert Kuttner

Chummy ll with Wa Street

Bungled Affordabl e Housing

30 PROSPECT.ORG FEBRUARY 2024

a number of goals early in his term, including tax-supported, universal pre-kindergarten. He cruised to re-election in 2017. But by the time he left office in 2021 after an impulsive and quixotic run for president, he had managed to alienate most of the city’s political class.

In the 2021 mayoral election, the WFP, the major progressive grassroots force in New York, endorsed their longtime ally, city comptroller Scott Stringer. But they rescinded the endorsement when Stringer also turned out to have a Me Too problem. (What is it with these New York pols?)

Unable to agree on a single candidate, the WFP awkwardly endorsed two backup contenders; both lost.

These catastrophic decisions have ushered in a team of inept leaders in Albany and Manhattan. New York voters sit well to the left of the country at large, but few bold reforms get done. What currently stands in the way is a governor in the pocket of business who doesn’t know how to play even rudimentary politics, a corrupt New York City mayor who nonetheless has the sup-

THREATS TO

DEMOCRACY port of major unions that depend on his decisions, and a bitter former governor bent on retribution.

New WFP leadership that’s as diverse as the progressive movement it commands

HANS PENNINK / AP PHOTO

Vetoed Ban on NonCompete Agreements

In the 20th century, New York was the home of great progressives like Gov. (and later President) Franklin D. Roosevelt, Mayor Fiorello La Guardia, and Sen. Robert F. Wagner. In the 21st century, New York progressives have put their faith in men who collapsed, either in sex scandals or in the dead weight of their own egos.

In 2006, New York elected a strongly progressive governor in Eliot Spitzer. But he had a weakness for paid sex assignations. He resigned in disgrace 15 months after his inaug uration. When the bullying A nd rew Cuomo took over in 2011, the new hope was his chief rival, attorney general Eric Schneiderman. His Achilles’ heel was even worse: physically abusing former girlfriends. He would resign in disgrace too. Eventually, so would Cuomo.

In 2013, the progressive Working Families Party (WFP) elected one of its own, Bill de Blasio, as New York City mayor, succeeding Michael Bloomberg. De Blasio first came to prominence as a WFP-endorsed candidate for city council in 2001, and the WFP managed his successful campaign for public advocate in 2009. De Blasio achieved

ting a o g e Scap ants r g i m Im

New York Revive?

LUIZ R AMPELOT TO / EUROPANEWSWIRE / PICTURE-ALLIANCE / DPA / AP IMAGES

could reverse the squandered opportunities of the past couple of decades. New York should be leading the way on progressive policy, but it often doesn’t represent the wishes of the majority of its citizens.

This sours the public on an unrepresentative democracy. Can the state rise again as a bellwether of the nation?

When the Working Families Party was founded in 1998, New York had a Republican governor in George Pataki, Republicans controlled the state Senate, and Rudy Giuliani was mayor of New York City. Many Democrats had simply accommodated to the neoliberal mood. The situation cried out for smarter progressive organizing.

The idea behind the party was to take advantage of New York state’s fusion law, which allows political parties to get their own ballot line and cross-endorse majorparty candidates. If the WFP could turn out activists to work on campaigns, the thinking went, Democratic candidates would value its endorsement, and some would move left. In other cases, the WFP could run progressives and defeat centrist or machine-backed candidates in Democratic primaries. It could even run candidates just on the Working Families line.

The key creators of the WFP were Dan Cantor, a longtime organizer who had worked with political scientist Joel Rogers to conceive and promote the idea; Steve Kest, then a leader of community organizing group ACORN; and several trade union leaders, including Bob Master of the Communications Workers of America. Cantor served as the party’s executive director and guiding strategist from its founding in 1998 until 2018, when the party passed the torch to Maurice Mitchell, a respected organizer with a well-earned national reputation as a coalition-builder.

Under New York law, a party needed 50,000 votes for governor to qualify for its own ballot line. In the 1998 election for governor, the fledgling WFP endorsed the Democratic candidate Peter Vallone, who was no progressive. He lost the general election,

Cuts t Educ o a Heal tion, th Libra and ries

but earned 51,325 votes as a WFP candidate, getting the party the coveted ballot line.

One of the party’s early successes was a neighborhood activist in Brooklyn named Letitia James. She was recruited by the party to run for New York City Council in 2001, losing narrowly. When she ran again in 2003, James ran as WFP-only and became the first third-party member of the council since 1977.

In 2007, Spitzer, the former attorney general, became governor. Though Spitzer resigned in March 2008, during the next two years, progressives achieved a number of long-sought reforms. They got rid of the gerrymandering that counted upstate prison inmates as part of the local population for purposes of inflating the number of conservative legislative districts. By 2010, under Spitzer’s successor, Lt. Gov. David Paterson, they repealed the last of the draconian Rockefeller-era drug laws—a bill sponsored by Schneiderman—passed a domestic worker bill of rights, and more tightly regulated wage theft.

They also enacted a progressive state income tax on the wealthy, with a top marginal rate of 10.3 percent on incomes over $1 million. The tax brought in $4 billion a year.

But this golden age was short-lived.

And the millionaire’s tax had a sunset date at the end of 2011. In 2011, the new governor, also a former attorney general, would kill the extension as one of his first actions, despite polls showing that three-quarters of New Yorkers supported it. Astoundingly, the new governor repeatedly analogized the repeal to Mario Cuomo’s decision to end capital punishment, as unpopular but the right thing to do.

The new governor was Mario’s son, Andrew.

The core political fact about Andrew Cuomo is that he is a brilliant strategist and dealmaker who walks over people whenever he needs to. Even his detractors are quick

Reduced Police t versigh OFEBRUARY 2024 THE AMERICAN PROSPECT 31

32 PROSPECT.ORG FEBRUARY 2024

a political novice—she had directed online organizing for Howard Dean in his 2004 presidential campaign—but she had never run for office herself.

A WFP leader, Karen Scharff of Citizen Action, leaked a story to The New York Times that Cuomo would likely face a challenge. The governor went ballistic, vowing to destroy the party and warning the unions that were early affiliates and funders of the WFP that there would be hell to pay. The mess that followed laid bare all the schisms in the WFP. The Times story about the WFP running Teachout ran on May 29. By June 1, the WFP was back to endorsing Cuomo. In the inter-

vening two days, intense pressure from the party’s union affiliates and second thoughts from its leaders caused the party to reverse course.

But the WFP made the mistake of thinking that Teachout would go away quietly.

She would instead contest Cuomo for the WFP nomination. At the party convention, she had the clear sympathy of the room, but the votes of several big unions won the endorsement for Cuomo. She continued the campaign, winning a respectable 34 percent of the vote in the Democratic primary.

Teachout’s policy director was a young law student named Lina Khan.

The governor did not deign to show up

SETH WENIG / AP PHOTO

to point out that “Andrew gets shit done,” whatever the personal fallout. He is thinking several steps ahead of everyone else in the room, but his relationships are purely transactional.

The same year Cuomo became governor in 2010, Republicans took back the state Senate. Democrats regained it in 2012, but four conservative Democrats (later expanded to eight), with Cuomo’s active behind-the-scenes encouragement, created a pro-Republican bloc called the Independent Democratic Conference (IDC), and voted for a Republican Senate president.

Cuomo had resented the pressure from the Senate Democratic leadership and liked the arrangement of a Democratic Assembly and a de facto Republican Senate, because it enabled him to play one chamber off the other and make the key legislative decisions himself.

Cuomo’s formula was to pursue big public-works projects (such as the rebuilding of decrepit LaGuardia Airport and a replacement for the aging Tappan Zee Bridge) and go leftish on social issues, but be a close ally of Wall Street and real estate interests. His early support for marriage equality won him scads of gay campaign money. He kept SEIU Local 1199, which represents hospital workers, on board by supporting increases in health and hospital spending. But with the help of the IDC, he pushed through cuts in New York’s corporate income tax to their lowest level in 50 years, and reduced taxes on yachts and private jets. During the pandemic, Cuomo passed a budget with $10 billion in spending cuts, rather than support higher taxes on the rich.

Cuomo’s successful use of raw political power for conservative policies put the WFP in a tactical bind. To keep its ballot line, the party must choose between running its own long-shot challenger and risking bad relations with the governor, or holding its nose and endorsing candidates it doesn’t like and denying the endorsement to its close allies.

These decisions tend to divide the party leadership and send mixed signals to the electorate.

In 2014, after extensive internal debate, the party decided to seek a challenger. With few plausible candidates available, the WFP contacted Zephyr Teachout, a law professor at Fordham University who was well known in progressive circles as a champion of antitrust, regulation of Wall Street, and campaign finance reform. Teachout was not

Andrew Cuomo’s formula was to go leftish on social issues, but be a close ally of Wall Street and real estate interests. to the WFP convention, sending as his proxy WFP favorite Bill de Blasio, who often locked horns with Cuomo but in this case reaped a nice IOU. But the WFP needed some kind of face-saving concession. That turned out to be a commitment from Cuomo on video that he would stop tacitly supporting Republicans. The promise in the initial video was too flimsy, so WFP leaders insisted that Cuomo record a second one. It came to be known as the “hostage video.”

Cuomo, still livid over the whole affair, later bragged that he had not delivered on his promise. The Independent Democratic Conference continued until 2018. This failure to keep his word on a public commitment, recorded on video no less, was not lost on the WFP either.

In the 2018 election, after more battles with Cuomo, the WFP decided to challenge him again. This time, they endorsed actress and activist Cynthia Nixon, who lost the Democratic primary by about the same margin as Teachout. The WFP then awkwardly withdrew its endorsement and backed Cuomo once again, in order to win enough votes to keep their ballot line. This time, under more pressure from Cuomo, the big unions disaffiliated from the WFP for keeps.

In the general election that year, the WFP finally destroyed the IDC by running primary challenges against its leaders, ousting six. But they paid a big price in the form of Cuomo’s retribution. Cuomo nearly succeeded in ending fusion voting in New York entirely and made it more difficult for third parties to qualify. And he used a variety of carrots and sticks to keep the big unions out of the WFP. In 2014, Cuomo put an obscure former Erie County clerk and one-term congresswoman

from Buffalo, Kathy Hochul, on the ticket, because he needed an upstate female as his running mate. When she was lieutenant governor, Cuomo had as little to do with her as possible and tried to dump her from the ticket twice. She busied herself by going to ribbon cuttings, parades, and other minor ceremonial events; photos abound of Hochul with local officials in obscure towns holding up an enlarged symbolic check. In 2018, Jumaane Williams, a rising WFP star who is now New York City public advocate, nearly ousted Hochul in the Democratic primary, winning 46.6 percent of the vote.

An even more intriguing 2018 statewide primary was for attorney general, replacing Eric Schneiderman. Teachout seemed well positioned to win off her name recognition from the gubernatorial primary.

But Tish James got into the race, and in a deal to raise the necessary campaign funds, took Cuomo’s endorsement while refusing to seek the endorsement of the WFP, which helped launch her career. James—aided by a quixotic candidacy from Rep. Sean Patrick Maloney, who bashed Teachout repeatedly on behalf of Wall Street—won the primary and became attorney general.

Despite the deal, James would not stay silent on Cuomo, however. In August 2021, she released a report finding credible evidence that Cuomo had sexually harassed at least 11 women while governor. After it looked like he might be indicted, numerous political leaders including Joe Biden called on him to step aside.

Cuomo’s currency was power. Once he was on the verge of losing power, people were happy to see him fall. An Albany veteran, who has a relatively cordial relationship with Cuomo, says, “When you abuse people for no purpose, at some point that becomes tiresome. When Bill Clinton got into his sex scandal, he had friends he could turn to. Andrew had zero goodwill.” Cuomo resigned on August 23, 2021.

When she suddenly found herself in the governor’s chair, Hochul tried to emulate Cuomo’s toughness, but kept making rookie errors. In the course of interviewing dozens of people for this piece, I did not find one who had a kind word for Hochul or considered her an effective governor. “She hasn’t learned anything about politics,” says one Albany insider, “since she was Erie County clerk.”

“She’s all corporate all the time, at least as right-wing as Andrew on anything having

to do with business interests but without anything like his smarts or muscle,” says another influential Democratic legislator.

“In this business, perception is power, and the accurate perception is that Hochul is weak.”

An early blunder was her failed effort to appoint a conservative chief judge of New York’s highest court. New York lost at least four Democratic-held seats in the U.S. House in 2022 because the Court of Appeals had rejected a redistricting map created by the legislature and turned to an expert panel that created new maps far friendlier to Republicans. The key vote on the 4-3 decision was Janet DiFiore, a former Republican chief judge appointed by Cuomo in 2015.

DiFiore and three other conservative judges had increasingly voted as a bloc.

According to a tally by the publication City & State in 2022, the four voted in tandem in 96 of 98 cases that came before the court.

Their decisions included rulings to prevent criminal defendants from presenting expert testimony supporting their innocence, bar workers from suing employers for workplace injuries, and make it harder for victims of police misconduct to sue for damages.

When DiFiore retired in 2022, Hochul had a chance to shift the high court.

Instead, she was persuaded by consultants to name Hector LaSalle, a conservative of Puerto Rican ancestry, on the premise of shoring up her popularity in the Hispanic community. As a lower-court judge, LaSalle had supported a viciously anti-union decision, Cablevision Systems Corp. v. Communications Workers of America District 1, which allowed a personal defamation lawsuit against two union officials to go forward, despite a state law that prevents union leaders from being held personally liable for the activities of their unions. The nomination of LaSalle infuriated the entire progressive community, including numerous younger Hispanics.

State Senate leaders warned Hochul that they would not vote to confirm LaSalle, but she went ahead with the nomination anyway. “I’d rather lose than surrender,” she told several. When the Senate Judiciary Committee refused to approve the nomination, Hochul demanded a vote of the full state Senate, which overwhelmingly defeated LaSalle 39-20.

Hochul then elevated progressive Judge Rowan Wilson to the chief judge post, and named another progressive, Caitlin HalFEBRUARY 2024 THE AMERICAN PROSPECT 33

ligan, to Wilson’s slot, creating a secure progressive 4-3 majority. She might have gotten credit for doing this in the first place.

Instead, she looked inept and weak.

“She thinks the hardball goes with the office,” says Teachout. It doesn’t. Hochul doesn’t bother to count heads or trade favors, skills at which Cuomo excelled. Albany veterans were stunned last year when Hochul approved a pay raise for legislators without getting anything in return.

Another fiasco was housing legislation.

New York City has long subsidized affordable housing through a state property tax credit called 421-a, which rewards developers for setting aside a fraction of units in market-rate buildings as supposedly affordable. In FY2022, the credit cost the city a staggering $1.77 billion in lost property tax revenue. Housing activists and progressives have long argued that 421-a is an absurdly expensive way to create affordable housing, and that it would be far more cost-effective to give the subsidy to community nonprofits and reform the property tax system.

In 2022 and 2023, progressives and the governor were unable to agree on the terms of an extension. Progressives had put a deal on the table in which an extension of a revised tax credit would be combined with expanded housing vouchers and “good cause” legislation to give tenants more due process in evictions. But the Real Estate Board of New York was very nervous about any eviction protections, and Hochul followed their advice to stonewall the entire idea. Negotiations with the legislative leadership never got serious, and the tax credit program lapsed.

Instead, Hochul went off on her own tangent. Last January, she unveiled a “Housing Compact,” which would impose new requirements on the suburbs to permit development of multifamily housing. This is a good idea in principle, though it does nothing to solve New York City’s shortage of affordable housing.

But Hochul, characteristically, hadn’t done her political homework. Her proposal was a total surprise to everyone. She had failed to clear the idea with suburban political leaders, and was not proposing to trade her proposal for something else that legislators wanted. Andrea Stewart-Cousins, the Democratic leader of the state Senate, who represents part of affluent Westchester County, opposed the bill. The plan led to a massive backlash and collapsed last 34 PROSPECT.ORG FEBRUARY 2024

April, leaving New York with no new housing program.

One recent instance of Hochul’s close alliance with Wall Street and her clumsiness at political bargaining involves legislation sponsored by Senate Commerce Committee chair Sean Ryan that would ban noncompete clauses in employment. These clauses, routinely part of employment contracts in New York for both low-wage workers and executives, undercut worker bargaining power and save corporations fortunes.

