The American Prospect

Can Democrats Win the White Working Class? Justin Gest Trump’s Media War David Greenberg

Trump’s Fundamentalists Sarah Posner

liberal intelligence

S p r i n g 2 017

containing Trump Coalitions of the Resistance Peter Dreier • E.J. Graff The Golden State as progressive Fortress Harold Meyerson Can Corporations Save our Democracy? Robert Kuttner the Hour of the Attorneys General Rachel M. Cohen The Democrats’ Path to Retaking the House Justin Miller Health Care: Resist Now, Rebound Later Paul Starr Gabrielle Gurley • Ben Adler • Rena Steinzor Steven Greenhouse • David Dayen • Julian Zelizer • Jedediah Purdy PLUS

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contents

volume 28, number 2 Spring 2017

Columns 5 prospects The Republican Health-Care Unraveling: Resist Now, Rebound Later by Paul Starr

notebook 9 Corporate America and Donald Trump by Robert Kuttner 12 Mass incarceration and the Achievement Gap by Leila Morsy 15 The Instantaneous Injustice of Bail by Kamil AHsan 18 Fighting Child Poverty with a Universal Child Allowance by David Harris and H. Luke Shaefer

Features 20 Can the Democratic Party Be White Working Class, Too? By Justin Gest 28 Cover Package Containing Trump 29 The Anti-Trump Movement: Recover, Resist, Reform by Peter Dreier 36 How California Hopes to Undo Trump by Harold Meyerson 41 Will Suburban Activism Pave the Democratic Way to the House? by Justin Miller 47 No Factions in Foxholes by E.J. Graff 52 Trump’s Media War by David Greenberg 57 The Hour of the Attorneys General by Rachel M. Cohen 63 Saving the Planet Goes Local by Ben Adler 68 Taking a Scalpel to Medicaid by Gabrielle Gurley 72 The War on Regulation by Rena Steinzor 77 Trumping State Regulators and Juries by Thomas O. McGarity 82 Driverless Future? by Steven Greenhouse 88 The Hidden Monopolies that Raise Drug Prices by David Dayen 92 Sidebar The War on Facts Hits Prescription Drug Regulation by Jerry Avorn 96 The Incoming Privatization Assault by Jeremy Mohler and Donald Cohen

culture 103 In Search of Obama by Julian E. Zelizer 106 How the Religious Right Led to Trump by Sarah Posner 108 Citizen Activism and the Courts by Jedediah Purdy 111 Why are Men Dropping Out of Work? by Michael Hout Cover art by Victor Juhasz

1

from the Editors

D

onald Trump’s impact on progressive organizing has been remarkable. Trump has the power of Republican control of the House and Senate, and soon conservatives will dominate the Supreme Court as well. But popular sentiment lies elsewhere.

In this issue, Peter Dreier ’s piece explores the breadth and ingenuity of the new resistance movement, much of it the result of a spontaneous, viral surge of citizen activism. In a companion article, E.J. Graff describes the new coalition-building among groups that sometimes have regarded one another with suspicion.

One of the great problems liberals have faced is the persistent division among all the various causes supported by different constituencies. But Trump has healed those divisions. The sheer breadth of his attacks on racial, environmental, labor, immigrant, humanitarian, and democratic concerns has convinced liberals, progressives, and many people who previously weren’t politically active that they need to get to work and to work together. Thank you, Mr. Trump.

These citizen efforts are only part of the larger story of the firewalls Dreier being created to stop Trump before he destroys our democracy. Harold Meyerson offers the definitive story of California as the epicenter of an alternative America. California models an entire suite of opposite policies as well as ways to keep Trump and the far right from reversing them.

In several other states, attorneys general are emerging as centers that can check Trump’s power. Thanks to our federal system, the AGs have their own protected authority and have been at the center of the Graff resistance to Trump’s immigration orders and other policies. Rachel Cohen ’s piece on state AGs explains why they have become especially important today.

Until recently, Republicans looked to have a lock in the 2018 midterm elections. However, as Justin Miller ’s article explains, 23 Republican House districts were carried by Hillary Clinton. And another two dozen are winnable for Democrats, especially given the upsurge of Miller local organizing.

Barack Obama’s presidency may have been frustrating to many progressives, in part because so many liberal initiatives were compromised or stifled entirely. Under Obama, it was easy to get complacent about expectations for integrity and human decency in the White House. The comparison with the Trump presidency is stark. Every day is a reminder of what we have lost.

Several other pieces in this issue address other aspects of popular backlash. Paul Starr explains how popular reaction against Republican health insurance cuts could set the stage for a new Democratic push for reforms building on Medicare. Robert Kuttner looks at elite backlash—the corporate challenges to Trump’s attacks on the American rainbow— and finds it wanting. And David Greenberg argues that Trump has gone after the media because he sees them as institutionally weak and believes he can dominate and diminish them with a continuing volley of attacks. Whether he has underestimated the power of the press remains to be seen.

It’s premature, as well as incautious, to characterize any aspect of the Trump presidency as any kind of blessing in disguise. As Winston Churchill said in similar circumstances, the blessing is certainly well disguised. Still, it’s been a long time since we’ve seen this level of citizen activism, much less unity. The challenge will be to keep this momentum going, to build a progressive America, once Trump is gone.

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co-editors Robert Kuttner and Paul Starr co-founder Robert B. Reich Executive editor Harold Meyerson Senior Editor Eliza Newlin Carney Deputy Editor Gabrielle Gurley art director Mary Parsons managing editor Amanda Teuscher associate Editor Sam Ross-Brown Writing Fellows Rachel M. Cohen, Justin Miller proofreader susanna Beiser editorial interns Matt Leistra, Manuel Madrid, Sadhana Singh Digital Engagement intern Lauren Blommel contributing editors Marcia Angell, Gabriel Arana, Jamelle Bouie, Heather Boushey, Alan Brinkley, Jonathan Cohn, Ann Crittenden, David Dayen, Garrett Epps, Jeff Faux, Michelle Goldberg, Gershom Gorenberg, E.J. Graff, Bob Herbert, Arlie Hochschild, Christopher Jencks, Randall Kennedy, Bob Moser, Karen Paget, Sarah Posner, Jedediah Purdy, Robert D. Putnam, Richard Rothstein, Adele M. Stan, Deborah A. Stone, Michael Tomasky, Paul Waldman, Sam Wang, William Julius Wilson, Matthew Yglesias, Julian Zelizer Publisher Amy Marshall Lambrecht Director of Business Operations Ed Connors Development Manager Justin Spees Publishing assistant Stephen Whiteside board of directors Michael Stern (Chair), Sarah Fitzrandolph Brown, Lindsey Franklin, Jacob Hacker, Stephen Heintz, Robert Kuttner, Mario Lugay, Ronald B. Mincy, Miles Rapoport, Janet Shenk, Adele Simmons, William Spriggs, Paul Starr Fulfillment Palm Coast Data subscription customer service 1-888-MUST-READ (1-888-687-8732) subscription rates $19.95 (U.S.), $29.95 (Canada), and $34.95 (other International) reprints permissions@prospect.org

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Creative Destruction How to Start an Economic Renaissance

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Prospects

The Republican Health-Care Unraveling: Resist Now, Rebound Later

by Paul Starr

I

magine if Donald Trump had been a genuine populist and followed through on his repeated promises to provide health insurance to everybody and take on the pharmaceutical and insurance industries. Populists in other countries have done similar things, and Trump might have consolidated support by emulating them.

Of course, Trump’s promises about health care weren’t any more genuine than his promises about Trump University. But even if he had been in earnest, he would have still faced a problem. Unlike right-wing populists elsewhere, Trump did not come to power with a party of his own or well-developed policies. He came tethered to the congressional Republicans, entirely dependent on them to formulate and pass legislation.

That dependence will likely complicate Trump’s ambitions in such areas as trade policy. But nothing so far has made more of a mockery of Trump’s populism than the health-care legislation introduced in early March by Paul Ryan and the House Republican leadership and fully backed by Trump.

The Ryan bill is abhorrent for many reasons. It calls for a massive tax cut for people with high incomes, while costing millions of other Americans—24 million by 2026, according to the Congressional Budget Office—their health coverage. It would turn Medicaid from a right of beneficiaries into a limited grant of funds to the states,

and it pays for the tax cuts for the rich with cuts in health care for the poor. The bill’s reduced tax credits for insurance make no adjustment for low income, while some credits would go to people with incomes over $200,000.

But what is most amazing about the bill is how badly it treats constituencies and states that voted for Trump and the GOP. The changes it calls for in the individual insurance market would hammer older people (those between the ages of 50 and 64) and residents of red states and rural areas.

Republicans appear to be so determined to cut taxes on top incomes that they are willing to sacrifice the interests not only of the poor— we knew that—but of many of their own voters. The same pattern is evident in the federal budget that Trump has proposed.

While the whole effort to “repeal and replace Obamacare” poses an enormous political risk for Republicans, it presents an equally significant political opportunity for liberal and progressive Democrats.

I am not talking only about shortterm resistance to the Republican rollback of the Affordable Care Act. Now that Republicans have shown their true hand on health care, they are creating new possibilities for long-term progressive organizing and policy alternatives.

The struggles to achieve health insurance for all in the United States have long suffered from one fundamental political handicap.