Several states have banned noncompete clauses, and the federal government via the FTC has been exploring a national ban as a possible antitrust violation. Business groups contend that these bans are a burden on corporations. But as Ryan points out, California has banned noncompetes since 1872, which has enabled tech entrepreneurs to launch new startups without being constrained by their current employers. “The noncompete law made Silicon Valley,” he says.

Hochul opposed Ryan’s bill. She initially wanted a carve-out that would have exempted executive jobs in finance. Her final counterproposal was a noncompete ban on workers making $250,000 or less.

This sounds not too bad, except that it would bind many tech entrepreneurs and deter startups.

New York’s major industries divided on Ryan’s bill. Tech supported it, as did the medical profession. Wall Street opposed it. The Business Council of New York was prepared to live with some version until the U.S. Chamber of Commerce launched an all-out campaign. Right before Christmas, negotiations broke down and Hochul vetoed the bill, handing Wall Street another victory.

While things went awry in Albany, in New York City the WFP had a lot to celebrate.

Bill de Blasio, its candidate and close ally, was elected mayor in the 2013 election. Two other WFP favorites won the other citywide offices, with Letitia James succeeding de Blasio as public advocate, and Scott Stringer as city comptroller. When the new city council convened in 2014, it included 12 of the 13 candidates explicitly endorsed by the WFP, and 20 of the council’s 51 members became dues-paying members of its progressive caucus, another WFP creation.

But de Blasio’s career fizzled, and the shift to ranked-choice voting in 2019, a

Mayor Bill de Blasio was the Working Families Party’s close ally, but the shift to ranked-choice voting in 2019 backfired on the party. long-sought goal of some reformers, backfired on the WFP when it came to the mayoralty. Had the old rules been in effect, providing a two-way runoff election if no candidate wins a primary outright, progressives in 2021 would have united behind a single candidate.

Initially, the 2021 race appeared to be a fight between Scott Stringer and Eric Adams, a centrist former police captain and Brooklyn borough president. After Stringer dropped out, there were three plausible anti-Adams contenders. WFP leaders favored Maya Wiley, a civil rights lawyer who had served as counsel to de Blasio and chair of the city’s Civilian Complaint Review Board. Wiley had the endorsements of AOC and Elizabeth Warren, among others.

To Wiley’s left, Dianne Morales, a director of social service organizations, hoped to galvanize Hispanics and young people.

She promised to cut the police budget in half. But Morales’s campaign collapsed in May when her campaign manager and senior political adviser both resigned and four women attempting to organize a staff union were fired. The WFP, badly split, had briefly endorsed both Wiley and Morales. It then withdrew the Morales endorsement.

The most centrist of the alternatives to Adams was Kathryn Garcia (she is not Hispanic; Garcia is the name of her former husband), who served as de Blasio’s sanitation commissioner and then as the city’s “food czar” during COVID. She had a strong reputation as a good public manager. The Times endorsed Garcia.

On primary day, Adams placed first with 30.7 percent, Wiley was second with 21.4, and Garcia third with 19.6. But when the ranked-choice votes were reallocated to reflect voters’ second, third, fourth, and

ZZ / DENNIS VAN TINE / STAR MAX / IPX

fifth choices, the final result was Adams, 50.4, and Garcia, 49.6, a win of less than 10,000 votes. Under the old system, Garcia would not have made the runoff, and most observers think that Wiley would have easily defeated Adams in a two-way.

Though a combination of bad luck and fragmentation cost progressives the mayoralty, the WFP did exceptionally well in

the two other citywide races, and also in electing the youngest, most progressive, and most diverse city council in living memory.

The problem has been that council’s difficulty in counteracting a mayor who has been both inept and corrupt.

Adams, only the second Black mayor in city history, had built a formidable coalition.

His base includes the still-potent Brooklyn machine, home of U.S. House Democratic Leader Hakeem Jeffries; African American voters throughout the city; real estate interests (Adams is close to developers); and outer-borough older whites concerned about crime, one of Adams’s signature issues.

But this year, Adams has stumbled in multiple respects. His approval rating, 61 percent in March 2022, is now at 28 percent, the lowest in the history of Quinnipiac polls of New York mayors. Though his promise to get tough on crime while reforming police excesses was central to his campaign, Adams has defaulted on both commitments, in ways that seem politically weird.

In mid-November, Adams ordered deep cuts in city spending, citing a $12 billion budget deficit out of a municipal budget of just over $110 billion, and blaming the imbalance substantially on the costs of the influx of migrants. Because of dwindling federal COVID aid, New York’s budget crunch is real. But the size of the deficit and the role of immigrants have been grossly exaggerated. As this piece was going to press, Adams admitted as much, and agreed to some token restorations of cuts. In response to my questions, his press spokesman, Charles Lutvak, in an email, attributed the brighter budget picture to better than expected revenues, but Adams had exaggerated the deficits all along.

In fact, according to Comptroller Brad Lander’s latest report, the city budget actually has a small surplus for FY2024, but a deficit for 2025, and a net deficit for the next two years of about $5.8 billion. The anticipated deficit doesn’t reach anything like $12 billion until FY2027, and a lot could happen between now and then. To get his large deficit numbers, Adams’s budget uses more pessimistic economic projections on economic growth, job creation, inflation, and interest rates.

Most of the deficit is the result of expiring federal COVID aid, not increased costs of housing migrants and refugees. According to Lander, “the Comptroller’s Office estimates that asylum seeker costs will total $465 million less than the City has budgeted this year, and $1.61 billion less than planned for FY 2025,” before rising in the out-years. Adams’s scapegoating of migrant arrivals has increased his unpopularity with immigrant communities. “I can’t explain his reasoning for the budget FEBRUARY 2024 THE AMERICAN PROSPECT 35

cuts,” says Crystal Hudson, who represents a Brooklyn district in the city council. “To blame the budget crisis on newly arrived people is just not honest.”

New York City mayors have the power to freeze spending. Adams is refusing to fund the city’s civilian police review board, one of the few such bodies with real teeth, and is cutting education and health outlays as well as libraries. At the same time, his cuts include a hiring freeze on new police officers, which will entail postponing five classes of new officers, bringing the total force to under 30,000 for the first time since the 1980s.

This drew opposition from conservatives as well as liberals, including the police union, which had been a strong Adams supporter. It strikes critics as bizarre that 36 PROSPECT.ORG FEBRUARY 2024

a former police captain whose campaign portrayed him as tough on crime is literally defunding the police.

In the 2022 campaign, one of the city’s two tabloids, the New York Post, was a big supporter of Adams. The Post has begun to desert him. The Post ran a scathing piece by a writer from the conservative Manhattan Institute. Nicole Gelinas excoriated Adams for ill-considered cuts that won’t even save serious money. “His cancellation of new police-academy classes would save less than three hundred million dollars next year. Reducing litter pickup will save … five million dollars. Reductions to library hours barely hit $20 million annually … he’s only scaring the people he needs to stay here and pay their taxes.”

Adams has exercised little if any lead-

ership in seeking new sources of income, rather than pushing for cuts in popular services. New York magazine reports that the city is owed $2 billion in uncollected fees and fines. The city’s Independent Budget Office calculates that hiring 50 auditors in the understaffed Department of Finance could bring the city $165 million a year in revenue—nearly half a billion over the next three years.

Comptroller Lander has proposed that the city could impose higher taxes on piedà-terre apartments that are kept vacant most of the time, exacerbating the housing shortage. The city could take money that goes to developers via tax breaks for building some affordable housing and get the housing built far more efficiently.

The city, says Lander, also needs a pro-

New York City faces a shortage of affordable housing, compounded by the arrival of 100,000 new migrants.

gressive income tax. The city has a personal income tax, but its top rate of 3.876 percent is reached at an income of only $50,000 for a single and $90,000 for a couple. That means a multimillionaire basically pays the same marginal rate as a working-class person. Lander proposes a higher tax bracket of 4.4 to 5 percent for the top 1 percent, about 40,000 households. Because of New York’s extreme income inequality, that modest shift would bring in nearly a billion dollars a year.

The political problem is that these and other progressive changes in city taxation require approval of the state, which is to say Gov. Hochul. The city has plenty of progressive legislators in Albany, but they don’t have the numbers to override a Hochul veto.

The strongly progressive city council has overcome Adams’s opposition on a few issues. The city faces a terrible shortage of affordable housing, compounded by the arrival of 100,000 new migrants. Adams’s solution to that is to arbitrarily limit how long a family may stay in a shelter. The council had a better idea. According to the mayor’s own report, it cost the city around $8,773 per month to house a family of two in the shelter system in 2022. A city housing voucher for a one-bedroom apartment to house the same family would cost a maximum of $2,387.

In July, the council passed an expansion of the rent voucher program over Adams’s veto. Given the budget freeze, it’s not clear how many families will benefit.

The week before Christmas, the city council overwhelmingly passed a ban on solitary confinement in city jails, including the notorious Rikers Island. The union representing prison guards has opposed the bill, but 38 members of the 51-member city council co-sponsored the measure. Inmates

held in solitary have committed suicide, and in 2019, one detainee, Layleen Polanco, died in solitary following an epileptic seizure.

Her family received a $5.9 million settlement from the city. New York is also under a federal order to give up control of Rikers, which Adams has also resisted. Adams has 30 days to decide whether to sign the solitary confinement bill. Progressives expect to pass the ban over his veto.

Meanwhile, Adams is now under investigation for what looks like a crude bribe.

He accepted campaign money, both as Brooklyn borough president and then as a candidate for mayor, from Turkish donors close to President Recep Tayyip Erdogan.

He then used his muscle to overrule Fire Department safety concerns over a rushed 35-story tower called the Turkevi Center, so that Turkey could open a palatial consulate there in time for Erdogan’s 2021 U.N. visit.

It remains to be seen whether Adams will be criminally indicted, or just how weakened he is politically. But it doesn’t look great when FBI agents stop you on the street, shove your security detail aside, and confiscate your iPad and phones.

Hochul’s term has more than two more years to run. Few people in Albany think she could win another term in 2026; she barely won her 2022 election with 53 percent of the vote, running eight points behind Biden’s 2020 New York win. One person who could beat Hochul handily, according to many observers, is Tish James. Meanwhile, resurgent progressives could likely defeat Adams in 2025 if they could agree on a candidate.

A wild card in any major New York election, incredibly, would be Andrew Cuomo, who now feels that resigning was a huge mistake. Cuomo has been dropping broad hints that he might run for New York City mayor in 2025, and even use that as a stepping stone back to governor in 2026.

Cuomo’s entire life is politics, a longtime ally points out. He doesn’t have hobbies or charities. Since stepping down, he has not offered his contacts and formidable talents at management of large government projects to potential corporate clients who’d pay Cuomo a small fortune as a consultant, broker, or lobbyist. At 66, he is conscious of his age and wants back in.

That calculus is complicated by the possibility of an Adams indictment and resignation. Should Adams step down, there would

be a special election. In a head-to-head between Cuomo and a single progressive unity candidate, Cuomo’s career might be ended once and for all. However, if Adams stays in office and Cuomo gets in, a threeway between Adams, Cuomo, and a progressive could break any number of ways.

At the WFP, meanwhile, there has been both a generational and an ethnic transition. The founders and initial leaders of the party were white male political intellectuals and organizers, now mostly in their sixties and seventies. Many of their early elected leaders were also white males. The new leadership is young, nonwhite, and heavily female, including its two state co-directors, Ana Maria Archila and Jasmine Gripper.

Archila headed a key and highly effective constituent group of the WFP, Make the Road New York. Gripper was director of the Alliance for Quality Education. “We want to make sure going into 2025 that we learn from the party’s mistakes and have the whole left united,” Gripper tells me.

“Polling shows that what people in New York want is the agenda we are working for: affordable housing and child care, decent jobs, transportation,” Archila adds. “The right’s answer is to make government small.

We have a mayor and a governor who want austerity policies and cuts in services, and blame migrants. There is a profound lack of sympathy for people who are down.”

There is no doubt that Adams is vulnerable, both personally and on the issues. But it’s a long way to 2025.

“There is a majority coalition of New Yorkers who voted for one of the progressives for mayor, or who voted for Adams but backed progressives for the city council and who also love Jumaane Williams and Tish James,” says Lander. “The opportunity for progressives is to demonstrate that a social democratic vision and a competent, wellrun municipal government to deliver the goods go together.”

This combination sounds like Lander himself, who is said to be taking soundings for a mayoral run. Despite the WFP’s determination to have unity on the left next time, he could be one of several candidates, including Williams, Wiley, and others. It’s an embarrassment of riches, set against Hochul, Adams, and Cuomo, a rich set of embarrassments. But to dislodge these incumbents of the past and present, and win a governing majority out of a popular majority, progressives must unify. n FEBRUARY 2024 THE AMERICAN PROSPECT 37

Election Deniers in the C-Suites

Workers can win union elections, but companies pull out all the stops to prevent them from obtaining a first contract.

Election day was jubilant at the REI retail store in the SoHo district of New York City in March 2022. Once the votes were counted, workers seeking to affiliate with the Retail, Wholesale and Department Store Union had shrugged off an aggressive union-busting campaign to earn a resounding 88-14 victory, forming the first union in REI’s history. The core group of organizers at the store, many of whom had been working on the drive for over two years, high-fived and hugged each other. Some threw union flyers in the air.

“Many of us live paycheck to paycheck because we’re working retail in New York City … and a union gives us a chance at a better future,” said Graham Gale, a bike and ski technician, who was one of the original union organizers and serves on the bargaining committee.

Everyone returned to their work stations

THREATS TO

DEMOCRACY in high spirits, expecting that the results promised better days to come.

But winning the election proved to be only the beginning of the road, not the end.

REI workers stood at the foot of a Sisyphean hill for American labor unions: securing a first contract.

The REI Union went through the usual steps to initiate the bargaining process.

38 PROSPECT.ORG FEBRUARY 2024

They filed an official request to bargain, formed a bargaining committee, and began drafting proposals for what the first contract could look like. They got significant feedback from employees: The main demands were primarily for higher wages and more reliable scheduling hours.

According to union members, they sent their initial proposals to management and received no response for weeks on end. REI wouldn’t respond to emails at first. The company then created scheduling conflicts to complicate meeting dates, and stalled bargaining at the table by failing to provide counterproposals. Rinse and repeat.

“It’s like bargaining with a wall,” said Gale. “They made it clear from the start that their intention was to make this as hard as possible for us.”

Once the meetings finally started, another pattern emerged. Though REI’s legal representatives physically convened at the bargaining table, they often seemed more engaged in obstruction than productive discussion, workers claim. REI would put forward proposals and the lawyers would interrogate minor details, only to object to the entire proposal later on. On several occasions, they would retreat into caucus for up to six hours straight in the middle of the session, in what seemed like an attempt to run out the clock for bargaining that day.

Because of how little progress the two parties had made, workers decided to take action. In the fall of 2022, they held a walkout. It was effective enough to urge REI to enter a side letter agreement where the work-

COURTESY REI UNION

By Luke Goldstein

Members of REI Union SoHo went on strike over pay cuts last fall. The union has yet to sign a first contract.

FEBRUARY 2024 THE AMERICAN PROSPECT 39

ers forfeited their right to collective action in exchange for a pledge by REI to better cooperate with the union in bargaining and provide pay raises to SoHo workers, already provided to non-union shops among other measures.

Some improvements took place, but workers say that management once again withdrew back into unresponsiveness, meetings dwindled, and it became difficult to get just one session every six weeks. In the meantime, REI gave workers at all of its stores two hours’ paid time off to vote in the 2022 midterm elections, except for those at stores engaged in bargaining a first contract. It was a notso-thinly veiled shot at the SoHo organizers.

Shortly before the side letter was set to expire in the spring of 2023, REI hired Morgan Lewis, the notorious anti-union law firm that Trader Joe’s retained for its protracted first-contract negotiations. The union would eventually decide not to renew the agreement.

This past fall, REI Union SoHo walked out again, highlighting how the side letter’s expiration rescinded the pay raises, which were given to workers at every other REI store.

The union also filed 80 unfair labor practice charges against REI for failure to bargain and retaliation, which the National Labor Relations Board is currently evaluating.

REI has vowed to fight these charges. In a statement after the charges were submitted, spokesperson Natalie Stotts said, “REI disagrees with the union’s contentions … We are committed and engaged in good-faith bargaining with stores that have chosen union representation and will continue to participate fully in the negotiating process.”

It’s been nearly two years since the election and 18 months of bargaining, and the union still does not have its first contract.

Union members say they have not even seen a full counterproposal from management.

These hurdles to a first contract at REI are becoming commonplace for unions across the country. The Starbucks union has gone two years without a contract at any of the more than 370 stores that have unionized. Amazon is approaching that milestone at its unionized Staten Island warehouse, and the same for union workers at Trader Joe’s. Those are just the highest-profile cases. There are hundreds of lesser-known examples of unions locked in what seems like a never-ending stalemate with employers, in a strange limbo between having an affiliated union and actually having the benefits and protections from it.

40 PROSPECT.ORG FEBRUARY 2024

This phenomenon has intensified over the past decade. On average, it’s taking longer for new unions to get a contract than ever before. In a recent study that reviewed a sampling of 226 NLRBcertified union elections from 2018, the researchers found that nearly two-thirds didn’t have a contract within one year, and 43 percent were still working without a contract after two years.

Another study by Bloomberg Law showed that the timeline for first contracts has extended even compared to the 2010s. Of the 391 contracts surveyed, the average time from election to first contract jumped from under 400 days in 20112013 to over 500 days in 2020-2022.

The widespread obstacles to first contracts stand in the way of a resurgent labor movement, which is fueling a historic uptick in organizing across the U.S. since the pandemic. Union elections resulted in an over 70 percent win rate for most of 2022. What’s more, the NLRB under the Biden administration has delivered tailwinds to labor through a number of recent decisions that make it easier to hold union elections, such as when a majority of workers submit union affiliation cards.

But while more unions are forming, all of that momentum is at risk.

Now that it’s harder for employers to block union elections outright, they are turning to a new playbook for union busting that highlights weaknesses in existing labor law.

“Lawyers and consultants who specialize in defeating unionization think of union organizing drives as a multistage war that employers can win essentially by attrition and delay,” said Catherine Fisk, a law professor specializing in labor rights at the University of California, Berkeley.

The blocking of union contracts highlights the imbalance between political rights and more limited economic rights under the American legal system. The ideals of liberal democracy in the political arena clash with a regime of authoritarian governance in the private sphere, where bosses can lord over workers like dictators.

In union election campaigns, these

authoritarian tendencies include captiveaudience meetings, which operate like compulsory versions of town halls used to dissuade worker organizing. These meetings can also extend to employers coercing employees to adopt their preferred political or religious agenda, and enlisting the workforce as foot soldiers for right-wing causes.

Management tries to block elections with as much of an iron fist as any despot, and refuses to accept the legitimacy of election results when they lose.

As one union organizer for the Communications Workers of America, Christopher Thomas, described companies’ motivations to me: “It’s all about control.”

It’s rarely framed this way, but the most

Graham Gale, a bike and ski technician at REI’s SoHo location, described contract negotiations as “like bargaining with a wall.”

COURTESY REI UNION

dangerous election deniers in our democracy are employers that can effectively undo union election wins by denying first contracts.

Nelson Lichtenstein, a labor historian at the University of California, Santa Barbara, explains that obstructing first-contract negotiations is not exactly new. From its inception, the Wagner Act had a blind spot about refusing to bargain, keeping its focus instead on securing union elections.

Especially after World War II, companies exploited this loophole to get away with union busting, including delaying first contracts. What constrained their ability to do so had more to do with the overall makeup of the American economy in the middle of

the 20th century, which carried far greater manufacturing density.

When auto plants unionized, for example, employers could realistically only hold out for so long before coming to the bargaining table. Their workforce tended to hold those jobs for most of their lives, strikes could inflict significant damage, and the losses of closing up shop were steep (though in some cases, factories did move to the South to resist unionization).

As U.S. firms outsourced manufacturing, a far higher percentage of the labor force now holds jobs in the retail and service sector.

These worksites are far harder to organize in sustained union campaigns because there are much higher turnover rates. That’s also a

challenge in keeping a union active once it’s formed. It’s also harder to exert pressure on employers through collective action, because the workforce is spread out across many stores—thousands in the case of Starbucks.

Workforce churn is an optimal arrangement for employers as an anti-union strategy to keep potential organizers in flux. Amazon even pays bonuses for workers to leave jobs after a short period. This would have seemed completely irrational to companies just a few decades ago. “Business schools like Harvard used to teach that you don’t want a lot of churn in the workplace, because it’s less productive.

But now they encourage it,” Lichtenstein said.

This shift in the economy to service work is the structural factor driving widespread contract delays for new unions. Some employers bank on cycles of turnover to undo the union or at least weaken momentum, as long as they can delay contracts long enough.

After companies recognize a union, management often resorts to a twofold strategy of containment and psychological warfare. It starts with retaliation, either by firing organizers, denying benefits or wage increases to non-union shops, or in some cases closing down union stores entirely, as Starbucks was recently found guilty of doing in Ithaca, New York.

“Once you build containers around unions, then they flush out what’s inside the containers by trying to make it seem like getting a contract is pointless and will never happen,” said an organizer at Workers United, the Starbucks workers’ union, which is affiliated with the Service Employees International Union.

While employers are forced to come to the bargaining table, that doesn’t preclude them from treating the negotiations as little more than kabuki theater, never providing counterproposals or arriving at tentative agreements to any sections.

Inside the union stores, the constant delay is a tactic to demoralize the workforce until enough turnover dilutes union support. Unionized workers also do not pay dues until getting a first contract, so the union itself has to run on fumes during protracted negotiations. After ginning up enough frustration, management within a year of the election can even begin urging workers to file for decertification petitions as well, rinsing their hands of the disruptive union once and for all. Meanwhile, management hopes to simultaneously send a warning message to other shops that their FEBRUARY 2024 THE AMERICAN PROSPECT 41

efforts to assert their collective-bargaining rights will be futile.

42 PROSPECT.ORG FEBRUARY 2024

The shift in the economy from manufacturing to service work is the structural factor driving contract delays for new unions, like at Amazon. wielded against the union. As part of the member-run business model, workers at individual stores receive a certain amount of profit-sharing based on membership sales they bring in that year. It’s equivalent to a small though generous bonus.

The same year that the SoHo store unionized, management decided to restructure how the profit-sharing was allocated. As a result, the SoHo store was cut out entirely from the payment system, workers there claim.

The side letter agreement the union signed in the fall of 2022 temporarily extended the Way Forward wage increases, but once the agreement fell apart, union members say the benefits were slashed again.

Perhaps the most emblematic alleged retaliation came ahead of the 2022 midterms, when REI denied SoHo and other unionized employees two hours’ paid time off on Election Day to go to the polls as part

of a democracy initiative. Respect for the democratic process at REI, as for many other liberal employers, did not apparently mean the same for collective-bargaining rights.

A similar challenge faces the newly formed union at the National Audubon Society, a nonprofit conservancy network of state and national chapters dedicated to preserving bird wildlife. The bargaining unit at Audubon, known as the Bird Union, is currently locked in one of the most extensive contract delays, at 22 months, and says it has made little progress.

According to Bird Union organizers, high turnover at Audubon because of dissatisfaction with job quality was one of the main reasons why the union came together in the first place. Organizing ramped up during a particularly tumultuous period in the nonprofit’s history. After the killing of George Floyd, Audubon’s CEO at the time, David Yarnold,

SETH WENIG / AP PHOTO

Like at many other workplaces, the union drive at REI sprouted during the pandemic.

As working conditions deteriorated, with what employees described as inadequate health protections to keep the staff safe, the campaign coalesced in response to understaffing and wages that weren’t keeping up with the rising cost of living.

As workers saw it, these conditions flew in the face of REI’s self-image as a conscientious, progressive company that is attentive to the needs of its workers. The outdoor equipment and apparel retailer is unusual in that it’s run as a cooperative by a dedicated cohort of outdoor enthusiast members, who carry a certain amount of sway over company decisions, such as voting for a board of directors. REI invests nearly 70 percent of its profits in the “outdoor community” and is known for staking out activist stances on social issues, from environmental to racial justice. Company statements often boast that it “puts purpose ahead of profits.”

In practice, however, that slogan and the company’s professed liberal values rang hollow for the employees who actually operate the stores, especially during the union drive.

In 2022, amid worker organizing, REI rolled out a new initiative called “The Way Forward” to win back disgruntled workers by “ensuring we’re creating a workplace where employees feel heard, feel supported and can thrive.” The company pledged to invest $50 million toward pay raises for hourly employees, and $92 million toward bonuses and employee retirement.

Once workers continued to unionize, however, the carrots from the Way Forward program turned into a stick. Those wage and benefit increases were cut from unionized stores like SoHo, according to union members and the unfair labor practice complaint. Today, eight REI stores are unionized; none have successfully negotiated a first contract.

In a statement, REI spokesperson Natalie Stotts told the Prospect, “The collective bargaining process, especially when negotiating a first contract, can be lengthy and the timeline of our negotiations is not atypical.

There have been many bargaining meetings over the past few months across our certified stores, and there are already dates scheduled into the future.”

The cooperative structure was also

issued a searching statement supporting Black Lives Matter and promising to make Audubon into an anti-racist institution.

“Our nation is in turmoil because our governments, our institutions (including Audubon), and private individuals haven’t done nearly enough to act on that fundamental truth,” his letter read.

It was somewhat unexpected for Audubon to make such an unequivocal proclamation on divisive political issues. Audubon is mostly known for operating narrowly on conservation in a bipartisan fashion, though it regularly issues reports raising alarms about climate change and environmental causes, and attends international events such as the COP summits.

Yarnold’s letter sparked tensions at the board and led to a larger controversy regarding changing the namesake of the nonprofit, a famous conservationist named John James

Audubon who owned slaves. Though the board voted not to change the name of the institution, the union goes by the Bird Union as a result.

Yarnold eventually stepped down from his position under pressure.

Amid this internal battle, the union drive with the Communications Workers of America (CWA) gained traction and highlighted alleged mistreatment of workers, especially instances where workers of color had been demeaned by managers or cut off from promotions. Despite its political stance on racial justice, management’s newfound progressive bent did not extend to recognizing the union.

This pattern can be seen across many of the employers blocking union contracts, from Starbucks to Amazon and REI. “The underlying factor in much of this wave of contract delays is that liberal culture is sympathetic to certain inequities such as gender and racial discrimination, but anti-unionism much less so,” said Lichtenstein.

Audubon created a diversity, equity, and inclusion (DEI) program to try to smooth over worker dissatisfaction. The Bird Union does not oppose DEI initiatives. In fact, they’re trying to ratify them through collective bargaining. They did, however, see the timing of the program’s inception as a cynical ploy to try to placate members before the election.

Management pledged to put $25 million toward the DEI initiative, which raised questions for workers once bargaining started about why the organization refused to meet their demands for raises. “We always hear from management that they’re broke and don’t have money for us but somehow then you can just find $25 million in the couch cushions?” said Soncey Kondrotis, a bargaining committee member with the Bird Union and an operations manager at Audubon’s Rowe Sanctuary in Nebraska.

Management begrudgingly accepted the union, but union members say the organization then went to war against them, under the leadership of new CEO Elizabeth Gray.

“They don’t take unionization as a wake-up call to improve the job qualities, instead they take it personally, are resentful about it, and it’s all ego-driven,” said Christopher Thom-

as, a representative from CWA who has been assisting the Bird Union with negotiations.

Once Audubon came to the bargaining table, management acted like the change in leadership was enough to turn over a new leaf with its unionized employees. Workers wanted raises based on a salary floor, instead of entirely on merit performance, and better parental leave policy, among other demands.

Just getting management to the table was agonizingly slow. But once they started showing up, Bird Union members say that management would frequently not read proposals beforehand, dragging out the process while failing to provide counters. It took six months just to agree to the preamble language for the contract and around five months for them to respond to proposals on financials, wages, and benefits.

In several instances, workers on the bargaining committee say the lead representative from the law firm hired by Audubon has taken to berating and insulting workers in negotiations, calling them “stupid” and “ineffectual.”

Maxine Griffin Somerville, chief people and culture officer at the National Audubon Society, said in a statement to the Prospect, “The National Audubon Society is fully committed to continue bargaining in good faith. The process has taken time, which is expected for negotiating first contracts, but we have reached tentative agreements on a number of issues so far and will continue to work towards a signed contract.”

Amid negotiations, Audubon resorted to alleged retaliation against the Bird Union by giving raises and benefits to non-union workers but withholding them from the Bird Union shops, according to an unfair labor practice complaint. For example, despite rejecting the union’s proposal to improve paid parental leave by offering six weeks instead of two, management took the policy and gave it to all the non-union shops.

“They’re doing something as despicable as weaponizing parental leave against workers,” said Kondrotis.

Griffin Somerville said in response that “we have prioritized improving benefits and compensation. Over the past year, we implemented a package of salary increases and significantly improved benefits, including increased parental leave. We have offered the same benefits and compensation increases to the Union as a part of a full and complete contract.”

So far, labor law has proven ill-equipped to counter this playbook, even though it FEBRUARY 2024 THE AMERICAN PROSPECT 43

explicitly flouts the National Labor Relations Act, which requires employers to bargain in good faith, at least in theory. The problem is that, as of now, there are limited mechanisms available for the NLRB to actually enforce the law.

For example, the NLRB can’t yet impose financial penalties for employers found guilty of bad-faith bargaining. For employers, that makes delay a seemingly better gamble than the risk of a union winning a contract and emboldening further labor activity at other stores.

However, the same employers are also making unilateral changes to worsen conditions. At Audubon, for example, the company made a few changes to the health care plan last summer, and didn’t inform the union about them until a week before the open enrollment period ended in the fall, union members claim. Management gave the union no opportunity to negotiate about those new policies.

Meanwhile, in a perverse twist of logic, Audubon and REI claim that they can’t extend wage increases and other benefits to union stores because of existing labor law, according to employees. The companies cite the “status quo period” amid ongoing bargaining, where management typically can’t make “unilateral changes” to contracts. Critics charge that the companies are using the National Labor Relations Act to justify a retaliation strategy.

Both the Bird Union and REI Union have filed unfair labor practice (ULP) charges based on the withholding of benefits, imposition of worsened policies like the Audubon health care plan, as well as refusal to bargain. The NLRB’s Manhattan office’s initial review of the Audubon ULP last October was that the complaint had merit; the NLRB has not yet taken action on the REI case.

Griffin Somerville, of the Audubon Society, stressed that “the National Labor Relations Board has not conducted a hearing nor made a decision on the unfair labor practice charges.”

Even when the NLRB takes up ULP charges, management will drag out the cases in courts through appeals. If the case goes all the way to the Supreme Court, they can be assured they’ll find sympathetic ears from the majority conservative justices, who’ve consistently ruled in favor of business groups over unions for the past 20 years.

The inability to enforce laws against a refusal to bargain poses a threat to the dem44 PROSPECT.ORG FEBRUARY 2024

ocratic rights citizens have in the workplace to engage in collective action. “[Employers] right now are challenging the very legitimacy of the NLRB by saying we don’t care what your rulings are because we don’t believe we should be unionized, so we’re just going to ignore the law,” said Kate Bronfenbrenner, the director of labor education research and a senior lecturer at Cornell University’s School of Industrial and Labor Relations.

In a few cases, it seems to be paying off.

According to the Workers United organizer, of the 371 Starbucks stores that have unionized over the past two years, 14 of them have filed decertification petitions, though the NLRB is throwing them out because of a prior ULP being heard against Starbucks for failure to bargain. At a number of stores, most of the original staff have left and the union is inactive. According to leaked memos, at a handful of stores decertification flyers have been distributed by the Koch network–funded National Right to Work Foundation, whose lawyers are represented on each petition.

Starbucks, of course, wrote the book on many of these new strategies to block contract negotiations, including withholding benefits under supposed status quo bargaining.

The company has been accused of refusing to let union stores get access to new digital payment screens that provided tip functions, which the union estimates took away roughly one or two dollars an hour from those workers’ salaries. It also means it’s harder for unionized stores to get outside workers to fill shifts when they’re shortstaffed, since workers know they can’t make as much money at that store.

Many employers have also modeled their bargaining strategy after Starbucks’s efforts, which workers describe as psychological warfare. It’s no surprise that there’s overlap, since many of these employers also share the same law firms to handle negotiations. Firms like Littler Mendelson and Morgan Lewis have devised aggressively anti-union playbooks to deal with first-contract negotiations.

Starbucks’s refusal to bargain went even deeper than just procedural delays at each store. After a series of victories in Buffalo, New York, Starbucks union drives took off like wildfire across the country. To streamline the process, the unions formed a national bargaining committee to draft contract pro-

posals. It made sense since the chain stores are run in a uniform manner, so naturally problems like staffing levels and unreliable scheduling are mostly the same across stores.