The uninsured and underinsured

(people enrolled in plans riddled with exclusions and limits) have been an inchoate population without any organization or voice of their own. The combination of measures America adopted in the mid-20th century produced a large, protected public: employees with good fringe benefits, seniors and the disabled with Medicare, veterans, and the low-income groups

be concentrated among 50- to 64-year-olds. That’s primarily because the bill would allow insurers to charge 60-year-olds five times as much as 20-year-olds, instead of the 3-to-1 ratio in the ACA . (The adjustments for age in the bill’s tax credits do not come close to offsetting the higher premiums; a last-minute amendment, allowing increased tax deductions

The reaction against GOP moves could boost progressive organizing and bolder reforms. that qualified for Medicaid. The people who were left out—mainly low-wage workers, people in parttime work, the unemployed, and individuals with pre-existing conditions—did not share a common identity or cohere politically.

But the Republican effort to undo the ACA could provide the long-missing organizational impetus. It is one thing to go without health insurance; it is another thing to have that insurance threatened or taken away.

It also matters who would be losing coverage. Overall, according to the CBO, the Ryan bill would raise the number of uninsured in 2026 to 52 million, or 19 percent of the nonelderly population (compared with a projected 10 percent under the ACA). But the uninsured under Ryan’s legislation would

for medical expenses, provides little or no benefit to low-income people but may be changed in the Senate.) When twenty-somethings don’t have insurance, many give it little thought because they may not expect to need medical care. But older people aren’t so oblivious.

Take away their health insurance, and they are going to be angry.

Besides pushing a lot of older people out of coverage, the Ryan bill is brutal on states with high health costs because it would provide a flat tax credit that doesn’t vary according to geography (unlike the ACA , which provides greater subsidies in high-cost states to make coverage affordable). The Ryan bill’s tax credits are substantially smaller on average than those in the ACA , but people in high-cost states would

Spring 2017 The American Prospect 5

Prospects

Blocking Trump’s Chaos Option

If Trump and the Republican Congress cannot pass legislation this year, they do have a fallback option. They can claim that the ACA is collapsing and make sure that it does. Then they can return to health-care legislation later and say they have no choice except

6 WWW.Prospect.org Spring 2017

to repeal Obamacare. This is the option Trump at times has seemed to prefer. “Let it be a disaster, because we can blame that on the Dems,” he told the National Governors Association on February 27.

“Let it implode, then let it implode in 2018 even worse. … Politically, I think it would be a great solution.”

When Trump talks about Obamacare imploding, he is talking not about the entire program (although he seems to think so), but rather one specific part: the insurance exchanges in the individual market. The danger he and other Republicans invoke is a “death spiral”—a situation where rising premiums drive the

healthy out of the market, forcing premiums up and more healthy people out, until the market fails.

The exchanges are nowhere near that point. Although rates in the exchanges did rise sharply in 2016, they rose to the level originally projected by the CBO (premiums had come in lower than expected earlier). Moreover, the vast majority of individuals who buy insurance in the exchanges receive subsidies that cap the cost of their premiums; many of them also receive subsidies covering a share of deductibles and co-pays. Consequently, as the CBO and other studies have found, the exchanges have some protection against a death spiral—as long as the subsidies are fully funded and the individual mandate is enforced.

But the insurance exchanges could soon face a dire crisis because the Trump administration has created uncertainty for both insurers

and enrollees about the survival of the program and enforcement of the mandate. If the administration doesn’t enforce the mandate—or if Congress eliminates the penalty for failing to insure, as the House bill would do for this year—the incentive for healthy people to pay for coverage will fall, threatening the viability of the market.

Some damage has already been done. As soon as the Trump administration came into office, it canceled outreach efforts in the final phase of the open-enrollment period for 2017. Since individuals who enroll early tend to be those who know they will have high medical costs, while late enrollees are a healthier group, the cutoff of late outreach not only reduced total enrollment but also led to a higher-cost pool. The Trump administration is also proposing to shorten the open-enrollment period for 2018.

Other measures the administration favors could encourage insurers to stay in the market, albeit with mixed effects on enrollees. The administration wants to tighten up special enrollment outside of the open-enrollment period, which may well be justified; it also proposes requiring people to pay any unpaid premiums before enrolling for the next year. In a step that would help keep premiums down, the administration has encouraged states to seek waivers to develop reinsurance programs for the individual market, as Alaska has already done.

(Reinsurance spreads the cost of high-cost cases across the entire market.) Alaskans buying insurance individually faced a possible 40 percent rate increase because of 37 very high-cost cases, accounting for one-quarter of claims. The reinsurance measure adopted by the state, using funds from an existing premium tax, kept premium increases by Premera Blue Cross, the sole insurer in Alaska’s exchange, to 9.8 percent.

Insurance companies need to indicate by June whether they will offer coverage in the exchanges for 2018. Uncertainty about the rules is a recipe for chaos. If they believe the mandate will not be enforced, they are likely to jack up premiums or withdraw entirely from the market. About a third of the exchanges, mainly in rural areas, have only one carrier offering coverage this year; additional withdrawals for 2018 could create just the kind of crisis that Trump and the Republicans need as a pretext to undo the ACA .

This problem has a ready solution. If Republicans in Congress do not replace the ACA for the coming year, the Trump administration needs to make clear that it will enforce the law as it stands for 2018 and fully fund the program (including cost-sharing subsidies).

Moreover, Republicans cannot plead there is no way to strengthen the individual market. The Ryan bill contains a Patient and State Stability Fund of $100 billion over ten years that the CBO believes states would use largely to cover high-cost enrollees in the individual market and thereby prevent a death spiral. In the absence of comprehensive new legislation, Congress should provide those funds in a separate measure to stabilize the market for 2018. The Republicans cannot blame a collapse on Democrats when they have it in their power to maintain coverage for the millions of people who depend on the market now.

The Next Progressive Health Agenda

Even as they resist the Republican rollback of the ACA and Medicaid, Democrats should be thinking about new initiatives in health care. No doubt the next steps will depend in part on what Trump and the Republicans end up doing.

In the wake of federal legislation, many of the critical decisions in the short run may move to the states. But Democrats cannot limit themselves to defensive efforts to salvage the ACA at either

m phillips / istock by get t y

face especially sharp increases in premiums because of the way the bill structures its tax credits.

According to an analysis by the Center on Budget and Policy Priorities, Ryan’s bill would reduce premium tax credits by more than half in Alaska, North Carolina, Oklahoma, Alabama, Nebraska, Wyoming, West Virginia, Tennessee, Arizona, South Dakota, and Montana. The net cost of insurance would rise dramatically as a result. Notice something about those states? They elect a lot of Republicans—or at least they did.

Within states, rural areas generally have higher premiums than urban areas. So the flat tax credits provide less help in affording insurance there, too. The big Medicaid cuts that Republicans are calling for will also have a severe impact in rural areas. The resulting declines in coverage will force some rural hospitals and clinics to close, with spillover effects on middle-class people who depend on the same facilities and services.

Ryan and other House Republicans have touted one CBO finding: After initially increasing insurance premiums, their bill would reduce premiums after 2020 compared with the ACA . But that’s because their measure would force so many older people to drop coverage that the average age of the insured population would drop.

It’s nothing to be proud of. Trump and the Republicans promised more coverage and lower costs when they replaced Obamacare. It is now transparently obvious that they can’t deliver on that promise and that they are willing to deny health insurance even to millions of people who voted for them.

Prospects

the federal or the state level. They need to think about a more attractive national agenda in health care that reflects the lessons of the ACA and new political realities.

The coming national Democratic debate is going to focus on extending Medicare—to whom, how quickly, and under what rules will be the questions. The strategy for universal coverage in the ACA relied on the extension of Medicaid for the poor, but the limitations of that approach should now be clear. In its 2012 health-care ruling, the Supreme Court effectively made it impossible to use Medicaid as a foundation for universal coverage. As a mixed federal-state program, Medicaid affords states the opportunity to limit coverage, and the ACA experience has shown how far red states will go in doing that. Republicans may also succeed in eliminating Medicaid’s status as an entitlement, which will be hard to restore.

As a national program with deeper public support as an entitlement and no role for the states, Medicare does not suffer from these problems. When Medicare was enacted in 1965, its backers hoped to use it to cover other groups besides seniors, and in 1972 Congress did extend it to the disabled and patients with endstage renal disease. (The disabled become eligible for Medicare two years after they qualify for federal disability insurance, a delay that leaves many people with high costs in the individual market.) But the expansion of Medicare then stopped, and in the 1980s Democrats in Congress obtained Republican support for incremental expansions of Medicaid to cover low-income pregnant women and young children. This was the path that led to the ACA’s further Medicaid expansion, a strategy that the Supreme Court and Republicans have now brought to an end.

Many people will equate an expansion of Medicare with a “single-payer” plan. But even Medicare-for-all would not be a single-payer system since about

one-third of current Medicare beneficiaries use the program to buy coverage in a private Medicare plan. Medicare today is a marketplace—but a marketplace with a dominant public plan and not just a “public option,” which might turn out, if badly designed and established separately from Medicare, to be a relatively small and weak player in the market.

Medicare-for-all faces two enormous obstacles. Moving everyone under age 65 into Medicare would require a huge increase in taxes; employees who now receive health care as a fringe benefit would inevitably look at those taxes as an additional burden, even if reformers try to assure them that their wages would rise once health care was financed by taxes.

Moreover, many seniors insist that Medicare is their program, and they fear—or can be made to fear—that extending the program to others will jeopardize their coverage. They also see Medicare

a program that would be partly financed by taxes and that would automatically provide a basic level of coverage (no mandate needed), which those in midlife could increase by paying income-related premiums (as seniors do now).

Midlife Medicare would have advantages for both its beneficiaries and those age 49 and below remaining in the individual insurance market. The enrollees in Midlife Medicare would benefit from the countervailing power that Medicare exercises. Medicare pays provider rates that are substantially below those paid by private insurers in the non-Medicare market, yet providers accept Medicare patients, who consequently do not face the “narrow networks” in most plans in the individual and small-group markets. Americans who continue to have employer coverage will have the assurance that if they need to retire early, they will have health insurance as good as they would now get at

An additional step to relieve the burden on the individual market would be to eliminate the two-year delay in the eligibility of the disabled for the existing Medicare program. Combining this step with Midlife Medicare and a strong reinsurance program would stabilize and make coverage in the individual insurance market significantly less expensive. With these measures in place, the system could be more or less workable even if Republicans eliminate the individual mandate in favor of a 30 percent premium surcharge on individuals who fail to maintain continuous coverage (as the Ryan bill would do). Although I don’t think that would be a good thing to do, I also don’t think Democrats want to focus their next health agenda on restoring the individual mandate.

Formulating a new health-care agenda requires acknowledging that although the ACA has done much good, it has not worked out

The coming national Democratic debate is going to focus on extending Medicare—to whom, how quickly, and under what rules. as an earned benefit, and many of them resist extending it to people who they believe haven’t earned it.

But there is a way forward: create a new part of Medicare for the older population below age 65— the older population who have also earned Medicare coverage by paying taxes and who are directly threatened by current Republican legislation. My name for this new program is “Midlife Medicare,” which would be open to people age 50 to 64 not otherwise insured (for example, by an employer). Seniors would be more likely to accept this extension than any other; for one thing, AARP welcomes as members all Americans 50 years of age and older. Earlier versions of this idea have been referred to as a “Medicare buy-in”; I have in mind

age 65. Midlife Medicare is also a response to the rising death rates and declining health that economists Anne Case and Angus Deaton have demonstrated among non-Hispanic whites in midlife.

Moreover, by pulling the 50- to 64-year-olds out of the individual insurance pool covering people 49 years of age and under, Midlife Medicare would make coverage for the younger population substantially cheaper. The younger enrollees in the individual market would, in effect, no longer be shouldering part of the cost of the more expensive 50- and 60-yearolds. This is a much better way to reduce rates for 20-year-olds than the Republicans’ proposal to let insurers charge 60-year-olds five times as much as young adults.

as well as its supporters originally hoped. The Supreme Court and the red states have limited how far the strategy could go in achieving health care for all. High deductibles and narrow networks have meant that many people are unhappy with the coverage they are receiving. Trump and the Republicans cynically played on public dissatisfactions, suggesting they would provide something better when, in fact, their alternatives would intensify the problems Americans face. We need to move in a more promising direction that takes into account the difficulties that progressive reform has long faced in health care. Midlife Medicare could be a big next step toward a system that works better for everyone.

—March 21, 2017

Spring 2017 The American Prospect 7

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notebook

Corporate America and Donald Trump Don’t mistake the corporate embrace of diversity for defense of democracy.

by R o b e rt Kuttn er

ja son schneider

A

re big corporations among the firewalls protecting the Republic from Donald Trump? It would be comforting to think so.

Silicon Valley has risen up against Trump’s anti-Muslim attacks. More than 100 of the most prominent tech giants, from Microsoft to Tesla, signed an amicus brief challenging Trump’s immigration orders. Starbucks made a point of announcing that the company would hire 10,000 refugees.

The Super Bowl ads were a veritable festival of anti-Trump sentiment, some subtle, others surprisingly direct. Budweiser

celebrated the dreams of its immigrant founder. An Airbnb ad declared, “We believe no matter who you are, where you’re from, who you love, or who you worship, we all belong.”

84 Lumber’s astonishing commercial followed a young Mexican girl and her mother trying to make it to America, on foot, in a boxcar, and on a flatbed truck, finally finding a door through a wall. Fox refused to air the full, six-minute version, but did run a cut-down one-minute spot whose message was unmistakable.

Google’s ad depicted a rainbow of families of different ethnicities,

Corporate America continued voting with its feet against states that display bigotry. North Carolina, epicenter of both anti-transgender policy and suppression of voting rights, keeps losing convention business, sports events, and concerts.

Some 41 large companies have poked Trump in the eye by donating directly to Planned Parenthood, including not-especiallyprogressive outfits like American Express, both Coca-Cola and Pepsi, Nike, Ford, and Verizon.

And Nordstrom, Macy’s, and several others have stopped carrying Trump family brands.

Professional sports teams with large numbers of black athletes took pains to distance themselves from Trump. Several players from the Super Bowl champion New England Patriots, a team with longstanding ties to Trump, boycotted the team’s White House visit.

A handful of franchise owners and officials have expressed their personal displeasure at Trump.

John Angelos of the Baltimore Orioles said that Trump was not welcome to throw out the first ball unless he apologized for all the offensive things he’s said.

What gives? Is corporate America giving the commander in chief a big middle-finger salute?

Before we embrace our

religions, and sexual orientations, ending with a party and a “Welcome Home” cake. Take that, Steve Bannon.

Several of America’s largest corporations, including Apple and Google, have defended transgender people. In a statement, Apple publicly attacked Trump’s repeal of guidelines on transgender bathroom use in schools: “We support efforts toward greater acceptance, not less, and we strongly believe that transgender students should be treated as equals.”

Target endorsed the proposed federal Equality Act, which adds protections to LGBT people.

improbable saviors too ardently, consider several caveats. Where are the corporations on the economic issues? Where they usually are, of course. They now have a plutocrat champion in the White House who makes William McKinley look like a socialist.

If you unpack the issues where big corporations are crossing Trump, they are the cultural ones—immigrant rights, transgender rights, reproductive rights, support for a multicultural America. This is progress, of a sort. It does serve as a counterweight to Trump’s cultivation of the most vicious forces of the far right.

However, on the core issues that

Spring 2017 The American Prospect 9

notebook

have defined America’s slide into reactionary economic policies, corporate elites are lined up at Trump’s trough— to double down on the same policies they have been aggressively pushing since Ronald Reagan.

While America’s biggest companies, especially those with reputational concerns, are singing kumbaya with a multicultural rainbow, these same companies are happily taking the tax cuts, the deregulation, and the anti-labor laws. Even our liberal-ish friends in Silicon Valley want nothing to do with regulatory constraints, much less labor protections.

On some key policy issues, corporate America has proved to be surprisingly impotent. Three of the largest players in America’s health-industrial complex—the hospital industry, the insurance industry, and the American Medical Association—took strong stands against the Republican health bill, and lobbied against it. None of that cut any ice. How come?

Maybe they didn’t lobby all that hard. The bill includes some nice perks for insurance executives. It repeals the ACA’s limits on tax-deductible executive pay, intended to limit the ability of companies to pass along windfall profits from their expanded customer base to corporate brass.

The drug companies, meanwhile, are salivating at the prospect of even less regulation under Trump’s FDA .

Likewise the bankers, and the energy industry, and the telecom giants.

So companies with direct consumer exposure, such as AmEx or Verizon, can throw a few bucks at Planned Parenthood, while they chuckle all the way to the bank, buoyed by the prospect of lower taxes, less regulation, weaker unions, and right-wing judges who will overturn what remains of health, safety, consumer, labor, and environmental regulation.

On a handful of issues, there is convergence between corporate self-interest and common decency.

Corporate America is liberal on immigration, but for all the wrong reasons.

Back when Republicans and Democrats were working on a compromise path to citizenship for undocumented workers, corporations were among the biggest backers. Imagine—all those

10 WWW.Prospect.org Spring 2017

low-wage workers under strict legal constraints to stay out of trouble. Yum. Trump has appointed climatechange deniers to key energy and environment posts. Where is corporate America on that? A small segment of American industry is making money off the green economy, but the big fossil fuel companies are back in the saddle, thanks to Trump. And Walmart, the number one predator when it comes to mistreating workers, tries to change the subject by being the greenest robber baron in town. Where is the corporate pushback against the Republican war on science?

Several of the same corporations that took progressive stands on cultural issues, such as AmEx and Verizon, are also supporters of the American Legislative Exchange Council (ALEC), which promotes right-wing policies at the state level. Among the core items in ALEC’s playbook are strategies to suppress voting participation. Did somebody say black lives matter?

This corporate support of the Tea Party base has served both to strengthen the infrastructure of the far right and to undermine the living standards and economic security of ordinary people. The somewhat bizarre alliance between the culturally liberal Wall Street right and the culturally reactive Tea Party right paved the way for Trump. Corporations undercut pay and job security for workers, while they embraced multiculturalism. The Tea Party nourished the resentment against both.

There is a perverse and paradoxical symbiosis here. Corporate America and its Republican allies execute economic policies that make daily life more arduous for ordinary people.

But they burnish their image by supporting liberal social causes like immigrant rights and protections for transgender people. And then the conservative social base gets mobilized against both trends.

Somehow, the corporations escape the wrath of working-class America.

That gets deflected onto liberals, immigrants, blacks, and gays. Meanwhile, Democrats have been losing winnable elections because progressive cultural policies are easier for them to embrace than aggressively

anti-corporate pocketbook policies.

Going left on multicultural issues while largely failing to articulate a politics of class uplift cost Democrats the 2016 election.