For this reason, the union suggested first negotiating a national framework agreement that would apply to each individual store, which could then separately bargain over the other issues unique to their stores.

Management refused to accept that, union members say. Instead, they wanted to send their army of well-paid lawyers to each of the nearly 400 stores to go through the same exact bargaining process over and over. That earns a fortune for the law firm but wastes a lot of time negotiating over identical issues.

What’s more, workers claim, management wouldn’t let any of the national bargaining committee members attend the sessions, because they insisted on in-person negotiations only. When the union would have a Zoom screen open in early bargaining sessions, the lawyers would either walk out or start shouting down union members when they started speaking. Denying members of the bargaining unit access to sessions via remote teleconference is becoming a common tactic; Trader Joe’s shut down negotiations for six months over this issue, according to Steven Greenhouse, writing in The New Republic.

The union filed ULPs based on the refusal to bargain, which is the main contention in the ongoing NLRB case against Starbucks. In the meantime, the union accepted management’s request to not have national bargaining members on Zoom, so they could at least for the time being continue bargaining.

“It makes this process mind-numbingly slow,” said Michelle Hejduk, a barista in Mesa, Arizona, who also sits on the bargaining committee.

The complaints have been compiled into a massive case against Starbucks currently under way in Seattle, a major test of whether labor law is up to the task of this new landscape for union busting. Starbucks did not respond to multiple requests for comment.

Constraints on the enforcement of the National Labor Relations Act have hobbled the NLRB’s ability to crack down on employers denying first contracts. Another impediment is the packing of courts with judges favorable to business interests.

In cases involving retaliation by management, the board is able to reinstate a worker fired by an employer for union organizing,

TOBY SCOT T / SIPA USA VIA AP

Starbucks was a pioneer of many of the new strategies to block contract negotiations, including withholding new benefits to unionized workers. along with awarding back pay. The same is true when an employer closes down a store explicitly because the workers there unionized, as Starbucks did in Ithaca. There have been dozens of separate decisions against Starbucks for these types of activities.

But for charges about refusal to bargain, it’s far more difficult, since the board cannot impose financial penalties to dissuade illegal behavior. Companies and their antiunion law firms are well aware of this limitation and are wielding it to their advantage.

Federal labor law, for much of the private sector, does not set any time period after which the two parties that can’t reach an agreement either enter arbitration or come before a federal mediator. In most provinces in Canada, that’s how the process is resolved after 90 days of unsuccessful bargaining, so that negotiations can’t just get blocked indefinitely.

In other words, the federal government in

the U.S. cannot step in to impose a contract on an employer as a remedy when it refuses to bargain. At least, that’s the interpretation of the NLRA that the board has historically taken, though some legal scholars dispute it. Catherine Fisk at UC Berkeley points out that it’s not explicitly written into the statute of the NLRA and the board could try to use the law more creatively.

“With how dire the situation is for first contracts and how flagrantly employers are breaking the law, it might be time to push beyond the traditional bounds,” Fisk said.

As Fisk explains, though, the shortcoming of this approach is that despite the legal merits, any ruling on first contracts could get knocked down in the courts and create a bad precedent.

Many labor leaders believe that the NLRB needs new tools added to its arsenal, in the form of the Protecting the Right to Organize Act. The PRO Act would impose heavy penal-

ties for a range of union-busting practices, as well as refusal to bargain, and would also set a deadline for negotiations after which a mediator would intervene.

But that legislative solution would actually require Congress to act, which it has proven increasingly unfit to do, especially when it comes to opposing business groups that have gone to the mat lobbying against the PRO Act. However, the NLRB’s general counsel, Jennifer Abruzzo, is pushing for another potential fix that would unshackle the board from self-imposed legal obstacles to address first-contract delays. In a number of briefs filed to the board, Abruzzo is actively pushing for the overturning of a board decision from the 1970s known as Ex-Cell-O. Overturning Ex-Cell-O would free up the board to pursue more robust remedies when an employer is found guilty of refusing to bargain. The board would be able to force employers to “make their employees whole again” by paying employees wages proportionate to what they would have received through collective bargaining. That would be calculated by looking at how much unionized workers make in the same sector.

“If refusal to bargain happens in an industry that has established unions like in hotels, you can pretty easily estimate what workers should be compensated but for their employer’s refusal to bargain,” Fisk explained.

The board has not yet ruled on one of the cases where Abruzzo is recommending overturning Ex-Cell-O, but that could be decided later this year.

In the meantime, unions are focused on trying to keep their workers engaged, despite the frustration about the delays.

Many unions such as Starbucks, REI, and the Bird Union have tried to counteract burnout by devoting additional meetings to keeping workers in the loop about contract updates.

“There’s no question keeping enthusiasm going is one of our biggest challenges at the moment,” said Thomas from CWA. Gale at REI, however, says they see resilience among workers. They aren’t sure that the employer’s tactics have had the intended effect of beating down employees. It could have the opposite impact.

“I see what the company is doing and I know they think it will be effective,” they said, “but they’re underestimating that we have no other choice.” n FEBRUARY 2024 THE AMERICAN PROSPECT 45

MORAL BANKRU The constitutional grant of a second chance for the destitute has become an enabler of reverse wealth redistribution. One wild case in Houston tells the story.

By Maureen Tkacik One afternoon in March 2021, Mike Van Deelen found a letter in his mailbox with no return address. Inside was a single typewritten page with an explosive allegation: The Houston-area judge presiding over a lawsuit he had filed against a company he accused of defrauding him was in a romantic relationship with a partner at the company’s law firm, and his case was just part of a corruption scheme whereby companies would hire the girlfriend’s law firm with the expectation that the judge would go easy on them—and by extension, hard on smalltime creditors like him.

The judge was not just any judge. It was David R. Jones, the Bankruptcy King of the Southwest, a legendary figure who presided over more corporate bankruptcies over the past decade than any other judge in America—well over a thousand in all— during which time bankruptcy became the biggest gravy train in the legal profession.

46 PROSPECT.ORG FEBRUARY 2024

At the time, Van Deelen mainly knew him as a guy who’d been a bigger jerk to him than any other judge he’d ever annoyed (and he’d annoyed quite a few).

Among Jones’s prolific caseload, which includes such household names as Neiman Marcus, JCPenney, and Chesapeake Energy, was the bankruptcy of an engineering firm called McDermott International, in whose stock Van Deelen, a longtime securities analyst and sometime math teacher who claimed membership in Mensa, owned 30,000 now-worthless shares. The company

THREATS TO

DEMOCRACY had issued nothing but rosy projections and effusive pronouncements until word slipped

out about three months before the bankruptcy filing that both the company and its bondholders had retained the dreaded phalanx of “restructuring advisers.” Van Deelen suspected that McDermott had filed for bankruptcy protection out of opportunism rather than insolvency, as a way for the C-suite to boost its own fortunes by wiping out investors and handing the company over to creditors, who would happily swap the debt for stock that was sure to pop once oil prices recovered.

When Michael Van Deelen feels he has been wronged, he likes to sue. He’s filed dozens of lawsuits against everyone from Little League officials to the Kansas state tax assessor, always representing himself pro se, and once appearing before a sympathetic appeals court judge named Neil Gorsuch.

But bankruptcy courts are not ordinary halls of justice. Bankruptcy brings all those other halls to a grinding halt, automati-

PTCY FEBRUARY 2024 THE AMERICAN PROSPECT 47

cally staying not only all attempts to collect on monies owed, but all litigation pending in any court of any stature. Once a plan of reorganization is approved by relevant creditors, it cannot be amended, barring proof of deliberate fraud. And so Van Deelen had been showing up to the Houston federal courthouse to try and convince Judge Jones there had been a mistake, that the bankruptcy had been filed in bad faith and ought to be halted pending an investigation, perhaps through the appointment of a bankruptcy examiner, to ensure that justice had been served.

But that is not how Judge Jones worked.

Instead, he questioned Van Deelen’s sanity and threatened to have him arrested.

The nation’s bankruptcy code, the constitutionally enshrined system by which Americans are theoretically afforded the chance to discharge unmanageable debts, has over the past decade or two quietly metamorphosed into a vast enabler of reverse wealth redistribution. Corporations have exploited the tremendous privileges of bankruptcy 48 PROSPECT.ORG FEBRUARY 2024

protection to , cram down unilateral wage and benefit cuts, eject lawsuits filed by customers and community members killed by toxic products and manufacturing processes, back out of funding pensions and zero out the savings accounts of workers they pressured into investing in company stock as a condition of keeping their jobs, settle wrongful death claims for less than a penny on the dollar, evade responsibility for cleaning up after oil spills or refinery explosions or poisoning groundwater with benzene, and, of course, discharge debt incurred in the process of defrauding vulnerable students into taking out tens of thousands of dollars in student loans they are practically barred by law from discharging in bankruptcy themselves.

Melissa Jacoby, a law professor whose forthcoming book Unjust Debts: How Our Bankruptcy System Makes America More Unequal synthesizes three decades of research into the system’s frustrating contradictions, helpfully summarizes the crux of the issue as bankruptcy’s “structural bias in favor of artificial persons”—i.e., corporations,

nonprofits, and constructed entities explicitly designed to shield rich and powerful owners from the consequences of their misdeeds.

While it’s difficult to say what Thomas Jefferson might have made of Citizens United or West Virginia v. EPA, it seems far less challenging to imagine that the Founders, for all their moral failings, would have been flabbergasted by modern bankruptcy courts. We can guess how they would react to granting the billionaire Sackler clan eternal legal immunity for siphoning out of the family opioid empire while leaning on their sales team to push product on pill mill doctors—without even forcing them to declare bankruptcy themselves.

When Federalists and Republicans alike agreed at the Constitutional Convention to authorize Congress to draft a “uniform bankruptcy code,” it was not some theoretical concept or throwaway line. Hamilton, Jefferson, and Madison were all personally insolvent and would die that way. The new nation was brutally underwater. As much as half the European population had arrived in the New World as indentured servants. After the panic

REUTERS

Judge David R. Jones has presided over more corporate bankruptcies over the past decade than any other judge in America.

THE NATION’S BANKRUPTCY CODE HAS QUIETLY METAMORPHOSED INTO A VAST ENABLER OF REVERSE WEALTH REDISTRIBUTION. of 1797, when Congress made its first attempt to draft a bankruptcy code, some of the richest men in America, most notably Revolutionary War funder Robert Morris, were sentenced to debtors’ prison, having blown their fortunes on land speculation schemes.

A 1779 usury law written by Madison capping interest rates at 5 percent reasoned in its preamble that “the high interest of money has been found in all countries where it has prevailed, to impoverish the people, and a great discouragement to trade and industry.” Coherent laws enabling the periodic discharge of unmanageable debts for “honest but unfortunate” men—and the sanctioning of dishonest men who posed as such—was a widely accepted cornerstone of a functional and civilized economy.

Alas, the Founders had trouble concurring on the definition of “honest,” and so until the 20th century many unfortunates discharged their debts by skipping town, albeit with a modicum of candor: Impoverished tenant farmers scrawled “GTT” on their cabin walls when they abandoned their debts, denoting “Gone To Texas.” But the idea that a large institution might “GTT” and leave its workers and creditors holding the bag with no recourse was still more than a century off.

It took until 1898 for Congress to pass a bankruptcy law that stuck, and another 40 years before the New Deal Congress, in conjunction with Joe Kennedy’s newly formed Securities and Exchange Commission, ironed out a protocol for extending bankruptcy protections to corporations.

The current derangement began with the Bankruptcy Reform Act of 1978, the first of many “reforms” designed to make bankruptcy protection easier for corporations and more punitive for individuals. Like most reforms of the 1970s to institutions

formed in the 1930s, it seems in hindsight like a deregulatory scheme to enrich the powerful at the expense of ordinary people. At the time, however, the bankruptcy system was too overwhelmed to work for large public companies, whose reorganizations were explicitly overseen by a courtappointed trustee and overburdened SEC. The 1970 bankruptcy of the Penn Central railroad took about six years. Well-intentioned observers wondered if the system wasn’t killing viable companies.

The Bankruptcy Reform Act eliminated the SEC’s bankruptcy oversight over public companies, made trustees optional, and formed dedicated bankruptcy courts in every federal courthouse that were permitted to pay “market rates” for attorneys. Perhaps most fatefully, the law allowed failing companies to file for protection in whichever district they deemed most accommodating, so long as they had some technical presence—a WeWork will suffice, though WeWork does not appear to even have one of those in the district surrounding the Newark bankruptcy court in which it sought Chapter 11 protection last November.

The idea behind this early embrace of global nomadism was supposedly that overburdened judges could share their caseloads with those in sleepier districts. What happened instead is that troubled companies made a beeline for the friendliest judges.

New York’s Burton Lif land, appointed in 1980, was the first celebrity bankruptcy judge, overseeing eight of the 43 major large public company bankruptcies approved in the decade following the Bankruptcy Reform Act, according to a book by the law professor Lynn LoPucki. A statistician calculated that the odds Lifland would receive such a vastly disproportionate number of large cases under the random assignment system in place at the time were just under 1 in 1,000.

Fatefully, the 1982 bankruptcy of the Johns Manville asbestos manufacturer, which had been knowingly poisoning workers and covering up the evidence for a halfcentury by that point, landed in Lifland’s courtroom. Unlike an Illinois judge who had dismissed the bankruptcy of a healthy but lawsuit-beleaguered asbestos manufacturer in his own district a year earlier, Lifland embraced the impossible challenge of using his powers to force a settlement of not simply the 16,000 toxification lawsuits the Colorado company faced at the time, but the incalculable number of future suits likely to be filed.

The bankruptcy ultimately concluded with the inception of a $2.5 billion trust to finance settlements with cancer-stricken victims. In the early years, the trust paid out 100 percent of the plaintiffs’ claims; today, that number has dwindled to 5.1 percent.

Lifland’s bold application of his new powers would inspire the nation’s peddlers of hazardous goods and services, but he didn’t remain their hero for long. As LoPucki tells it in his book Courting Failure, Lifland’s reign atop the bankruptcy world abruptly ended after he reluctantly acceded to union demands and appointed a trustee in the 1989 bankruptcy of Eastern Airlines. Delaware bankruptcy judge Helen Balick took the reins by successfully courting the bankruptcy of Continental Airlines—which happened to share an owner with Eastern—whereupon she and her Wilmington colleague Peter Walsh systematically built a bankruptcy machine so formidable it handled 13 of the 15 major public company filings in 1996.

Her empire too would fall when the New York courts began to recapture some of their 1980s magic by nabbing what everyone predicted would be the first bankruptcy to generate $1 billion in fees, the 2001 Chapter 11 filing of Enron. This roused the competitive fires of another bankruptcy hotbed, deep in the heart of Texas.

The twin crashes of oil and real estate that followed the savings-and-loan debacle and the Gulf War caused many ambitious young Houstonians to gravitate to bankruptcy law in the early 1990s. Marvin Isgur, an MBA who had managed a Houston rental property empire on behalf of his uncle in the 1980s, was one; he later hired a former engineer named David R. Jones.

During the Enron bankruptcy, Jones represented Andy Fastow’s successor as chief financial officer, Jeffrey McMahon. The case brought Lone Star litigators to New York to see how corporate bankruptcy was handled in the big leagues. At some point after Isgur was nominated to the federal bench in 2004, he and Jones began to talk about how the Southern District of Texas might compete with Delaware and New York for top-shelf cases. In 2011, Jones took a judgeship—and accompanying 85 percent pay cut—without even consulting his wife. The marriage soon ended, leaving the childless Jones, who later admitted he’d “screwed up two marriages pursuing the practice of law because I loved this a whole lot more than I did my family,” FEBRUARY 2024 THE AMERICAN PROSPECT 49

to pour his time into the pursuit of a top-tier bankruptcy court.

Jones was the right guy at the right time.

The massive Chicago law firm Kirkland & Ellis had appointed a new chairman, Jeff Hammes, in 2009, who had a soft spot in his heart for both private equity, which would become the leading source of bankruptcy work in the decade that followed, and Texas, where he oversaw a massive expansion of the firm’s presence. Hammes poached top partners from Kirkland’s Wall Street competitors and encouraged his attorneys to aggressively court new business among middle-market private equity firms that, in the characterization of one partner, “no one has ever heard of.”