Trump’s economic populism is, of course, fake. Four decades of an increasingly virulent business elite paved the way for it. On no significant issue are Trump’s pocketbook politics at odds with those promoted by big business.

Is this too harsh? If you take a close look at the good-guy corporations on issues other than identity politics, here’s what you find: There are a small number of idiosyncratic corporations led by genuine progressives, such as the original Ben and Jerry’s, and God bless them. We also have corporations that are various shades of green, ranging from completely bogus green-washing, to entrepreneurs who have found ways to profit from marketing clean technology and a variety of renewable forms of energy.

Then we have the larger movement for corporate social responsibility, and its international counterpart, the voluntary movement to improve working conditions and environmental standards, by promoting labels for a broad range of products and processes. These range from fair-trade coffee to sustainable forestry to decent labor conditions for garment workers in Bangladesh, and dozens of others.

Take a close look, and these certified goods represent a small fraction of total production, and they are losing more ground than they are gaining.

Indeed, if you go back half a century, the truth is that progress was made on the entire front of environmental, labor, public health, and safety issues when citizens mobilized and legislatures passed mandatory laws—not via corporate voluntarism. For two decades after World War II, business got along with unions, not because elites had had a change of heart but because of a power shift. The same was true of the spate of environmental laws enacted in the 1970s.

In the famous formulation of Lyndon Johnson, who was very skeptical when his Vietnam advisers told him that America needed to win hearts and minds, if you get them by

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the [private parts], their hearts and minds will follow. This is surely true, in spades, when it comes to reining in corporate excess.

Yes, it’s great to have some class traitors among your allies, but it’s no substitute for a real movement.

But what about democracy itself?

There is a whole school of democratic theory that associates liberal democracy with the spread of economic laissezfaire. Cheerleaders for freer markets like both Friedmans (Milton and Tom) have insisted that democracy and capitalism logically go together.

Going back to the days of Adam Smith, we’ve heard that free markets and free peoples reinforce one another. Supposedly, capitalism promotes democracy, because of common norms of transparency, rule of law, and free competition—for markets, for ideas, for votes.

Democracy and capitalism are intimate allies. So when an existential threat to democracy like Trump arises, the captains of industry will surely come together to defend core democratic institutions. Oh, did I miss that?

The nexus between free-market capitalism and democracy sounds plausible, until one examines the actual relationship throughout history.

Slavery was a quintessentially commercial enterprise. Abolitionists in liberal Massachusetts, center of the 19th-century textile industry that depended on cheap Southern cotton, spoke scathingly of the alliance between the loom and the lash.

In the 20th century, capitalists coexisted nicely with dictatorships, which conveniently created friendly business climates, cut taxes, and repressed independent worker organizations. Western capitalists have enriched and propped up third-world despots who crush local democracy.

Western extractive industries have worked with dictators to plunder natural resources, pay kickbacks, exploit corruption, and give almost none of the benefits to local people.

Communist China works hand in glove with capitalist business partners to destroy free labor unions and to preserve the political monopoly of the party. Vladimir Putin presides over a

Despite the touchy-feely corporate commercials about America being a big, happy, diverse family, there is far more that unites business with Trump than divides them.

rigged brand of capitalism and governs in harmony with approved kleptocrats. Western businesses helped work to overthrow insurgent democratic regimes that threatened their financial interests, from Chile to Iraq, and cut deals with dictators from Kazakhstan to the Congo. International companies and bankers promoted capitalism in post-Soviet Russia. They didn’t exactly promote democracy.

During the shabbier periods of American history, our government has protected purely commercial interests by sending in the Marines or fomenting coups. Today’s global backlash, in both its populist and religiousfundamentalist forms, is partly the result of the less-savory face of American corporate power overseas.

General Augusto Pinochet took his economic advice from los chicos de Chicago. His ultra free-market economic advisers got a lot of publicity for counseling the dictator on how to deregulate the Chilean economy. They were notably silent on Pinochet’s brutal repression of any political opposition.

In the 1930s, big business found it congenial to work with Mussolini, Hitler, and Franco. Adam Hochschild’s new history, Spain in Our Hearts, recounts how Texaco, in violation of the Neutrality Acts, literally helped turn the tide for Franco’s fascists against the Spanish Republic—not only by refusing to sell the Republic oil while generously supplying Franco’s forces, but also providing Franco’s Nazi ally with intelligence on the Republic’s oil sources so the Luftwaffe could sink the tankers.

Large German corporations, from Deutsche Bank to Thyssen, Krupp, and I.G. Farben, assumed Hitler could be worked with to serve common interests and would moderate once in office.

When the Fuehrer only became more vicious, the German corporate elite went along for the ride, and got quite rich on rearmament until the unfortunate miscalculation of World War II. Several American corporations briefly got into trouble for helping Hitler. Even after war was declared, Ford and GM subsidiaries in Germany continued to operate. ITT and RCA , via intermediaries in Switzerland, continued to collaborate with

their German partners, Siemens and Telefunken. History shows that when circumstances demand awful choices, the logical conclusion of the corporate state is fascism.

Trump is not Hitler. But if we think

corporate America will serve as a bulwark against his excesses, we are as delusional as Trump is.

When right-wing Republicans went after the fundamentals of democracy, by suppressing the right to vote, or shutting down the government over budget disputes, or refusing to even hold hearings on dozens of judicial nominations, we didn’t see any warm and fuzzy ads from Google, Apple, or Starbucks.

Donald Trump calls out particular corporate executives when that is expedient, but his is a quintessentially corporate regime. With few exceptions, corporations conclude that Trump, weirdness and all, serves their interests. They are bankers and billionaires first, citizens a distant second.

Not only do corporations fail to promote democracy; the converse is also true. Both at home and abroad, democracy has expanded by limiting the power of business. Constraints on corporate abuses have been necessary to give ordinary people more liberty and security to pursue a decent livelihood. When that project fails, dark forces are often unleashed.

The political scientist Yascha Mounk makes a useful distinction.

The problem threatening democratic practice today is not just illiberal democracy—governments with the form but not the substance of real democracy, from Turkey to Hungary to Russia and the dictatorial urges of Trump Tower. The problem is also undemocratic liberalism.

By this Mounk means liberalism in its European sense, as ultramarketization that narrows the space for democratic deliberation. All the major trade deals of the past two decades and the austerity rules of the European Union add up to what the economist Dani Rodrik calls hyperglobalization. The goal is to diminish the capacity of the democratic nationstate to housebreak capitalism, and it succeeds all too well.

Mounk’s point is that undemocratic

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liberalism and illiberal democracy feed on each other, by leaving people who are not part of the Davos set far behind.

So the challenge for progressives is not to make better alliances with corporations, but to restore democratic constraints on corporate power.

In the late 1990s, a British NGO called Publish What You Pay (PWYP) devised an ingenious strategy for going after the bribery paid by Western extractive industries to third-world dictators. It pressured these Western corporations to disclose the bribe payments. A few, beginning with BP, agreed. Due to persistence and luck, PWYP even managed to get a mandatory disclosure provision included in the Dodd-Frank Act. Companies now had to disclose such payments in their annual filings with the Securities and Exchange Commission.

The regulations carrying out this provision were among the very first to be scrapped in Trump’s war against regulation. You can just imagine how many corporations tried to block the repeal, in their splendid civic defense of the transparency that is allegedly common to efficient markets and democracy. That would be none.

Thus far, Donald Trump has assaulted American democracy in several respects. He has stirred up hatred by associating his presidency with far-right haters. He has done everything in his power to undermine the free press. He has sought to use decrees to undermine the rule of law. Substantively, his policies have escalated the war against a balanced, socially decent form of capitalism.

Some of corporate America has resisted the pure hate part, and for this we can offer one cheer. But let’s not kid ourselves.

Despite the touchy-feely corporate commercials about America being a big, happy, diverse family, there is far more that unites business with Trump than divides them. At the end of the day, we need the same movement to keep Trump from destroying basic democracy and to keep business elites from destroying a decent brand of capitalism. We will defend and redeem American democracy the old-fashioned way, by mobilizing ordinary citizens.

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Mass Incarceration and the Achievement Gap The impact of imprisoned parents on children shows how criminal justice policy is education policy.

by L eila Morsy

T

he United States’ criminal justice system incarcerates at a rate that is unmatched in the modern world. There are today approximately 700 prisoners per 100,000 residents.

The former Soviet republic of Turkmenistan follows, with 600 prisoners per 100,000 residents. South Africa, with its history of racial hierarchy, imprisons 300. Canada’s rate is about 100. The American incarceration rate wasn’t always this high. In the early 1970s, the rate was less than 170. Since then, it has grotesquely ballooned.

Black parents, especially black fathers, are incarcerated at an exceptionally high rate. For every 100,000 black men, more than 2,700 are imprisoned. Excessive sentencing for minor crimes and our racially discriminatory “war on drugs” policies that began in the 1970s are largely to blame for the incarceration explosion. The reimprisonment of released offenders for technical probation violations or for the inability to pay escalating fines and court fees has exacerbated the trend. Absurdly, released prisoners are in many cases excluded—either formally or informally—from employment in the legal economy, but can be re-imprisoned for violating the terms of release by failing to hold a job.

All of this has consequences for children, who of course have committed no crime. Our unjustified incarceration rates should be of urgent concern to anyone interested in narrowing the educational achievement gap—the persistently lower academic and behavioral performance of black pupils than white pupils, even when their demographic characteristics seem to be similar. The mass incarceration of African American parents damages their children, whose academic achievement, behavior, and health become worse when

their parents are incarcerated.

In studies that I and my co-author, Richard Rothstein, reviewed for our report “Mass Incarceration and Children’s Outcomes,” differences between children of non-incarcerated parents and those of incarcerated parents show up in comparisons of otherwise similar children. Researchers accounted for many characteristics, comparing children of the same race, gender, and parental education. The studies we reviewed took into account a large number of other factors such as children’s closeness to their father, neighborhood poverty, and other stressful life events such as whether the child of the incarcerated parent was ever expelled from school or had attempted suicide. After accounting for all these characteristics and many more, there remained a difference in outcomes for children of incarcerated parents. In fact, the statistical sophistication of the studies reasonably eliminates the possibility that children’s decline across a range of areas is attributable to socioeconomic or demographic characteristics of the children rather than to their parents’ present or previous incarcerations.

It is more common for children of

incarcerated parents to drop out of school than it is for children of nonincarcerated parents. This is especially true for young teenage boys with a mother behind bars. And such boys are even more likely to drop out of school if they themselves have been incarcerated.

Children with incarcerated parents are much more likely to have attention deficit hyperactivity disorder (ADHD), more likely to suffer from developmental delays, and are more likely to have behavioral problems.

Children of incarcerated fathers suffer from worse physical health:

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They are more likely to have migraines, asthma, and high cholesterol. Their mental health is also worse. Children of incarcerated fathers are more likely to suffer from anxiety, depression, and post-traumatic stress disorder.

The chart below summarizes the increased likelihood that children of parents who have ever been incarcerated will have various negative outcomes, compared with the likelihood that children of never-incarcerated parents will have them.

Children of incarcerated parents lose faith in public institutions. In all but two states, convicted felons are prohibited from voting while in prison; in some states, ex-felons are denied the vote even after they have served their sentences. In many states, only gubernatorial or court action can reverse this disenfranchisement.

When children witness their parents’ disenfranchisement, their engagement in the democratic process and social institutions becomes eroded.

Children of parents who have been incarcerated are, as adults, less likely to vote, less likely to trust the government, and less likely to engage in community service.

There are several possible explanations of why parental incarceration might have these surprisingly strong consequences.

Children of incarcerated parents are at greater risk of becoming poor and experiencing economic instability. Before being incarcerated, more than half of all inmates were the primary breadwinners for their families.

But prisoners make little or no money, so incarceration usually means a sharp decline in (or the complete loss of) family income. This financial distress continues after prisoners are released because finding a job can be difficult. A criminal record can formally and informally bar former prisoners from employment. African American men with no high school education who have been incarcerated at some point in their lives earn substantially less than African American men with similarly low education levels but without a criminal record.

After a parent is incarcerated, the remaining parent is likely to become

more stressed than before his or her partner was incarcerated. The parent who remains at home is less able to pay attention to his or her child. Children of incarcerated parents are likely to be unsupervised more frequently than children of non-incarcerated parents.

When a father is incarcerated, the remaining parent, the mother, may need to work longer hours, making her less available to her child.

When the parents’ relationship turns unstable because of the incarceration, children are more likely to act out in class. Their misbehavior can lead them to get suspended or even expelled, and this frequently deteriorates into delinquency.

When an incarcerated parent is released and returns home, the family must reorganize once again. There is sometimes more conflict than cohesion among family members. Children experiencing such dynamics can act out, or become depressed.

Children of incarcerated mothers are especially likely to end up in foster care. The increase in rates of maternal incarceration has added about 100,000 children to the fostercare system, close to one-third of the increase in the number of fostered children between 1985 and 2000. In general, children in foster care do worse in school than socioeconomically and demographically similar children who live with a parent. They are absent from school more and have more behavioral problems than

Children of incarcerated parents must move more, as the remaining parent typically can no longer afford the family’s previous home.

Children of incarcerated parents are at greater risk of certain health problems Percent increase in likelihood of condition relative to other children 72%

PTSD 51%

Anxiety High cholesterol

31%

Asthma

30%

Migraines

26%

ADD/ADHD

48%

Marijuana use

43%

Depression

43%

Behavioral problems

43%

Developmental delays

23%

Learning disabilities Deliquency

22% 10%

■ Children with

incarcerated fathers

■ Children with

either parent incarcerated

children not in foster care.

Prisons are typically unfriendly environments for children visiting a parent. There is usually no place to play. They may have to wait a long time before being permitted to see a parent. Sometimes, physical contact between child and parent is limited or even prohibited. Such an austere, restrictive environment can be traumatic for a child.

Stress, especially the kind of excessive and prolonged stress that occurs when a parent is incarcerated, leads to deterioration in mental health. Anxiety, depression, and post-traumatic stress disorder are common manifestations of such toxic stress. Children also suffer physical health consequences: For example, many children of incarcerated parents develop asthma. Indeed, children who grow up under stressful conditions have more sympathetic nervous activity— this is the system that stimulates our fight-or-flight response and what we do in response to a threat—including elevated blood pressure. They have more activity in their hypothalamic pituitary axis, which regulates cortisol, a hormone released in response to stress. This disrupts their prefrontal cortex activity, sympathetic nervous activity, and metabolic system, causing diminished cognition, less regulated behavior, as well as worse health.

In institutions that are meant to be socially supportive, such as schools, families and children often keep a parent’s incarceration hidden for fear of social stigmatization. This means fewer opportunities for children to benefit from resources that are important for social integration. Relationships fracture, including the structures of family and home. Children of incarcerated parents must move more, as the remaining parent typically can no longer afford the family’s previous home and must either find a new, less costly, and usually less-adequate place for the family to live; move in with relatives; or place children in foster care. This can lead children to misbehave, become suspended, or even be expelled from school.

These relationships between incarceration and family harm can become cyclical and cumulative: A parent is

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incarcerated. Family income drops.

Housing stability is eroded. Stress increases. Children do worse in school and their health deteriorates. They drop out or are expelled. They become delinquent or homeless or end up in foster care. Eventually, they may be incarcerated and their own children suffer the same consequences they have faced.

In the last days of his term, President Obama responded to this discriminatory sentencing with a stepped-up rate of commutations. But such presidential action is unlikely to continue during the Trump presidency.

It is also insufficient: Most prisoners are in state facilities, not federal ones.

In 2014, more than 700,000 prisoners nationwide were serving sentences of a year or longer for nonviolent crimes.

More than 600,000 of them were in state, not federal, prisons.

“Stop and frisk” practices by local police, advocated by President Trump, are not federal policies, and Trump has little influence over them—other than signaling that he supports tougher policing. But reform of local

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No Sunday Picnic: Members of Applewood Creek Girl Scout troop 884 leaving the Allen Correctional Institution in Lima, Ohio, after visiting their fathers in prison.

and state government policies and practices that result in excessive and discriminatory incarceration is no less urgent now than it was before a Trump administration.

State policymakers have great reach to change criminal justice policies that will improve how children do in school. Educators can inform parents, students, and communities about the harmful effects of parental incarceration on children. By organizing themselves and collaborating with other advocacy organizations, educators are in a position to press their local and state government for criminal justice policy reforms. Educators should embrace reform as a priority for advocacy.

When prisoners are released, social support and family-based interventions can help prevent family strain and breakdown, and foster reunification of families. In Hawaii, for instance, a law requires the Department of Public Safety to attenuate the impact of incarceration on children by providing parenting classes for inmates, keeping inmates

incarcerated within close geographical proximity to their families, hosting family days with extended visiting hours, and allowing inmates to video-conference with their children. Girl Scouts Beyond Bars provides support to girls with incarcerated mothers, including promoting connections between mother and daughter, planning for a mother’s reentry, and connecting daughters of incarcerated mothers to community services.

A program for incarcerated fathers, the National Fatherhood Initiative’s InsideOut Dad, has shown positive results in helping incarcerated fathers to remain connected to their families and to improve their parenting skills. The Children of Incarcerated Parents Bill of Rights was developed with the purpose of incorporating a focus on children in criminal justice reform.

In fact, strong familial bonds upon reentry can deter further crime. And yet, there are too few such supports.

Reformers have paid too little attention to designing prisoner reentry programs that give special attention to the needs of children. More reentry programs that promote positive familial relationships and children’s well-being are necessary.

Children’s cognitive and behavioral problems caused by mass incarceration are difficult for teachers to overcome.

Decreasing the number of black children affected by mass incarceration is likely to have a greater positive effect on student achievement than many schoolbased reforms currently advocated by education policymakers. Criminal justice policy is education policy.

Leila Morsy is a senior lecturer in education at the University of New South Wales School of Education, and a research associate at the Economic Policy Institute. This article draws on the report “Mass Incarceration and Children’s Outcomes,” published in December by EPI, and other sources.

a m y s a n c e t ta / a p i m a g e s

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The Instantaneous Injustice of Bail For Chicago’s poor, who can’t afford attorneys, bail hearings often don’t last longer than a few seconds—and may keep them in jail for want of a few hundred dollars.

by K amil A h s a n

O

n the afternoon of June 4, 2016, a pleasant Chicago Saturday, Carmelita Woods was the last family member to come out of Cook County Central Bond Court. Her daughter, Bakirah, had been arrested the night before and had been the last person at bond court to get a hearing that day. The hearing had lasted ten seconds. No public defender had been present for the hearing.

Bakirah remained detained for six days. Her six days in custody, she told me, was the most traumatic experience of her life. And the major problem with her bond court hearings, she said, was that she could not hear or understand anything.