Over the next decade, Kirkland took on more than 450 private equity firms as clients, in part by pioneering a controversial practice by which those firms would agree to pay the legal fees of the banks that underwrote private equity buyouts, so long as they designated Kirkland & Ellis to do the job.

(Other law firms engaged in this practice, but Kirkland was more famous for it.)

In early 2014, during which crude oil prices hovered around $100 a barrel for most of the year, Kirkland dispatched a Scotlandborn partner poached from another elite law firm named Andy Calder to launch the firm’s inaugural Houston office. But oil prices began to crash in late 2014, bottoming out at $26 by early 2016, the same year Isgur and Jones debuted a new court-within-a-court called the “complex case panel” devoted to bankruptcies involving debts in excess of $200 million. Designed in concert with a board of advisers comprising restructuring specialists at more than a dozen of the most prestigious law firms, the complex case panel had a unique selling point: Only Isgur and Jones were allowed to preside over it, so law firms knew what they were getting. “I really had this idea that I wanted the courts to reflect all of the things I had seen that were good in courts all over the country,” Jones said in 2022. “But it really took a long time to sort of bring a consensus toward the view that I was trying to push forward. Predictability was one of those things I was really focused on, and I needed for [the court] to agree that this complex docket shouldn’t be every single judge in the district.”

Jones and Isgur were inadvertently assisted by Christopher Sontchi, a Delaware bankruptcy judge assigned in 2015 to the case of a Kirkland client called Sam50 PROSPECT.ORG FEBRUARY 2024

son Resources, an Oklahoma oil driller acquired less than four years earlier by the private equity giant KKR in a transaction that loaded the company with $4 billion in debt. In its first-day motions, Samson said it had worked out a deal to allow its biggest lenders to assume control of the company in exchange for a debt reduction it could only obtain if the reorganization was completed within three months. The plan called for wiping out billions of dollars in debt owed to unsecured creditors, many of them families who had allowed the company to frack on their land over the years in exchange for royalty payments they had never received.

In the first hearing of the case, Judge Sontchi rebuked Samson’s attorneys: “You’re saying you are going to kill the company if I don’t give you what you want …

This was not the way to start our relationship.” The bankruptcy would drag on another two years, during which Sontchi would repeatedly (and sometimes using ) express exasperation with Kirkland and Samson’s impatient new ownership, for trampling over small-time creditors and making a mockery of good faith and due process. One family slated to get wiped out under the initial plan ultimately received $17.5 million.

Kirkland would not file another bankruptcy in Delaware for .

By contrast, the complex case panel worked speedily. In May 2016, Kirkland filed for bankruptcy protection on behalf of another midsized Oklahoma fracking client called SandRidge Energy, founded by Tom L. Ward, co-founder of fracking giant Chesapeake Energy. Jones got the case.

SandRidge emerged five months later to a rapidly recovering energy market debt-free, after zeroing out all its existing shareholders and many small-time landowners, using similar nonpayment practices Samson had used. Additionally, Jones discharged lawsuits filed by a school district that claimed SandRidge had stiffed it on taxes, and shareholders who alleged that SandRidge didn’t actually appear to be insolvent. All told, Kirkland filed five bankruptcies in Houston in 2016, and that year Calder was the highest-paid lawyer in the state.

In the first two years of the complex case panel, Jones and Isgur presided over an impressive of all large public company bankruptcies filed in America. In December 2018, Isgur presided over a reorganization of the oil exploration firm Parker Drilling in just 22 days. In 2020, the two judges fin-

THE COMPLEX CASE PANEL HAD A UNIQUE SELLING POINT: ONLY ISGUR AND JONES WERE ALLOWED TO PRESIDE OVER IT, SO LAW FIRMS KNEW WHAT THEY WERE GETTING. ished eight large complex bankruptcies in fewer than 45 days, according to a database LoPucki kept until the end of 2022 on large public company Chapter 11 filings.

The panel succeeded despite (or maybe because of) the loss of Jones’s clerk Liz Freeman, who had followed him from their old firm Porter Hedges. Freeman had taken a partnership at Jackson Walker, a centuryold Texas law firm where Isgur’s old clerk Matt Cavenaugh, a theater major turned lawyer who had worked as Kirkland & Ellis’s local counsel on the bankruptcy of Ultra Petroleum, had made a name for himself. In hindsight, Freeman’s career arc seemed full of anomalies. “No one works as a clerk for six years,” one attorney pointed out. And she’d actually been a partner before she’d been a clerk, an almost unthinkable transition.

Cavenaugh and Freeman established Jackson Walker as the preferred local counsel of the Houston bankruptcy business, as well as a de facto outgrowth of Kirkland & Ellis.

What was not apparent to observers who read the gushing trade publication coverage of the unstoppable new power couple (JW and Kirkland) was that Freeman was one half of a different power couple, with Judge Jones, who despite describing himself in public appearances as a bachelor who lived alone with three rescue dogs, actually shared two million-dollar homes with the attorney. It’s not clear when Freeman and Jones, who was still married when he was nominated to the bench, became an item, but real estate records show they bought a house together in 2016, the year the complex case panel launched.

Jackson Walker and Kirkland & Ellis together represented debtors in at least 46 bankruptcies in the complex case panel since 2018, including 26 cases presided over by

ABC 13 NEWS, HOUSTON

Michael Van Deelen, a longtime securities analyst and serial litigant, met his match in Judge Jones.

Judge Jones personally while Freeman was a partner at the firm. This conflict of interest is actually worse than it sounds, because bankruptcy judges must approve the legal fees charged by every attorney working for the estate, and it is their legal obligation to mind the budgets of the insolvent institutions that appeal to them for protection. But Jones regularly approved the four-figure hourly rates billed by Kirkland’s top-shelf lawyers, and Freeman’s $750-an-hour fees.

Though he would later claim the two had agreed she would never actually appear in his court, she managed to make more than $1 million working on some 16 cases over which he presided during her four years at Jackson Walker; the firm made more than $12 million on those cases. Kirkland, for its part, billed an astonishing $162 million in bankruptcy cases assigned to Judge Jones in which it had enlisted Jackson Walker. And Jones approved every last dollar.

The evening before Michael Van Deelen was scheduled to testify in his lawsuit against McDermott, he received an amended bankruptcy plan on his doorstep, about which he grumbled the following day in court.

“I would like to again enter my objection

to having to respond to a plan, amended plan and other documents, several hundred pages I got last night at five o’clock,” he told Judge Jones.

“You’re a shareholder, correct?” Jones asked him.

“Not for long, but right now yes,” Van Deelen replied.

“Alright, and so the treatment of your interest has always been the same, correct? … You were not getting any distribution under the first plan. You’re not getting any distribution under the second plan, correct?

“I don’t know. I haven’t read the new plan, that’s the whole point.”

“So under the first plan they got nothing, correct? You did read that one?”

“That’s correct.”

“So it can’t get any worse, right?”

“I don’t know, judge, if it will get any worse or not.”

“Well how can it get worse than to get nothing for something that you had?”

“They’re going to come out to my house and shoot me, okay? Is that worse? This guy threatened me a minute ago.”

According to a legal brief Van Deelen filed shortly after the hearing, “this guy” was a $2,045-an-hour Kirkland partner named

Joshua Sussberg, who had been seated across the aisle from him throughout the hearing. According to Van Deelen’s filing, Sussberg had grown “more and more agitated” as the hearing dragged on, until finally the attorney, “without any cue,” loudly told him: “You are disgusting.”

After the hearing, Van Deelen asked Sussberg what his name was. Instead of answering, according to Van Deelen’s account, Sussberg told him again that he was “disgusting” and also “a fool.” Sussberg walked slowly away, only to suddenly turn back “rushing back down the hall” to “angrily charge” Van Deelen. Shaken, Van Deelen asked security guards if they had surveillance footage of the encounter and was told that they didn’t. That night, he scoured the Kirkland website in search of the attorney he alleges bullied him, found Sussberg’s photo, and emailed him asking him to confirm that he was, indeed, the attorney who had confronted him. (Sussberg did not respond to a request for comment.)

Sussberg responded with force, producing an affidavit claiming Van Deelen had called him a “pasty white fuck” and pledged to “have [his] way” with Sussberg’s wife, which Isgur’s old clerk Cavenaugh then attached to FEBRUARY 2024 THE AMERICAN PROSPECT 51

52 PROSPECT.ORG FEBRUARY 2024

Prison health care company Corizon is one of several that has attempted the “Texas Two-Step” bankruptcy maneuver. years earlier. Chesapeake’s plan called for negotiating a global settlement to all claims.

Dozens of small-time landowners filed objections, arguing they would be lucky to get pennies on the dollar, and the Fifth Circuit would ultimately throw out the settlement (blessed by Jones) as improper, remanding certain cases back to lower courts. But the complex case panel plowed ahead, handling an astonishing 48 percent of all major corporate bankruptcies filed in 2020.

The court, meanwhile, finally got around to scheduling a hearing for Van Deelen’s motion to recuse Judge Jones in February 2021, when Van Deelen received the letter he thought would change everything, revealing Jones’s relationship with Freeman.

Though Freeman had billed the McDermott estate in excess of $100,000 for her work on the bankruptcy, Van Deelen had never crossed paths with her. But the letter claimed that Freeman was not the only link between Jones and Jackson Walker; Isgur’s old clerk Matthew Cavenaugh, who had filed the original motion for Jones to sanction Van Deelen, was also a critical part of the puzzle, though it didn’t explain exactly how.

“Elizabeth Freeman is the strategic link between JW attorneys (specifically Matthew Cavenaugh) and lawsuits received by Judge David Jones,” the letter claimed. “The romantic relationship between Judge Jones and Elizabeth Freeman is publicly known

and because of that, the largest corporations and clients willingly choose to work with JW lawyers knowing they will likely have the court and judge in their favor.”

Van Deelen did not waste time, immediately composing an addendum to his motion to recuse that included the letter as an appendix, and emailing Cavenaugh to inquire about its veracity. But Cavenaugh was quicker, filing a preemptive motion to seal all communications past and future with Van Deelen, which Jones used to seal Van Deelen’s amended recusal motion as soon as he filed it.

Isgur presided over the hearing, denying the motion to recuse on the basis that “anonymous pieces of mail aren’t admissible in federal court,” and Jones ultimately dismissed Van Deelen’s case seven months later in a withering 13-page ruling threatening to “revisit the issue of compensatory and coercive sanctions necessary to protect the sanctity of the Court’s orders, the bankruptcy process, and the rule of law” in the event Van Deelen elected to continue “the current pattern of behavior.”

But rumors about the affair and the pro se creditor who had almost blown the lid off the whole thing began to swirl.

As busy as 2020 was for Jones and Kirkland, the pandemic was far leaner for the bankruptcy system than anyone had predicted at the outset. Cheap money was abundant;

TRIPPLAAR KRISTOFFER / SIPA USA VIA AP

an emergency motion asking Jones to hold Van Deelen in contempt. Van Deelen called the allegation ludicrous, but Cavenaugh also included in the filing a recording he had uploaded to YouTube of the aforementioned hearing, onto which someone had overlaid subtitles purportedly transcribing the dialogue. According to the subtitles, Van Deelen concluded his testimony by calling Judge Jones a “son of a bitch.” The recording of that part is almost inaudible; Van Deelen denied saying it, though one can faintly hear the relevant consonant sounds of someone whispering something along the lines of “son of a bitch” under their breath.

Jones sided with the lawyers in an order issued the following week, stating that the phrase “son of a bitch” was discernible, an assertion he used to discredit Van Deelen as a perjurer of questionable “mental stability,” deserving of significant sanctions. The order banned Van Deelen from returning to the courtroom, requested both the U.S. Marshals office and the assistant U.S. attorney launch investigations into his conduct, and issued a permanent injunction prohibiting Van Deelen from making contact with Sussberg lest he face arrest.

Incredulous, Van Deelen filed a response asking for a hearing, and after that request was denied, asking the Fifth Circuit Court of Appeals, which oversees Texas federal courts, for a writ of mandamus—essentially an imposition upon Judge Jones to do his job—and a separate motion the following month in the bankruptcy court, calling on Jones to recuse himself from his case on the basis that he had “shredded Plaintiff’s constitutional rights” out of apparent “personal animosity.” Van Deelen also filed a defamation case against Bloomberg for its coverage of his conflict with Jones and the legal team, a suit filed in Alabama for reasons that remain unclear (perhaps because Alabama lacks an anti-SLAPP statute).

By this point, as the pandemic hit, Jones’s courtroom was in the throes of an unprecedented onslaught of insolvencies: oil and gas companies that were its bread and butter, but also private equity–gutted retailers like Neiman Marcus and JCPenney. Even Chesapeake Energy was preparing a filing to contend with more than $9 billion in debt, along with hundreds of millions more in claims stemming from litigation related to its practice of unilaterally slashing legally mandated royalty payments to landowners by as much as 90 percent when it faced a cash crunch

rampantly insolvent companies like Carvana and Uber raised billions of dollars in cash at rock-bottom rates, and consumer bankruptcies screeched to a halt. Luckily for the Chapter 11-industrial complex, the headline-commanding Sackler family and its opioid manufacturer Purdue Pharma was showcasing one of the bankruptcy code’s theretofore less appreciated clauses.

Section 524(g) was added in 1994 to codify Judge Lif land’s aforementioned asbestos trust fund, which had indemnified certain insurance companies against liability for future victims in exchange for their participation in the fund. Purdue’s lawyers had deployed Manville’s precedent to reason that opioid litigation could be dealt with the same way, with the bankruptcy judge immunizing hundreds of Sackler family members, advisers, friends, and companies and trusts under their control from liability for their roles perpetuating the opioid crisis, in exchange for a substantial monetary contribution to a global opioid settlement.

It was a ballsy move, and it opened the floodgates to an even more audacious twist when Johnson & Johnson, whose talc-based baby powder had contained toxic amounts of asbestos until 2020, decided to transfer its baby powder business along with all its asbestos cases into a new subsidiary it called LTL, then fully divest LTL and file for bankruptcy protection. The move had been quietly perfected by Kirkland archrival Jones Day, which had used a special Texas state statute enabling so-called “divisional mergers” to divest and bankrupt asbestos subsidiaries from Georgia-Pacific, Trane Technologies, and the construction firm Saint-Gobain. Divisional merger mania spread, with Kirkland & Ellis adapting the so-called “Texas Two-Step” to a 3M unit that had been sued by thousands of Ameri-

“ELIZABETH FREEMAN IS THE STRATEGIC LINK BETWEEN JW ATTORNEYS AND LAWSUITS RECEIVED

BY JUDGE JONES,” THE LETTER CLAIMED.

can soldiers who’d lost hearing after relying on its defective earplugs during combat missions, along with a Mexican KimberlyClark subsidiary that had sold hand sanitizer throughout the pandemic.

This was something LoPucki, the preeminent expert on corporate bankruptcy abuse, had attempted to warn the legal community about. Decades earlier, LoPucki had written a 1996 law review article that used game theory to that deregulation, cultural shifts, and the cheapening costs of data storage would soon bring about the “death of liability” for corporations savvy enough to move their assets out of the reach of money judgments.

LoPucki would later grow especially leery of Jones and Isgur’s court, deconstructing Isgur’s record-setting one-day prepackaged bankruptcy proceeding of the private equity–controlled department store chain Belk, whose f limsy reorganization plan barely reduced the chain’s interest expenses and left the chain under the control of the same private equity firm whose looting had bankrupted it in the first place. (Credit rating analysts seem to regard another Belk default as inevitable.) LoPucki described the proceeding as the natural “culmination of four decades of competition among the bankruptcy courts for big cases,” in which judges had proven willing to “routinely bend and break the law” to attract big “case placers,” just as the anonymous letter had accused Judge Jones and Jackson Walker of doing. LoPucki titled his analysis “Chapter 11’s Descent Into Lawlessness.”

He had no idea.

Corizon Health Care employs physicians, nurses, and other health care professionals to administer primary care in state prisons and county jails. For the past decade or so, the company has been passed around from one middle-market private equity firm to another, and nearly 500 lawsuits from inmates and ex-inmates and dead inmates’ family members suggest that it tended to drastically understaff facilities, leading to often fatal acts of negligence.

In late 2021, a health care investor named Isaac Lefkowitz offered to take the whole company under the auspices of something called Geneva Consulting, in turn a wholly owned subsidiary of the nursing home chain Genesis HealthCare. Lefkowitz fired the company’s CEO, and hired a Wall Street veteran (and failed New York mayoral can-

didate) named Sara Tirschwell, who had impeccable elite bankruptcy credentials.