“Nobody explains anything,” Bakirah says. “I hear my name called, I come out, somebody says a few words, and then somebody shoves me to the back and that’s it. You get back in there, there’s a hundred women asking each other what the judge said and what the words meant. … We’re like roaches.

“How is there any justice in bond court?”

Bond court is the first court where one gets a hearing after an arrest. The hearing is intended to decide bond, otherwise known as bail: the amount of money a person needs to post to be released before their trial. In Cook County at least, it is a bewildering process. In the cavernous halls of the George N. Leighton Criminal Courthouse, confused and worried family members, predominantly African American or Hispanic, are a common sight. Many sob in a corner, worried sick that the bail amount decided will be too onerous. By far the most common complaint is that the hearing went by so fast that they didn’t even catch what the bond decision was.

Bond court and pretrial detention in Cook County have long been

controversial. President Obama’s Department of Justice essentially took the position that holding the indigent before a trial because they can’t afford bail is unconstitutional. But in Cook County, the vast majority of people held in Cook County Jail—the largest singlesite jail in the country—are those held pretrial, largely because they are unable to post bail. This is true nationally as well, but according to Cook County Justice Watch, in early October 2015, fully 95 percent of inmates in Cook County Jail were pretrial. The national average was 60 percent.

Recently, following the introduction of legislation to prohibit the use of cash bail in Illinois, the Cook County State’s Attorney Kim Foxx agreed to release detainees held for nonviolent offenses if they could not pay $1,000 for bail. The move, however, affects only a few dozen of the 7,400 inmates in Cook County Jail.

When speaking to critics of bond court, the phrase heard most often is “assembly line.” On my first visit to bond court, it became obvious why.

“Assembly line” recognizes a central characteristic of bond court: The entire process that allows so many inmates to remain in jail even before their trial hinges on the few seconds they get in front of the judge at their bond hearing. Across ten bond court– watching sessions and 276 hearings that I observed over three months, those few seconds began to fit a clear trend. Across all judges observed, the slim minority of defendants with private attorneys got an average of 166 seconds in front of a judge. By contrast, the vast majority of people with public defenders got an average of a mere 22 seconds. When I informed Cara Smith, a representative of Cook County Sheriff Tom Dart, about my findings, she agreed that despite recent changes supposed to improve

The vast majority of people in Cook County Jail are there for one simple reason: They don’t have the resources to make bail.

the bond court system, defendants still got far too little time in front of judges.

The difference between the quality and duration of conversation between judges and private attorneys and those between judges and public defenders is glaring. Private attorneys often represent their clients with full-bodied defenses, vigorously and consistently calling their guilt into question. When a public defender speaks, on the other hand, in the vast majority of cases, he or she mentions solely the defendant’s age, number of children (if any), whether they went to high school or college, and where they work. A bonus second is granted if the defendant is a “lifelong resident of Chicago.”

As has been noted for years, the process also depends heavily on which judge is presiding over the courtroom that day.

Judges render predominantly three types of bond decision: a cash bail where the defendant must post 10 percent of the amount decided (by far the most common); a non-cash bond where a defendant is released without needing to pay bail; or a release with electronic monitoring, an ankle bracelet amounting to house arrest that can also be removed by posting a set amount of money. But because there are no mandatory guidelines specifying what bond is appropriate for which offense, each judge has complete discretion—resulting in large discrepancies among judges over cash bonds or non-cash bonds, the bond amount set, and (especially pertinently nowadays) how often they appeal to a new risk assessment tool.

In the fall of 2013, after much publicity about overcrowding in Cook County Jail as the average daily population exceeded 10,000, as well as calls for change from Sheriff Dart and Cook County Board President Toni Preckwinkle, the Illinois Supreme Court conducted an audit of Cook County bond court with a particular focus on “pretrial services,” which provide a “risk assessment” that a judge can take into consideration when issuing a bond decision.

The Supreme Court report was particularly scathing. It acknowledged the disparities between judges

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and concluded that “in practice, [risk assessment] has become largely aspirational.”

Since then, a highly lauded new risk assessment tool, the Public Safety Assessment (PSA), recommended by the court’s report, has been implemented. The purpose, proponents argue, is to identify defendants who pose little or no threat to public safety and thereby provide judges with more information on which to base their decisions.

The PSA , a tool created by the Arnold Foundation, has been applied in at least 29 jurisdictions. It considers “risk factors”—demographics, current offense, criminal history, substance use, mental health, education, employment, residence, and community ties—and determines two scores on a six-point scale. The scores

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The George N. Leighton Criminal Courthouse

indicate how likely a person is to fail to appear in court, and how likely that person is to engage in new criminal activity. The PSA has been implemented in jurisdictions as broad as the entire states of Arizona, Kentucky, and New Jersey, as well as the cities of Chicago, Phoenix, and Charlotte.

In Cook County, it was welcomed heartily. In February of last year, the Community Renewal Society, a Chicago-based faith-based organization that works on issues of poverty and racism, released a report that concluded that in 2015, the PSA was “being used to assess the risk of the vast majority of all defendants that go through Cook County Central Bond Court,” despite the fact that full implementation of the PSA wasn’t to go into effect until March 21, 2016. However, following reports that tools like the

PSA can employ racially biased soft-

ware, questions emerged.

What, then, has the PSA changed in Cook County?

After observing five of the six rotating judges who conduct bail hearings, it appears not much. Only one judge—Peggy Chiampas—actively seemed to have read PSA reports, referring to them in almost all bond hearings (with the exception of those for defendants from the Department of Corrections: a sizable proportion of defendants to whom pretrial services apparently does not have access).

When the other judges presided, however, any mention or consideration of the PSA scores remained absent from bond court proceedings, nor were its recommendations seemingly taken into account.

Obtained through a Freedom of

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Information Act request, a report by the Sheriff’s Justice Institute concluded the same thing. The report noted that in more than 1,574 cases between early February and late March 2016, “collectively judges rarely administer[ed] the … recommended monitoring level” advised by the PSA .

The report also acknowledged the enormous differences in the ways defendants with private attorneys are treated in comparison with defendants with public defenders.

Regarding an unidentified judge, the report stated, “In Judge B’s courtroom when a defendant was represented by private attorney and the defense explicitly stated the dollar amount their defendant could post, that bond amount stated was granted 70 percent of the time.”

“When a defendant was represented by a [public defender] and the defense explicitly stated the dollar amount, the bond amount stated was granted 1 percent of the time.”

With judges rarely referring to

the PSA , has anything changed at all? Some, including the Community Renewal Society, claim that there has been a steep increase in the proportion of defendants receiving noncash bonds. According to its report, in 2015, 61 percent of defendants received non-cash bonds, compared with 20 percent in 2011.

The sheriff’s office disputes those numbers. “Our information is not that there’s been a tremendous increase in [non-cash bonds],” Cara Smith tells me, although there has been “a tremendous increase in the use of electronic monitoring.”

Recent data from the chief judge’s office supports her assessment. Just in the first five months of 2016, the total percentage of defendants released on non-cash bonds was 24.4 percent— decidedly not a steep increase from the 20 percent in 2011—while 26.9 percent were released on electronic monitoring. But by far, most still got cash bonds: 44 percent.

Many dispute that the increase in electronic monitoring is a step forward in the administration of justice.

Defendants and their family members often criticize it harshly. Sharlyn

Grace, a co-founder of the Chicago Community Bond Fund, a revolving fund that posts bond for people charged with crimes in Cook County, argues that electronic monitoring merely replicates the financial incentives of the cash bond.

One of the people for whom the fund recently posted bond, Grace said, had an electronic monitoring bond that required the payment of $25,000 if he ventured outside the perimeter of his home. “He was working two jobs and then he got electronic monitoring. The conditions were so onerous that he was let go of both his jobs. And while on electronic monitoring, he didn’t have movement for any social activity—like attend church, be a member of his community, or be in a position where he could be rehabilitated.”

Ali Abid, formerly of the Chicago Appleseed Fund for Justice, a legal advocacy group that argues that bond discriminates on the basis of financial means by detaining only the indigent, tells me that oftentimes people on electronic monitoring don’t fully understand the terms and conditions they must observe, making it all too easy to violate them. “And if you violate the terms of electronic monitoring, that’s a Class 3 felony,” he said.

“Sometimes, paying $200 for bond is easier for people than electronic monitoring.”

The Sunday after Bakirah Woods’s first hearing, Tyjuan Coleman had his bond court hearing in Judge Chiampas’s courtroom. Coleman, unlike the vast majority of defendants on any given day, had a private attorney. Chiampas, the only judge I have observed to do this, asked Coleman’s family to stand and asked them how much they could post. They replied $2,000. She then set the bond at $20,000. The $2,000 was sufficient to ensure Coleman’s release.

I met with Chiampas two days after first observing her. I asked her about the stark difference between her and her fellow judges in how often she used the PSA tool. “I can’t speak for all judges, but it is one factor I consider among many and it is an important one,” she said. “I take the PSA tool into

If you have a private attorney in Cook County bail court, your bail hearing lasts on average 166 seconds.

If you don’t, it lasts on average 22 seconds.

consideration in every case.”

How did she feel about the massive variation among judges? What could be done to standardize the wildly inconsistent bond amounts? “Every judge is individual and makes decisions based on the cases in front of them,” she replied. “Discretion lies with each individual judge.”

When I informed Chiampas that people with private attorneys seemed to get more time than people with public defenders, she disagreed.

“Their cases are not treated any differently. Defendants do not get mere seconds in front of a judge. It is on a case-by-case basis.”

But over four visits to Chiampas’s courtroom hearings (17 defendants with private attorneys and 97 with public defenders), the average time for defendants with private attorneys was 150 seconds. The average time for defendants with public defenders was 25 seconds. Further, despite her heavy emphasis on the PSA , Chiampas tended to mete out more cash bond decisions than her fellow judges.

Thus, a troubling conclusion: Even with the use of the brand-new validated PSA , little seems to have changed with the state of pretrial detention in Cook County.

If the PSA largely fails to reduce

Despite her use of new risk assessment tools, requires large cash bonds that keep defendants behind bars.

pretrial detentions, that is no small matter. A wealth of research has demonstrated that pretrial detention actually creates convictions by vastly increasing the incidence of guilty pleas. According to a 2012 New York City Criminal Justice Agency report, the more days that arrestees are detained, the more likely they are to plead guilty to their charge. Pretrial detention was the strongest single predictor of conviction. Another study, published in August by the National Bureau of Economic Research, found the same link between pretrial detention and convictions.

That the bail system is counterproductive is not news. In 2015, Nick Pinto wrote that “the open secret is that … bail is the grease that keeps the gears of an overburdened system turning. By encouraging poor defendants to plead guilty, bail keeps the system afloat.”

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For Amy Campanelli, head of the Cook County Public Defender’s office, the entire concept of cash bond is the problem. “Cash bond is punitive towards the poor. Bond is not supposed to be punitive,” she says. “It’s supposed to make sure the person comes back to court, and to protect the public.”

The day of a high- profile bond hearing for Shaquille O’Neal (not the basketball legend), Chiampas was presiding again.

Earlier that week, a video had surfaced online of 23-year-old O’Neal being tackled by Chicago Police Department officers. It showed a CPD officer stomping on O’Neal’s head until he was knocked unconscious.

O’Neal was then taken to the hospital.

The next day, about 100 protesters marched outside the CPD headquarters. O’Neal was released without charges, but re-arrested two days later, charged with aggravated battery to a police officer, aggravated battery by strangulation, and drug possession.

It was a combative hearing. O’Neal’s attorney made a comprehensive defense: He argued that O’Neal had been arrested on trumped-up charges just two days after being released, and that he was Tased by the police in addition to being stomped on. The hearing lasted over half an hour. Bond was set at $1 million for a first charge and $150,000 for a second.

After the long and exhausting hearing, the felony cases for people with public defenders began, and the rapid pace, the familiar beat of bond court, began to return. The hearings grew progressively shorter. Thirty-seven seconds. Twenty-five seconds. Fifteen seconds. Five seconds. I thought back to Amy Campanelli questioning the purpose of bond. She had asked me whether a $25,000 bond was really just to protect the public, if all one needs to post is $2,500.

“Or, is it just penalizing someone who’s poor?”

Kamil Ahsan is an independent journalist and doctoral student in developmental biology at the University of Chicago. His work has appeared in Dissent, Aeon, Salon, and In These Times.

18 WWW.Prospect.org Spring 2017

Fighting Child Poverty with a Universal Child Allowance Expanding a strategy on which liberals and conservatives can agree

by David Harri s an d H. L uke Shaefer

L

ately there has been growing interest in a simple and effective policy solution to weaknesses in the social safety net: making the Child Tax Credit (CTC) universal. The credit is also one of the rare social policies that bridges the left and right.

In recent months, the case for transforming the CTC into a universal child allowance paid at monthly intervals had been made by both progressive and libertarian scholars.

Here’s how the credit works: Families with children get $1,000 back on their taxes for each child. But since eligibility for the Child Tax Credit is tied in part to federal income tax liability and in part to earnings, the CTC leaves out those families that need it the most— those with little or no earnings. The credit is partly refundable, meaning that for households with incomes above $3,000, if the value of the credit exceeds the tax you owe, the government sends you a check for part of the difference, depending on income and family size.

While it might seem that any conversation about expanding aid to the poor is off the table in today’s political climate, the CTC is exactly the sort of policy that Republicans in Congress and Donald Trump might support. As we’ve seen in a range of Republican policy ideas, from the proposed replacement of the Affordable Care Act, to state tax credits to support voucher schools, to tax-subsidized infrastructure investment, conservatives love tax credits.

Some tax credits are bad policy. The CTC is a very good one.

Our existing safety net is far from perfect, but it plays a vital role in the lives of many children and families.

The Census Bureau now tracks what’s called the “supplemental poverty measure,” which does better than the official measure in capturing the effects of many of our government programs for the poor. Using this updated

measure, researchers estimate that child poverty has fallen by 35 percent since 1968, and virtually all of this is a result of our federal anti-poverty programs. That’s very good news.

But despite this progress, 16 percent of children still live in poverty and an additional 21 percent are in lowincome families. What’s more, while aid to poor families who are working has increased in recent decades, help for the very poorest has plummeted, and what remains has shifted away from cash and toward in-kind support.

In this way, aid to the poor has become stratified, just like the rest of society.

Much of the blame for this widening inequality among the poor and nearpoor rests with the 1996 welfare law, which ended a guarantee of cash assistance to poor children and replaced it with Temporary Assistance for Needy Families (TANF), a fixed block grant for states. People often think of TANF as a welfare program with time limits and work requirements. However, today less than one in every four TANF dollars goes to cash aid, and only about 8 percent is used to help recipients find work. As Ron Haskins—one of the program’s chief architects—has recently noted, TANF gives states too much latitude to redirect federal dollars to plug budget holes in other existing systems such as foster care and college scholarships. The dramatic decline in cash assistance caseloads has been accompanied by a spike in the number of poor families living in extreme poverty— with virtually no cash support.

While TANF has declined dramatically, two tax credits, the Earned Income Tax Credit (EITC) and CTC, have become the backbone of financial support for low-income families.

These credits reward work by providing refundable tax credits that increase as earnings rise, up to a point.

And they are particularly important to

mel anie stetson freeman / christian science monitor via ap images

notebook

rural families who on average are both poorer and farther away from services.

These tax credits have been shown to be effective on numerous fronts, but they are not a “safety net” per se. When a family’s earnings fall to zero—when they lose a job or experience a family crisis—their EITC and CTC fall to zero, too. These programs do nothing to help the poorest families who are unable to work at all, and who have seen their aid cut in the past two decades. What’s more, these benefits are collected only once a year, which means the resources are often not available when crisis strikes, even for those who work.

Most developed countries provide cash to families with children, recognizing that raising kids costs money and that society benefits as a whole when it is done well. The closest thing that the United States has to a child allowance is the CTC, which now provides up to $1,000 for every eligible child under the age of 17. In its current incarnation, families with earnings above $3,000 get a credit worth 15 percent of their earnings, up to the maximum. The credit phases out for single-parent families at $75,000 and for two-parent families at $110,000.

The child tax credit has a major impact on poverty, lifting nearly one of every eight children above the poverty line. For millions of other children in working families, it brings them much closer to the poverty line.

Yet it could do significantly more.

Since eligibility is conditional on earnings, the CTC leaves out those families who need it the most: families with no or very low earnings. We know that the earliest years of life are critical to the development of children, and that additional income for young poor children can have lifelong impacts. The most vulnerable people in the country are infants and toddlers living in deep poverty. Yet because their parents earn so little, the young children who most need support get the smallest tax credits, or none at all.

All of these factors are why there are new proposals to expand the CTC for our poorest young children. Senator Michael Bennet of Colorado has proposed tripling the maximum CTC for children in the first six years of life and phasing in the credit starting with the first dollar earned (rather than

the current $3,000 minimum). This proposal would decrease child poverty and deep poverty dramatically, and would clearly be a huge step forward.

Another approach—introduced this year in the House by Representative Rosa DeLauro of Connecticut, Minority Leader Nancy Pelosi of California, and Ways and Means Ranking Member Richard Neal of Massachusetts, and last year by Senator Sherrod Brown of Ohio in the Senate—would provide a CTC to all families with young children (except for the wealthiest), even those without earnings.

This bill would also help stabilize the financial lives of poor families—many of whom experience extreme swings in income over the course of the year—by paying the benefit monthly, rather than a lump sum at tax time. In doing so, it would be a constant support that families could count on to buy diapers, pay rent, and otherwise meet the needs of their children. With the stroke of a pen, such a program would end the most extreme kind of poverty among families with young children by providing a stable cash income floor that no family would fall below.

Interest in expanding the Child Tax Credit is bipartisan. Already in 2017, Senators Mike Lee and Marco Rubio have reiterated their call for an increase in the CTC. While their proposal doesn’t focus on those with the lowest incomes, their interest in expanding the policy suggests there could be room to come together.

In a recent academic paper, an interdisciplinary group of ten scholars (including the current authors) argues that transforming the child tax credit

A visit to the food pantry

Our existing safety net is far from perfect: 16 percent of children still live in poverty and an additional 21 percent are in lowincome families.

into a universal child allowance would recognize that all “families incur significant expenses when raising children,” while providing an income floor “for our most vulnerable families.” As a universal policy, it would not suffer from stigma, and it would complement the work-based safety net. Writing from a libertarian perspective, Samuel Hammond and Robert Orr argue that a universal child allowance would be a “huge improvement over” the current CTC, which “fails to reach families with the greatest need.” In addition, a universal CTC would provide essential help to families, without imposing burdens on businesses and giving equal benefits to stay-at-home parents.