She’d spent a decade at the hedge fund Davidson Kempner, once even lobbying the Senate to set up an asbestos trust fund, and her campaign disclosure statements are the proverbial “who’s who” of the elite restructuring world. But after spending months toiling on her abortive mayoral campaign, she may have needed the money: She told the New York City Campaign Finance Board in February 2022 that she might have to file for bankruptcy, according to a document obtained by Business Insider.

With the assistance of Tirschwell and a Miami law firm she retained under the auspices of something called “Project Orange,” Corizon moved to Texas and split in two. YesCare would be the “new” company that would “buy” Corizon’s contracts (and $19.9 million cash) for $100, and the “old” Corizon would be renamed Tehum Care Services, which would emerge from the divorce with its vendor and employment contracts, and hundreds of outstanding wrongful death, negligence, and fraud claims. Meanwhile, Lef kowitz opened a new account at Signature Bank for Corizon, which according to a lawsuit he used to siphon some $40 million out of the company, unbeknownst to its management.

He initially earmarked $15 million for a vehicle that was supposed to provide the debtor-in-possession financing to Tehum when it filed for bankruptcy protection.

In February 2023, a Boone County, Missouri, judge gave Tehum/Corizon 24 hours to come up with a proposal for repaying a hospital system it owed more than $12 million. Corizon responded by maneuvering to extend its deadline by a weekend, then filed for Chapter 11 protection, staying the lawsuit and forcing the hospital system to come to the table alongside Corizon’s hundreds of other angry creditors, who together were owed hundreds of millions of dollars. A team of civil rights lawyers who represented inmates who’d been injured, diseased, and deprived of even medieval-caliber medical care by Corizon began to sniff around, discovering that Lefkowitz had been involved in dozens of corporate bankruptcies, and had been sued by a close friend’s son for allegedly embezzling millions of dollars out of his ailing father’s real estate portfolio.

More relevantly, Lefkowitz had been sued by the CEO he had fired, who alleged he’d been terminated in retaliation for reportFEBRUARY 2024 THE AMERICAN PROSPECT 53

ing Lef kowitz’s suspicious wire transfers of millions of dollars to shady LLCs he controlled. The former CEO described Tehum in a federal lawsuit as an “old-fashioned bankruptcy scheme.”

The Tehum bankruptcy came before the complex case panel last February, with an almost comically amateurish eight-page form. Its bankruptcy attorney later testified he had gotten the job the night before the filing, when a colleague called him during the Super Bowl with the offer. But at the first hearings, Judge Christopher Lopez, who’d assumed Isgur’s spot on the panel earlier that year as part of what the veteran judge dubbed “long-term succession planning,” politely allowed Tehum’s lawyer and chief restructuring officer to ramble about what “upstanding” citizens they were, evincing no signs he found anything unusual or alarming about the case.

The case morphed into an inscrutable dispute between Tehum and YesCare over the amount of cash each had been allocated in the divorce. As Tehum’s chief restructuring officer explained it in the dry jargon of corporate bankruptcy-ese, an entity called M2 had graciously agreed to fund the Tehum estate to the tune of $15 million to settle its disputes with dozens of vendors and hundreds of patients, but YesCare might potentially agree to pony up more funding—if creditors agreed to release YesCare from liability for any fraudulent transfers that might have transpired.

What the case needed, Judge Lopez decided, was for YesCare to come to the table and negotiate a settlement to their “dispute” with Tehum under the supervision of an official court “mediator”—a task he designated to none other than Judge Jones.

YesCare’s counsel, as it happened, was Liz Freeman, newly solo after a departure from Jackson Walker in late 2022.

At this point, a bankruptcy attorney retained by one of Tehum’s creditors let slip to one of the civil rights lawyers that Jones and Freeman were rumored to be exlovers, and that a pro se creditor had somehow figured it out, but all the legal filings on the matter had been sealed. The civil rights lawyer shared the rumor with a Business Insider reporter. He tracked down Van Deelen, who had recently unearthed evidence of Freeman and Jones’ two milliondollar homes. Van Deelen typed up a new lawsuit and drove back to the Southern District of Texas courthouse to file it on October 54 PROSPECT.ORG FEBRUARY 2024

THE YESCARE SETTLEMENT WAS DESIGNATED TO JUDGE JONES. YESCARE’S COUNSEL WAS NONE OTHER THAN LIZ FREEMAN. 4, delivering it personally to Judge Jones, who was eating a sandwich and reportedly “turned white” at the sight of his old gadfly.

Twelve days later, Jones resigned, following the circuit court’s finding of “probable cause that Judge Jones has engaged in misconduct.” Jones to Lopez and Isgur, who graciously returned to his old job to mitigate the damage to their beloved complex case panel. The Office of the U.S. Trustee, a watchdog agency described by one small creditor’s attorney as “beaten down” by the clout of the Houston bankruptcy court, filed a motion to claw back up to $13 million in fees from Jackson Walker’s 26 cases before Jones’s court while Freeman was a partner.

In an almost literary flourish, Jones’s gig mediating the charade of Tehum’s “dispute” with itself has been transferred to Chris Sontchi, the Delaware bankruptcy judge whose exasperation with the Kirkland Ellis bankruptcy triggered the firm’s Delaware boycott that enabled Jones and Isgur’s rise to Chapter 11 dominance in the first place.

Van Deelen got a real lawyer, who filed an amended complaint alleging a racketeering scheme between Jones, his girlfriend, her law firm, and Kirkland & Ellis, at the expense of “protesting creditors and investors.” The complaint describes both law firms as almost farcically complicit in the scheme, with Jackson Walker conducting a sham “inquiry” into the relationship in 2021 and multiple Kirkland partners telling the Financial Times they had been “long aware” of the Jones-Freeman romance and simply “assumed” the couple had received “clearance from a superior court”—because that’s how appeals courts work for the types of lawyers who bill $2,000 an hour, apparently.

Jones, for his part, filed a motion to dismiss Van Deelen’s case on the audacious grounds of judicial immunity, citing a 1978

Supreme Court ruling about a judge who ruled in favor of allowing a mother to secretly sterilize her daughter. SCOTUS ultimately determined youth sterilization to be outside the judge’s jurisdiction, but he was a mere circuit court judge; as I have labored to detail above, the jurisdiction of the modern corporate bankruptcy court is virtually limitless.

I reached out to everyone involved in this spectacle—Jones, Isgur, Freeman, Cavenaugh, Sussberg, Jackson Walker, Kirkland & Ellis—and the only person who got back to me was Freeman’s attorney Tim Kirkendall, who in another example of the insularity of the whole thing is Isgur’s former law partner and Judge Jones’s former boss. He declined to comment.

Bankruptcy is not the only area of law in which public rights have been hijacked by corporations and their legal counsel to serve their interests; corporations are people, my friend. But given its awesome power to summarily deprive stakeholders of their due process rights, it is probably the most powerful. “Almost all of law is enforced through civil liability, and bankruptcy supersedes civil liability,” notes LoPucki. But the lawlessness celebrity bankruptcy judges have normalized behind the scenes may be due for some law and order.

Last December, I sat in the Supreme Court gallery and watched an attorney representing Purdue Pharma, Greg Garre, attempt to convince the justices that the Sackler bankruptcy and its serial liability releases were part of a storied centurieslong tradition, on the basis of two purported cases from 1619 and 1620 in which then-Lord Chancellor Francis Bacon is said to have granted some kind of discharge.

(Bacon was, incidentally, charged with 23 counts of corruption and run out of office the very year following his alleged ruling.) When Garre pointed out that victims would have “serious issues about being able to collect” damages from the Sackler family if they refused to release them from liability, Ketanji Brown Jackson shot back, “Only because the Sacklers have taken the money offshore, right?”

Neil Gorsuch then picked up the derision, suggesting bipartisan revulsion. “When we look at historic equity practice, I think you got a couple of cases from the 1600s and a couple of district court cases more recently and pretty much nothing else,” he told the Purdue lawyer. “You got a lot running against you, don’t you?” n

CULTURE Colman Domingo plays Rustin in the Netflix biopic.

Bayard Rustin— Out of the Shadows

ed an organizer who, as Harvard professor Henry Louis Gates Jr. points out, could “unite feuding civil rights leaders, fend off opposition from Southern segregationists who opposed civil rights, and fend off oppoand the design of Lyndon Johnson’s Great sition from Northern liberals who advoSociety. Organizers of later demonstrations cated a more cautious approach.” demanding equal justice for women, The miracle-worker was Bayard Film & lesbians and gays, and individuals Rustin, who in only eight weeks took Books with disabilities have turned to the the bravura idea of a mass demonstration and made it a reality. Yet largely 1963 march as a model.

The fact that the march actually took because he was gay, Rustin received no credit place was a logistical miracle. It demand- for his accomplishment and until recently has

A new movie, a new book, and an old nonviolent warrior now given his rightful recognition

By David Kirp On August 28, 1963, upwards of 250,000 people gathered at the Lincoln Memorial for the March on Washington for Jobs and Freedom. By highlighting the reality of discrimination, the march contributed to the passage of the 1964 Civil Rights Act

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You won’t find Rustin’s name on the official program of the March on Washington, despite his primary role in organizing it. about his sexuality and “pass” as straight.

While he was not “out” until the 1980s, the fact that he was a gay man was an open secret. In the Netf lix biopic, the actor Colman Domingo, playing Rustin in an Oscar-worthy performance, provides an explanation that seems true to the man: “I can’t surrender my differences. The world won’t let me. And even if I could, I don’t want to … Am I yet again forced to justify my existence? … When we tell ourselves lies, we do the work of oppressors by oppressing ourselves … On the day I was born black, I was born homosexual. [Civil rights leaders] either believe in freedom and justice for all, or they do not.”

Homophobia ran deep within the civil rights community, most of whose leaders were Baptist ministers. Those leaders also feared—not without cause—that “sex deviate” hunters like FBI Director J. Edgar Hoover and segregationists like South Carolina Sen. Strom Thurmond would feast on his homosexuality as a way to discredit the movement.

Rustin’s promiscuous sex life nearly torpedoed his involvement in the march. On the floor of the Senate, Thurmond revealed

that in 1953 Rustin had been arrested with two other men and sentenced to prison for having sex in a car. “This so-called man, he is a pervert,” Thurmond thundered, but at this pivotal moment the civil rights leadership rallied around Rustin. In retrospect, it is remarkable, as Michael Long, editor of Bayard Rustin, points out, that those leaders chose a pacifist, ex-convict, former communist, gay Black man to organize the most noteworthy event in the history of American protests.

The March on Washington was not the first time that Rustin’s sexual orientation was used against him. In 1960, he and King planned a demonstration outside the Democratic Convention to demand antidiscrimination legislation. Wilkins and other establishment civil rights leaders opposed the plan, concerned that it would derail their behind-the-scenes congressional politicking.

To Congressman Adam Clayton Powell Jr., a charismatic and corrupt New York City pastor, homosexuality was sinful. He fulminated about an “alarming growth of sex degeneracy … The boys with the swish and

EDDIE ADAMS / AP PHOTO

been little known to a wider public. With the release of a widely praised Netflix film, Rustin, produced by Barack and Michelle Obama, and the publication of an insightful collection of essays, Bayard Rustin: A Legacy of Protest and Politics, this is his belated moment.

The march marked the triumph of a lifetime devoted to promoting racial and economic justice. In 1941, collaborating with A. Philip Randolph—a lion of the civil rights movement, who introduced him to the tactics of protest—Rustin helped plan a march on Washington to protest racial discrimination in war industries and segregation in the military. President Franklin D. Roosevelt, fearful of the optics of 50,000 African American marchers descending on Washington, issued an executive order banning discrimination in the defense industry, and the march was called off. To Rustin, the message was clear—threatening disruption could be an effective tactic.

When Rustin was imprisoned for two years as a conscientious objector, he organized his fellow inmates to protest segregation. He was a mentor and later an adviser to Martin Luther King Jr., tutoring him in the philosophy and tactics of nonviolence, and a founder of the Southern Christian Leadership Conference, which gave King a national platform. Over the course of his career, Rustin logged hundreds of thousands of miles, launching freedom rides, speaking on college campuses and at church socials. He was jailed 23 times, including a stint on a North Carolina chain gang after a freedom ride.

Although the D.C. march came off without a hitch, old-line civil rights leaders kept Rustin buried in the shadows. You won’t find his name on the official program for the march, and he was not invited to a postmarch White House meeting with President John F. Kennedy. The NAACP’s recounting of the event barely mentions him.

Rustin’s personal baggage was the rationale for treating him as a pariah. “This march is of such importance that we must not put a person of his liabilities at the head,” insisted Roy Wilkins, executive director of the NAACP. Among those liabilities was his membership in the Communist Party in the 1930s, which in the eyes of many cast him as a traitor. Because he refused to serve in World War II, he was tarred as a draft dodger on the floor of Congress.

Rustin’s biggest liability was his homosexuality—more precisely, his refusal to lie

Context is essential in understanding how Rustin navigated between his being gay and his activism. the girls with the swagger.” Powell threatened King that if he did not disavow Rustin, he would tell the press that King and Rustin were lovers. There was not a scintilla of truth to Powell’s accusation, but King, in one of his least admirable moments, backed down. He canceled the Democratic Convention march and pushed Rustin out of the Southern Christian Leadership Conference (SCLC), sidelining him amid the freedom rides and sit-ins, nonviolent strategies to which he brought experience and expertise.

In 1964, after Rustin had organized a successful boycott of the New York City public schools to protest segregation, the SCLC considered inviting him back, but vetoed him because of the old worries about his sexual and political history.

Historical context is essential in understanding how Rustin navigated between his being gay and his activism. For gays and lesbians, the 1940s, 1950s, and 1960s were a nightmare. Homosexual sex was illegal in every state, and police routinely entrapped gay men. The FBI generated 330,000 pages documenting “sex deviates.” President Dwight Eisenhower issued an executive order banning “sex perverts” from federal jobs. Many houses of worship shut their doors to gays. Families disowned their gay and lesbian children. The American Psychiatric Association defined homosexuality as an illness. As historian Martin Duberman recounts in Cures, his heartbreaking memoir, some gay men, plagued by self-hatred, sought out psychiatrists in the vain hope that they could become “normal.”

Being “out” was exceedingly rare during that era, and Rustin’s refusal to lie about his sexuality was an act of personal courage. “I never had any sense that Bayard felt any shame or guilt about his homosexuality,” recounted Davis Platt, his lover during the 1940s.

In the 1960s, Rustin shifted his focus, moving away from the streets to the corridors of power. He argued that the most

effective strategy was to make use of the political system, building coalitions to secure racial and economic justice—the theme of the March on Washington. By then, however, this melioristic approach had fallen out of favor. As “Black Power” became the rallying cry, Rustin’s ideas, summarized in a 1965 Commentary essay, “From Protest to Politics,” went unheard. Ignored at home, he focused on international human rights.

The public and private lives of Bayard Rustin were inextricably intertwined. Until he met Walter Naegle, who in 1977 would become his life partner, he evinced no interest in the gay rights movement. That relationship doubtlessly played a part in his subsequent involvement.

Naegle was precisely Rustin’s type—boyishly handsome, a social activist and a talented photographer. He had refused to sign up for the Vietnam War draft, just as Rustin had refused to serve in World War II. In 1982, the two men decided to legalize their relationship in the only possible way—Rustin adopted Naegle. “He was concerned about protecting my rights, because gay people had no protection,” Naegle told an NPR interviewer. “We actually had to go through a process as if Bayard was adopting a small child. They had to send a social worker to our home, to make sure that this was a fit home.”

While Rustin started speaking out about gay rights during the 1980s, he was ambivalent about his role in that movement. “While I have no problem with being publicly identified as homosexual, it would be dishonest of me to present myself as one who was in the forefront of the struggle for gay rights,” he wrote in 1986. “I fundamentally consider sexual orientation to be a private matter.

As such, it has not been a factor which has greatly influenced my role as an activist.” Yet that same year, Rustin wrote to Ed Koch, then mayor of New York City, urging the passage of a gay rights bill: “No group is ultimately safe from prejudice, bigotry and harassment so long as any group is subject to special negative treatment.”

Rustin’s feelings about the gay rights movement continued to evolve. “Twentyfive, thirty years ago, the barometer of human rights in the United States were black people,” he told a reporter in 1987, shortly before his death. “That is no longer true. The barometer for judging the character of people in regard to human rights is now those who consider themselves gay, homosexual, lesbian.”

Finally, Rustin is getting the attention he deserves. “Being black, being homosexual, being a political radical, that’s a combination that’s pretty volatile and it comes along like Halley’s Comet,” Walter Naegle told a Huffington Post reporter. The essays in Bayard Rustin limn the many facets of his life, among them his organizational genius; his commitment to nonviolence, which infused the civil rights movement; his turbulent relationship with King; and his pivot from the streets to the political arena. In a chapter titled “Troubles I’ve Seen,” John D’Emilio draws on his masterful biography of Rustin, Lost Prophet, to create an intricate portrait of the man in all his complexity. Rustin, the newly released film, does a remarkable job of portraying its subject, neither underplaying nor sensationalizing the interplay between his public and private lives.

It is natural to want our heroes to be unblemished—Sir Lancelot or Joan of Arc— but rarely, if ever, is that the case. As George Orwell wrote, in an against-the-grain critique, “Reflections on Gandhi”: he essence of being human is that T one does not seek perfection, that one is sometimes willing to commit sins for the sake of loyalty, that one does not push asceticism to the point where it makes friendly intercourse impossible, and that one is prepared in the end to be defeated and broken up by life, which is the inevitable price of fastening one’s love upon other human individuals.

What’s needed in American politics, but in short supply, is an acceptance of complexity, not a one-dimensional narrative of outsized heroes and villains. The moral compass of those whom we regard as heroes emerges over time, through trial and error.

No one would dream of canonizing Rustin.

But Barack Obama was surely right to honor him, not just with the Presidential Medal of Freedom that he awarded posthumously but also with the movie that he and his wife have now produced. Rustin the man and Rustin the movie are welcome reminders of the linked struggles for justice and dignity in our enduring past. n David Kirp is professor emeritus at the Goldman School of Public Policy and professor of the Graduate School at the University of California, Berkeley. Disrupting Disruption: The Steady Work of Transforming Schools is his most recent book.

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CULTURE

It’s the Working Class, Stupid

John Judis and Ruy Teixeira want Democrats to focus on working-class interests and back off cultural radicalism.

By Paul Starr Where Have All the Democrats Gone?: The Soul of the Party in the Age of Extremes

By John B. Judis and Ruy Teixeira Henry Holt Ever since the mid-1970s, Democrats have been trying to recreate the robust political majorities they enjoyed from the 1930s through the 30 years after World War II. Encouraged by demographic forecasts of a majority-minority society, many progressives in recent Books decades have seen the makings of a new Democratic era in the rising electorate of minorities, women, and younger voters. Barack Obama’s two presidential victories seemingly confirmed that prospect. But, especially since 2016, critics of that theory have insisted that the rising electorate is insufficient. Democrats, they say, need to return to the politics that used to win them working-class as well as middle-class support, white as well as minority. In their different ways, Joe Biden and Bernie Sanders both reflect the conviction that restoring working-class confidence in progressive politics is vital to its success.

In Where Have All the Democrats Gone?, John B. Judis and Ruy Teixeira provide a strong version of the working-class thesis— strong in two respects. First, they call for a decisive rejection of the neoliberal economic policies of Democratic presidents from Jimmy Carter through Bill Clinton and Obama, which contributed to the decline of the party’s old base in the industrial working class. Second, they want Democrats to “declare a truce” in the culture wars and back off from the cultural radicalism that they see as shaping public perceptions of the Democratic Party and alienating working-class voters.

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The braver half of the book is the second part, which defies much current progressive orthodoxy on issues of race, immigration, gender, and climate. But even if you think, as I do, that some of Judis and Teixeira’s criticism is reasonable, it’s unclear how Democrats could declare a culturewar “truce” that neither Republicans nor progressive movement groups would have any intention of observing.

Like many other analysts today, Judis and Teixeira define “working class” as people without college degrees, and often they speak of the “working and middle classes” together.

But throughout the book, they are mainly concerned, as they put it in their introduction, with the factors that have “driven working-class voters out of the Democratic Party.”

This is not just a matter of winning elections but of the party’s very character. It is hard to see how the Democrats can be a progressive party if they are not the party that workingclass Americans see as their own.

The title Where Have All the Democrats Gone? needs to be understood in relation to Judis and Teixeira’s 2002 book, The Emerging Democratic Majority. They’re now repudiating that forecast and asking why the stable majority they expected has not emerged. Since I published an article called “An Emerging Democratic Majority” five years before their book, I have a stake in this argument. As predictions from the ’90s go, that one stands up reasonably well.

After all, Democrats have won the popular vote in seven out of the last eight presidential elections since 1992 after losing five of the previous six from 1968 to 1988. I am not going to delete “An Emerging Democratic Majority” from my bibliography out of remorse or embarrassment.

But I underestimated, as they did, Democrats’ subsequent losses of white working-class votes. Nor did we expect that Republicans would ever nominate someone

like Trump or that such a candidate might attract substantial support from workingclass Hispanics, as Trump did in 2020. The erosion Democrats now face in workingclass support is not just among whites—it’s across racial and ethnic lines.

As Judis and Teixeira tell the story, two sets of culprits lie behind the Democrats’ economic and cultural missteps. They hold Wall Street and Silicon Valley responsible for the party’s failure to follow through on the populist economics that Carter, Clinton, and Obama at times rhetorically invoked. The true culprit for cultural radicalism, Judis and Teixeira argue, is the Democrats’ “shadow party”—advocacy groups, think tanks, foundations, and other donors as well as liberal media that have pushed the party toward positions that make no sense to working-class voters. Basically, Judis and Teixeira think that neoliberal economics and cultural radicalism make a deadly combination, appealing to an elite but not to the mass of voters. They want Democrats to move left on economics and toward the center on culture to recreate the politics that sustained the New Deal.

I have a lot of sympathy for that general position, but much of Judis and Teixeira’s broad-brush picture leaves me unconvinced.

They devote a lot of their book to recounting the history of recent Democratic administrations (the Republicans get no attention), as though Democrats were entirely to blame for all working-class woes. But as the political scientist Larry Bartels shows in Unequal Democracy, middle- and low-income Americans did far better in pretax income growth under Democratic than under Republican administrations from 1948 to 2014, a pattern that Bartels shows still held for the period after the mid-1970s despite lower overall rates of growth. And Democratic tax policies were also far more progressive.

To be sure, Democrats did not do enough to counteract the decline of unions and other sources of rising inequality in market income, and neoliberal trade policies compounded those problems. But, except for Carter, whose presidency was an unmitigated disaster for Democrats’ reputation for economic competence, it is hard to argue that the party’s economic performance objectively drove working-class whites to vote Republican. If the problem was neoliberalism, Republicans could not have been the answer because they were more wholeheartedly devoted to it—that is, until Trump overthrew the Republican establishment and

SHIHO FUK ADA / AP PHOTO

It is hard to see how the Democrats can be a progressive party if they are not the party of the working class.

its views on trade and immigration. But now that Republicans have abandoned neoliberal policies in those areas, it has been easier for Democrats under Biden’s leadership to reject neoliberalism on industrial policy, energy, and climate as well as trade—which is why, in their economic-policy chapters, Judis and Teixeira are knocking on an open door.

Race, gender, and immigration— “cultural issues” in this book’s framing—are more plausible explanations for Democrats’ pre-Trump working-class losses. But Judis and Teixeira don’t object to the policies that primarily caused those losses. They approve of the reforms adopted in response to the civil rights, women’s, and gay rights movements of the 1960s and ’70s, and they show no interest in reversing the 1965 Immigration and Nationality Act. Their fire is directed mainly at more recent, radical ideas like critical race theory and policy positions like defunding the police that they point out have little support in public opinion, especially among working-class

voters. But, compared to the earlier measures, which reshaped American society, the recent things that trouble them are often only tenuously connected to the Democratic mainstream, symbolic rather than substantive, and without clear electoral impact.

Still, I don’t disagree with Judis and Teixeira that a slogan like “defund the police” was counterproductive or that many progressives’ censorious preoccupations with politically correct language consume energy, mystify and alienate ordinary people, and lead nowhere, least of all to a more just society.

But Judis and Teixeira fail to make relevant distinctions on cultural issues as they do on economic ones. On race, for example, they seem to think that the idea of “systemic” or “structural” racism (they always put those terms in quotation marks) is a radical invention. In fact, the notion that racial inequalities are institutionally reproduced, without necessarily requiring conscious individual racist attitudes, is a standard, useful, and

reasonable social-science idea. But they are right to criticize what I would call racial reductionism, the tendency to make racism an all-encompassing explanation and indictment of American society. And they are right to tell progressives to call off the constant accusations of racism and to recognize that white workers have also suffered from deindustrialization and other economic changes that have increased inequality. As an alternative to recent writing about anti-racism, they hold up a worthy model: the sociologist William Julius Wilson, a Black intellectual who sees himself as a social democrat (and who published one of his noteworthy articles developing that position in the first issue of this magazine in 1990).

On each of the other cultural issues they discuss, Judis and Teixeira make the same argument about how Democrats have lost working-class votes. Progressives, they say, have become too “extreme”—too extreme on immigration, too extreme on transgender identity, too extreme (“apocalyptic”) on FEBRUARY 2024 THE AMERICAN PROSPECT 59

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Asylum seekers assemble in Mexico, across the border from El Paso, Texas.

Judis and Teixeira don’t have a plausible alternative for addressing the political problem that immigration poses. ly reduced Americans wages is probably wrong. (See Ran Abramitzky and Leah Boustan’s terrific recent book, Streets of Gold: America’s Untold Story of Immigrant Success, for a succinct summary of the economic evidence on this question.)

Nonetheless, it is true that many Americans, especially those with a high school education or less, see immigrants as an economic threat and resent public spending on their behalf. Moreover, the current surge of asylum seekers on the southern border has created an immigration issue that is different from the one that the United States faced in the 1990s. The principal source of this new problem is not illegality but the law itself, in this case the 1980 Refugee Act, adopted originally with overwhelming bipartisan support.

If Democrats are to deal with the latest phase of the immigration issue—and this is where I agree with the general thrust of Judis and Teixeira’s argument—they will need to make substantial compromises to limit an influx that, at least in the short run, represents a serious fiscal and political liability, and they are going to have to make that position unambiguously clear in this election year. In the long run, the asylum seekers will contribute greatly to this country as other refugees have, but we need better means of regulating their numbers and ensuring that related public costs do not fall on states and localities already struggling to meet other needs.

Judis and Teixeira may be aiming their book primarily at the “shadow” Democratic Party. They seem to be saying to progressive donors, foundation officers, advocacy groups, and, yes, magazine editors: Stop promoting views that are undermining Democrats’ ability to build cross-racial, working-class support. Stop getting intimidated by your young staff of passionate college graduates. Even if Judis and Teixeira are wrong about much of their indictment of cultural radicalism, the shadow party ought to take seriously their central, cautionary political message: “It’s the working class, stupid.” n

CHRISTIAN CHAVEZ / AP PHOTO

climate—and that extremism has infected the Democratic Party because of the shadow party’s influence. But whatever you think of transwomen competing in women’s sports, that issue is unlikely to have moved many votes to the Republican column. Similarly, after a year in which worldwide temperatures hit a new peak in human history, I don’t see Democrats’ climate policies, including the idea of a Green New Deal, as a form of extremism dragging down their electoral support (Republicans ought to be more worried). Of the issues that this book raises as instances of “cultural radicalism,” immigration is the only one where, I agree, Democrats are in serious political jeopardy.

Judis and Teixeira, however, don’t have a plausible alternative for addressing the political problem that immigration poses.

In their telling, Democrats once had a balanced immigration policy that protected working-class interests, but they abandoned it in favor of a stance that’s chiefly protective of illegal immigrants (the substitution of the term “undocumented” for “illegal” they see as part of the problem). In the early 1990s, a bipartisan commission on immigration chaired by Barbara Jordan, a Black Democratic member of Congress from Texas, included in its recommendations a federal system of employer verification to ensure job applicants were legally eligible to work, along with serious penalties for employers who flouted the law. Such a system could have significantly deterred illegal immigration, but Congress never approved it because of the opposition of both employers and Hispanic groups. The latter feared it would adversely affect their community, which it certainly would have.

The Jordan Commission, Judis and Teixeira write, “proved to be the last gasp of liberal bipartisanship and of immigration reform that took the condition of American workers fully into account.” Not only did liberal organizations from the ACLU to the NAACP come out against the kind of restrictionist measures Jordan included in her report; so did the AFL-CIO. Nonetheless, the Jordan Commission is the model to which Judis and Teixeira argue Democrats ought to return for the sake of American workers and their own electoral fortunes.

Two things are wrong with the Jordan Commission model. Its chances of approval today are probably worse than in the 1990s, and Judis and Teixeira’s assumption that illegal immigrants have significant-

The Stories Corporations Tell

Two new histories of American capitalism reveal how alluring narratives have nurtured corporate power.

By Adam M. Lowenstein Taming the Octopus: The Long Battle for the Soul of the Corporation

By Kyle Edward Williams Norton One Day I’ll Work for Myself: The Dream and Delusion That Conquered America

By Benjamin C. Waterhouse Norton In the 1950s, Harold Brayman, public relations head of the chemical manufacturer DuPont, circulated an ominous memo to company executives. TV shows and movies, Brayman warned, as well as “imaginative literature and … scholarly treatise,” had “nurtured the myths of gargantuan, irresponsible, anti-social concentrations of power; of ruthless, profit-hungry managements; and of large business smashing small.” Popular culture, in other words, was making DuPont look bad.

As the historian Kyle Edward Williams documents in his new book, Taming the Octopus: The Long Battle for the Soul of the CorporaBooks tion, Brayman was right. By the 1950s, many Americans were becoming increasingly wary of big, bureaucratic firms like DuPont, then a $1.8 billion manufacturer of products such as nylon, body armor, and dynamite. In novels and films like The Organization Man and The Man in the Gray Flannel Suit, Williams writes, “the message was remarkably consistent: corporations alienated workers and pushed around small businessmen, investors, and consumers—all the while amassing huge profits.”

Today, corporations and their executives continue to amass huge profits. Workers, entrepreneurs, investors, and consumers (not to mention the planet) continue to be

pushed around. While many forces drove this accumulation of corporate power, two new books suggest that the story goes beyond lobbyists and think tanks, beyond politicians and executives and ideologues, to something more intangible: narratives.

Taming the Octopus, which gets its title from a 1904 cartoon that depicted the Standard Oil trust as a sprawling, uncontrollable

sea creature with tentacles reaching toward every corridor of power, traces the centurieslong American debate about the purpose of the corporation in society. It documents how the notion that private companies, rather than governments, should solve public problems—“corporate social responsibility” to most; “woke capitalism” to Vivek Rama­ swamy and other Republican politicians—is a feel-good story that company bosses, academics, journalists, and “thought leaders” have been honing for decades.

Another new book, Benjamin C. Waterhouse’s One Day I’ll Work for Myself: The Dream and Delusion That Conquered America, charts the rise of the “persistent myth,” as the author puts it, that individual entrepreneurs and small businesses anchor the U.S. economy, and that every American would be better off “going it alone.”

Together, these histories trace the emergence and entrenchment of ideas about

Corporations have responded to popular wariness of big business as a problem to be solved with public relations.

FEBRUARY 2024 THE AMERICAN PROSPECT 61

CULTURE

While Brayman, the DuPont PR head, titled his memo “The Attack on Bigness,” he wasn’t particularly concerned about corporate concentration. The real problem, Brayman indicated, was corporate appreciation: Americans didn’t recognize all the good that companies like DuPont were doing for them.

Fortunately, he had a straightforward solution. “The businessman is normally reluctant to talk out loud,” Brayman lamented in a different address. “He frequently shuns the spotlight and is content with plugging his wares, not himself.” Executives simply needed to remind people about their value. If they told their stories, public opinion would follow. There was no indication in Brayman’s memo “that corporations had done something to contribute to this supposed crisis,” Williams notes. The challenge, it seemed, was a matter of communications.

One of Brayman’s contemporaries who appeared not to require this explicit communications advice was IBM president Thomas J. Watson Jr. In the 1950s, Williams writes, IBM was bringing in more than $1 billion a year in revenue and employed around 150,000 people.

Recognizing the rising popular wariness of “bigness,” Watson embarked on a speaking tour (sponsored by the consulting firm Mc­K insey, because some things never change). “Bigness itself is a relatively new phenomenon in our society,” Watson said. “Even if nothing else had changed, the vast concentrations of power in our society would demand that businessmen reconsider their responsibilities for the broader public welfare.”

Whether Watson and his fellow executives actually reconsidered anything, or simply co-opted the arguments of their critics that something about corporate America had to change, their PR efforts proved successful. At the time, some journalists and influential thinkers were already celebrating what at the time was known as “business statesmanship”: the notion that companies and their executives should serve not just themselves but all of society.

“The profit motive is, for most practical purposes, on its last leg as the hallmark of American capitalist motivation,” one writer predicted. “There has occurred a great 62 PROSPECT.ORG FEBRUARY 2024

Uber and Lyft sold their drivers on running their own businesses, as a way to justify shifting economic burdens onto their shoulders.

transformation, of which the world as a whole is as yet unaware,” another influential voice—the editors of Fortune magazine—proclaimed. In the 1950s, big business and its allies wanted you to know that they were beginning a fundamental shift away from profit maximization and toward social responsibility and “statesmanship.”

Seventy years later, big business was still beginning that fundamental shift— and Fortune was still among the leading voices amplifying the message that chief executives wanted the world to hear. “Society gives each of us a license to operate,” Ginni Rometty, one of Thomas Watson’s successors as head of IBM, told the magazine in 2019. “It’s a question of whether society trusts you or not. We need society to accept what it is that we do.”

Rometty was one of three chief executives featured on the cover of Fortune’s September 2019 issue. The story was prompted by a high-profile announcement from the Business Roundtable, a corporate lobbying group, proclaiming that CEOs of some of the biggest companies in the world, who had recently secured a trillion-dollar corporate tax cut, would henceforth serve all of their “stakeholders.” Under the banner headline “America’s CEOs Seek a New Purpose for the Corporation,” Fortune’s assessment assured readers that “something fundamental and profound has changed in the way they approach their jobs.”

One conclusion that emerges from Williams’s detailed and timely history is that little of today’s chatter about “stakeholder capitalism” or “ESG investing” (investing

based on environmental, social, and governance standards) is as new, or as transformational, as the hype suggests. Time and time again, Williams demonstrates matter-of-factly, corporations have responded to public criticism with increasingly wellhoned storytelling campaigns, designed primarily to resist momentum for new laws and regulations. And time and time again, journalists, professors, and thought leaders have been ready to endorse polished assurances that corporations really are different now.

Many of the events that Williams cites made headlines in their time, only to be forgotten until they reappeared a few years or a few decades later, with new characters and contexts but oddly similar platitudes.

There’s a direct line—or a circle—from the “business statesmanship” of the 1950s to the “stakeholder capitalism” of today.

The question of how to solve problems in America, rather than who should solve them, sits at the heart of One Day I’ll Work for Myself, Benjamin C. Waterhouse’s new history of America’s obsession with individual ownership and the promise of entrepreneurship.

The UNC-Chapel Hill historian’s previous books include a detailed account of how big corporations invested in trade associations like the Business Roundtable, U.S. Chamber of Commerce, and National Association of Manufacturers to grow their political influence. This time, Waterhouse takes aim at a less tangible campaign: the infusion into American culture of a set of values that “have

RINGO CHIU/ AP PHOTO

capitalism that have deeply infiltrated the American psyche. As a consequence, countless people live under the gnawing weight of economic precarity, and the notion that we might solve problems through collective action and democracy has been shattered.

privileged individual initiative and entrepreneurship, and … eschewed collective action.”

There is, of course, nothing inherently wrong with celebrating entrepreneurs or small businesses. Like our rhetorical embrace of “essential workers” during the COVID-19 pandemic, Waterhouse argues, America’s “national creed” of aspiring to work for yourself only became a problem when it failed to advance beyond a talking point deployed by politicians, executives, and ideologues to justify shifting social and economic burdens onto the shoulders of individuals.

From the growth of franchising to the rise of hustle culture and the gig economy’s tantalizing promise of “No shifts. No boss. No limits,” as one Uber billboard put it, corporate interests have used the rhetoric of protecting small businesses and entrepreneurs as a pretext for shedding their obligations to their workers and to society, and as a distraction from their efforts to protect themselves. One consequence of the evolution that Waterhouse traces in the book is a profound shift from a shared belief that individuals might come together to solve problems, into a collective faith in individual effort.

The United States has always mythologized individualism, Waterhouse writes, but American elites really began to “fetishize entrepreneurship and private initiative” in the 1970s. This was the time, not coincidentally, when large corporations began to mobilize more aggressively to capture the political process. It was also, not coincidentally, when workers’ wages stopped growing in tandem with their steadily rising productivity. (This combination of productivity growth and wage stagnation has now continued, mostly uninterrupted, for half a century.)

Waterhouse tells the story of an editor at Nation’s Business, the monthly magazine of the U.S. Chamber of Commerce, who sometime in the 1950s was asked to include the occasional article about smaller companies. “We are selling Nation’s Business to an awful lot of small-businessmen and -women,” the person asked. “Couldn’t we have one article a month addressing smallbusiness problems?” The editor’s response: “Over my dead body.”

Twenty years later, Waterhouse writes, the Chamber was still pushing the interests of America’s biggest companies in Washington. But its message had evolved. Even as the group lobbied forcefully and effectively for tax cuts and regulatory rollbacks that helped its biggest members consolidate profits and

market share over smaller rivals, in the 1970s it began welcoming small businesses as members and proclaiming its support “for a common agenda for all business and for a common action plan to put that agenda into effect.”

Like many of its powerful member companies, the Chamber had begun to recognize the power of co-opting the idea of small business.

By the 1980s, in Waterhouse’s telling, the narrative of “our go-it-alone society” had fully taken hold, and fundamentally diverged from reality. Despite winning the votes of many small-business owners, Ronald Reagan and his ideological backers did more to entrench the promise of entrepreneurship than they did to make actual entrepreneurship possible, particularly for anyone who wasn’t white, male, and already well-off. After taking office, Reagan immediately attempted to abolish the Small Business Administration. (He settled for cutting the agency’s budget.) During his second term, Reagan declined to attend his own White House Conference on Small Business, leading one of the 20,000 in attendance to describe being “shoved by the wayside because we’re not as important as he tries to make us believe.”

A decade later, the United States had not become a land of “mom-and-pop stores and Main Street values,” as Waterhouse describes the idealized vision of the age, but rather a nexus of global corporations dependent on Wall Street financialization for short-term profits. Indeed, Waterhouse writes, “by the early 1990s, the political and ideological power of business owners—hailed and defended as growth-driven entrepreneurs and innovators—had become fully woven into American politics.”

As productivity and wage growth continued to diverge, so did the “chasm between ideal and reality,” between the idolization of people making a living on their own and the creation of a society that could actually support such a possibility. This divergence was accelerated by the fact that corporate leaders, politicians, and ideologues discovered that they could leverage the go-it-alone ethos to shape public policy.

Tax cuts that overwhelmingly benefited large corporations and wealthy people were framed as critical relief for scrappy startups and job-creating entrepreneurs. New laws and regulations—such as the Affordable Care Act and the Dodd-Frank financial reform, both of which specifically exempted small businesses and smaller banks from

many of their key provisions—became mortal threats to prosperity. The narrative became a bipartisan tool for protecting the wealthy and powerful.

These trends provided fertile ground for the emergence of contingent work relationships like the gig economy that were even more profitable for corporations and more precarious for workers. Contrary to the techcentric story told by founders, venture capitalists, and tech-obsessed elites, however, the development of smartphones and the internet didn’t make a world of Uber and Airbnb inevitable. The technology was a necessary ingredient, Waterhouse writes, but “what really allowed the gig economy to take off was how those new technologies meshed with a set of cultural assumptions and economic conditions that had been marinating for decades.”

Tech giants have been particularly shameless about keeping profits and control within the firms and their executives, while offloading most of the risks and responsibilities—not to mention the actual work.

But as Waterhouse’s history makes clear, Big Tech didn’t invent this business model.

Today’s billion-dollar apps follow a long line of franchisors and multilevel marketers and subcontracting firms that have sought new ways to “squeeze wastage out of a typical day,” as one CEO boasted. And it was all done under the guise of a seductive promise: “It’s Your Turn to Be the Boss,” as Kwik Kopy Printing told potential franchisees.

The history that Williams documents in Taming the Octopus is distinct from what Waterhouse takes on in One Day I’ll Work for Myself, but the authors’ arguments are more than complementary. Together they reveal that what corporations are against has proven far more insidious, and far more consistent, than what they claim to be for.

Whether corporations promise to solve the world’s problems themselves or promise that America will thrive when you solve them on your own, what never changes is their aversion to worker power and the democratic process—the only forces capable of nudging American capitalism in a fairer, more equitable, and less precarious direction. n Adam M. Lowenstein’s work has appeared in The Guardian, The Lever, Long Now, and more. He publishes “Reframe Your Inbox,” a newsletter of essays and interviews about capitalism and corporate power.

FEBRUARY 2024 THE AMERICAN PROSPECT 63

PARTINGSHOT

My Very Own American Dictatorship If I ruled the world …

your product?

ORDER VII: Every street corner must have an abortion clinic, and a green space showing nightly outdoor screenings of The Breakfast Club or Downton Abbey.

ORDER VIII: All plastic bags, straws, cups, and takeout containers are outlawed. Let Pyrex—and the oceans—reign.

ORDER IX: I am coming for your guns. Our gun buyback program is generous, as you shall be given a year of therapy in exchange. All reclaimed firearms shall be melted down into tracks for the national high-speed rail system.

ORDER X: Drinking water is henceforth free at every concert or sporting event. Beers shall be no more than $5 apiece, with mixed drinks no more than $8. Cameras will be watching for a fair pour.

ORDER XI: If you are on hold for more than ten minutes with an airline, you fly for free.

ORDER XII: Universal days off for PMS and period cramps, to lie on the couch and cry while watching muted commercials.

Loyal Subjects of The United Girl-

Frans of America (formerly known as The United States), Below are the first 17 orders I have decreed as your Almighty Forever Socialist Girl Boss Francesca Fiorentini. Failure to obey the following will result in seven months’ hard labor, at $30 an hour, the new federal minimum wage: ORDER I: Every person shall be subject to routine medical screenings. We’re talking mammograms, colonoscopies, CT scans, allergy tests, sleep studies, and astrology readings. All medical and mental health appointments and procedures are free of charge; however, you will be polygraphed when answering how many drinks you have a week.

ORDER II: All yachts are hereby public domain.

Like a soccer field or a Yosemite campsite, there is now a sign-up sheet online.

64 PROSPECT.ORG FEBRUARY 2024

ORDER III: Two-thirds of all police departments will be transitioned into “Public Chill Brigades.” The PCBs will be armed with CBD oil and palo santo and staffed with social workers, mental health therapists, and shouting fifth-grade math teachers. Their task is to enforce “chill.”

ORDER IV: Every playground must have an attached beer garden. This is in addition to universal pre-K starting at six months of age.

Mommy and Daddy need their juice too.

ORDER V: The U.S.-Mexico border will be replaced by a cross-cultural flea market, complete with food trucks and massage stations for weary travelers.

ORDER VI: Commercials shall be muted at all times. If you can’t sell the public on unmuting your ad, how are you going to sell them on

ORDER XIV: Billionaires will be taxed out of existence, unless they can successfully reach Mars within six months of this decree. Their progress will be monitored by a Hunger Games– like reality show. Consider this the starting gun.

ORDER XV: The airwaves for TV and radio will be publicly controlled. News programs will be fact-checked live, like the old VH1 show Pop Up Video.

ORDER XVI: The surgeon general will issue a strong audio warning to be played ahead of every right-wing anti-vax fake guru podcast.

The surgeon general will be comedian Katt Williams.

ORDER XVII: After abolishing the Electoral College and gerrymandered districts, and balancing the Senate to represent the population, my tyranny involves running for re-election and honoring the results should I lose. But with the above orders instituted, who’s beating me?

—Francesca Fiorentini

JANDOS ROTHSTEIN

Why are Trump and the Heritage Foundation the only ones who get to cosplay dictatorship in 2024? Here are the decrees, orders, and halfbaked whims of my very own tyrannical rule.

ORDER XIII: Only people with C- to B+ voices are allowed to sing karaoke. If you can’t hold a tune, go bowling. If you’re Mariah Carey, go professional, show-off.

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It’s not too late to preserve American democracy—yet

AFT has given out 9.8 million books to children, families and educators through the AFT’s Reading Opens the World campaign and our partnership with First Book. Our Real Solutions for Kids and Communities campaign is taking on learning loss, loneliness and literacy challenges by pressing for solutions like wraparound services, community schools, the science of reading approach and hands-on learning. Our Code Red campaign is helping to secure safe patient limits and support health professionals.

And our work to help AFT members reduce or eliminate their student debt is on track to provide nearly $400 million in savings for our members.

By Randi Weingarten, President AMERICAN FEDERATION OF TEACHERS

L

et’s start with a thought experiment: A candidate for president is asked to reassure voters that he has no plans to abuse his power, break the law or use the government to go after people. The answer is a no-brainer, right? Of course, this isn’t a thought experiment; it’s the exact question Fox News host Sean Hannity posed to Donald Trump, to which Trump replied that he would be a “dictator,” but only on “day one.” Many in his party shrugged off the statement or dismissed it as a joke. Americans may be desensitized to Trump’s words, even when he says he would be a dictator, given the maelstrom of shocking statements he makes. But he has doubled down on this troubling declaration—the latest in a pattern of his authoritarian leanings.

Trump has talked about suspending the United States Constitution, invoking the Insurrection Act to mobilize the U.S. armed forces to suppress legitimate protests, weaponizing the government to retaliate against his political enemies, bringing treason charges against news organizations, and vowing to be the MAGA movement’s “retribution.”

So we have no choice but to take him at his word.

Ruth Ben-Ghiat, a historian at New York University, notes that “calling people ‘vermin’ was used effectively by Hitler and Mussolini to dehumanize people and encourage their followers to engage in violence.”

Similarly, he understands how to exert control through fear of violence. Sen. Mitt Romney and former Rep. Liz Cheney have both said that Republican colleagues told them they wanted to vote against Trump in the Jan. 6 impeachment trial but did not because of fear for their and their families’ safety.

Such fears are understandable. Just consider the type of content Trump posts on his Truth Social platform. In a message attacking Senate Majority Leader Mitch McConnell, Trump wrote, “He has a DEATH WISH,” which many viewed as a threat. Trump also shared a message of a supporter encouraging violence on Trump’s behalf; the supporter wrote that he would “physically fight for [Trump]” and “we Are Locked and LOADED.” Numerous prosecutors, lawyers and judges in cases involving Trump have received death threats after Trump railed against them.

No doubt there is division and anxiety in the country, but there is so much good as well. The

In a second term, Trump would have a better understanding of how to overcome the institutional safeguards against his corrupt intentions, including, presumably, stopping all federal and state cases against him. Whereas he previously was restrained by officials who put the rule of law and the good of the country above fealty to the president, plans are being laid to stack the government with loyalists, hardliners, sycophants and willing enablers should he return to office.

Trump has echoed language used by dictators, comparing his political opponents to “vermin.”

The AFT is focused on helping people thrive— that’s the purpose of the labor movement and of public education. But for working people and our families, for people not born to wealth or power, the ability to thrive depends on pluralism and democracy. That’s why, as a union leader, a social studies teacher and an American, I feel compelled to sound this alarm and commit to doing everything I can to safeguard democracy against the gravest threat since the Civil War. The next presidential election is less than a year away.

If Trump is the Republican nominee, the election will become an existential referendum on whether the United States will remain a democracy or risks becoming a dictatorship. It is not yet too late.

Photo: AFT

Trump has a pressing motivation—beyond vengeance or grievance—to put himself above the law: self-protection. He faces 91 felony counts in four criminal cases in Florida, Georgia, New York and Washington, which carry a total of roughly 700 years in jail time if convicted. And a $250 million civil fraud case in New York threatens his business empire.

Trump says he will be a “dictator” on “day one.”

We have no choice but to take him at his word.

Weingarten, center, with voters in Pittsburgh at an AFT Votes event on Nov. 2, 2022.

Follow AFT President Randi Weingarten: twitter.com/RWeingarten

Now Online!

The Infernal Triangle Follow historian Rick Perlstein’s election-year newsletter named for the intertwined forces that bear nearly equal responsibility for the tenuous state of American democracy

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