There is little doubt that the social safety net as it exists today will come under scrutiny in the coming months and years. Most of the focus in these debates will be on stark differences of opinion about its effectiveness and cost, which all too often fall along party lines. But while defending the current set of safety-net programs for poor families is of the utmost importance, we at least believe that it is critical not to lose sight of the fact that scholars and policymakers with vastly different perspectives have recently advocated for the same type of simple policy reform, one that holds the promise to dramatically reduce child poverty while targeting the very poorest.

It might seem naive that a universal child allowance could be adopted this year. But with support from both sides of the aisle, it is now a viable policy alternative. And if changes to the tax code become a major focus of Congress in the months ahead, there’s no substantive reason the child allowance shouldn’t be part of the debate. That would be great news for all of America’s families.

David Harris is the president of Children’s Research and Education Institute and an associate of the Columbia Population Research Center.

H. Luke Shaefer is director of Poverty Solutions at the University of Michigan, a university-­level initiative that seeks to identify and test innovative strategies to address poverty, and is an associate professor at UM’s School of Social Work and Gerald R. Ford School of Public Policy.

Spring 2017 The American Prospect 19

N

othing about Governor Steve Bullock bears a resemblance to President Donald Trump. The son of educators, he had a humble, unremarkable upbringing in the Rocky Mountain town of Helena, Montana’s state capital. He is less than comfortable in front of f lashbulbs. A Columbia-trained attorney, Bullock is happiest being left alone to study his briefing notes or the minutiae of legislation in his quiet office. His interactions with constituents come across as a little forced but, humble and solicitous, his earnestness shines through. Bullock opened his first State of the State address in 2013 by saying,

20 WWW.Prospect.org Spring 2017

“My name is Steve and I work for the state.”

While Hillary Clinton lost Montana by more than 20 points in 2016, Bullock was narrowly re-elected, winning by a margin of 50 percent to 46 percent.

He is cautious about interviews with the press—not because he overtly distrusts reporters, but because he wants to ensure he is fully prepared for any question that may arise. So when I interviewed him in the governor’s capitol chamber, my first question must have been some kind of nightmare.

“What do you and Donald Trump have in common?” I asked.

Shifting in his seat, he began to shuff le

through the pages of prearranged notes sitting tidily on his lap. Finding nothing especially pertinent, he peered out a window, seeking a diplomatic but satisfying response from an unseasonably warm February afternoon. None came to mind.

“I’ve never spent time with Donald Trump, and I don’t govern the same way,” he finally said. Quizzically, the second-term Democrat added, “20 percent of my voters supported him on the same ballot though.”

“Well, that’s just it,” I said. “Surely, they must see something they like in both of you.”

“I think Montanans knew that I was fighting for them. I spoke about public education,

photos courtesy justin gest

Can the Democratic Party Be White Working Class,Too?

While Hillary Clinton was losing Montana by more than 23 points, Steve Bullock was elected governor running as a progressive Democrat. What can the rest of us learn from Montana? B y J u s t i n G e s t

every general election since 1996. Concentrated in the Midwest, Appalachia, and the upper Rocky Mountains, there are 660 such counties today. Hillary Clinton won two of them.

More optimistically, the party’s performance with white working-class voters can hardly get much worse. Even so, Hillary Clinton’s fate was decided by fewer than 80,000 votes in Michigan, Pennsylvania, and Wisconsin—where white working-class people are abundant. Imagine if her campaign had made any inroads with this constituency at all.

So what does Steve Bullock know that Hillary Clinton’s army of consultants and advisers missed? Indeed, how can local politics inform a more national strategy for general elections and down-ballot races? In a predominantly white working-class state, Democrats have won four straight gubernatorial races, maintained one U.S. Senate seat since 1913, and recently won a series of other statewide races until losing the incumbent secretary of state and attorney general last autumn. Do Montana Democrats have a template that can be applied elsewhere?

Great Falls is a gritty, working-class town on the banks of the Missouri River, a hundred miles north of Helena. Its story is one heard in post-traumatic cities across the United States and Western Europe. An industrial hub

Losing the White Working Class

Presidential vote in U.S. counties that are at least 85 percent white and below median income

658 counties

chart source: justin gest and t yler reny

80%

public lands, public money, and those are things that affect us all. We hunt, we fish, and I asked whether we are promoting all Montanans’ interests or only narrow special interests, and how we are going to build folks up individually.”

Perhaps realizing that this doesn’t exactly coincide with most people’s impression of the president, he added, “If there is overlap, it’s making people know that I will fight for them, and that I work for them. I’m not sure that the values are that different in Manhattan, Montana; Manhattan, Kansas; or Manhattan, New York.

People want to feel safe, have good schools, and want their kids to do better than they did.”

Bullock’s party colleagues in Washington

are in a desperate search for ways they can appeal to those multiple Manhattans, but particularly to white working-class people—a label that could apply to nearly all of Montana, and a constituency that Republicans dominated to f lip swing states and salvage contested House and Senate seats in the 2016 election.

Indeed, the more white, rural, and sparsely populated the district, the less likely a Democratic House or Senate candidate was to win it.

In the race for the White House, the Democratic presidential candidate has won steadily fewer U.S. counties with average incomes under the national median and with populations that are more than 85 percent white in

623

70%

543

595

563

57

66

60% 50% 40% 30% 20% 10% 0

168 166

73

● voted republican ● voted democratic

28 2 counties

1996 2000 2004 2008 2012 2016

Spring 2017 The American Prospect 21

that was once oriented around an Anaconda Company refinery, Great Falls understands loss.

Once America’s fourth-largest corporation, with railroad, logging, mining, and refining operations across Montana, Anaconda at one time provided a third of the state’s paychecks. For nearly a century, its towering smokestack defined Great Falls’ northern skyline and stood as a 506foot monument to the city’s industrial history, even after its associated factory was shuttered for ten years. After “the Stack” was deemed structurally unsound in 1982, it was demolished in front of 40,000 witnesses—who watched as if it were the execution of a martyr. When the carefully set dynamite failed to collapse the hulking cylinder, leaving a stubborn shard of brick and mortar, onlookers rejoiced in triumphant defiance.

However, Great Falls has not been able to resist global trends. Its manufacturing sector has shrunk, unions were undercut, the surrounding landscape of ranchers now supplies

for the country. I’m for the independent guy who doesn’t bend over for this guy and that guy. I want to focus on this country. You can’t solve the world’s problems. And I think white workingclass people have a better chance with him.

He has surrounded himself with people who are smarter than him. And they’re people who know how to balance a budget and get things done like a business. I don’t care about the wall, but I do care about infrastructure and focusing on this country. The reason why Donald Trump got elected is because the general working guy is infuriated by what’s happened in Washington.”

“But Bullock is different?” I asked, as Conners fed his customers’ parking meters out front.

“Bullock isn’t wishy-washy. Yeah, he’s vetoed a few things since he’s been in there, but he understands that you’ve got to take care of the dough. I was in debt once, but I made it work.

You just don’t buy your pet cup of coffee for a while. He gets that.”

“There’s just too much of a gap between my life and what Hillary Clinton does. It is so isolated here. Most people never leave. So it’s very hard to relate for the average person.” an international market for meat and grain, and a once reliably Democratic region is far more contested by Republicans and frustrated by the status quo. Trump voters who also supported Governor Steve Bullock abound.

In interviews with locals, I found exhaustion with detached national Democrats, and a pervasive appreciation of straight talk. Bullock is connecting with his brand of progressive populism—a focus on providing solid public education to level the playing field, protecting access to public lands, and maintaining public services without increasing taxes or instituting a sales tax.

Tom Conners has run the Stein Haus, a bar on 1st Avenue, for 39 years. For four generalelection cycles, the 69-year-old has supported the Republican presidential candidate and a Democrat for governor.

“One thing’s for sure,” he said from his perch on a barstool. “Trump’ll [discomfort] all those politicians who are out for themselves and not

22 WWW.Prospect.org Spring 2017

Amanda Sanne is a 25-year-old front-desk manager at a roadside hotel. She and her husband both cast Trump-Bullock ballots last November.

“Donald Trump tried to make sure that you knew that your hard-earned tax dollars were going to go to Americans,” she said while shopping at a sporting goods store. “There are so many people living on assistance, and so much money goes out of the country. I just want a living wage and my rights. Hillary Clinton was very snobbish. She wanted to show that she’s strong, but she was trying too hard to reach women and Mexicans. I think that sends a big message that she’s more interested in their votes than those of the actual American people.”

Lynn Berryhill is a 64-year-old interior designer and registered Democrat who voted for Bullock but could not bring herself to support Hillary Clinton. She voted for Gary Johnson instead.

“None of them know what it’s like to scrounge,

what normal people go through, living paycheck to paycheck, working day and night without having someone home to take care of the kids,” she said. “So they lost the support of people who need the help. Politics is turning into high school gossip, and I’m giving up.”

Dan Mathis is a 30-year-old nutrition retail salesman. Burly and blunt, he is an active homesteader, a Western tradition of settling wilderness for subsistence living. He voted for Donald Trump.

“There’s just too much of a gap between my life and what Hillary Clinton does,” he explained from the electrical aisle of a Great Falls farm store. “It is so isolated here. Most people never leave. So it’s very hard to relate for the average person.”

However, Mathis is deeply loyal to Bullock.

He called the governor’s office when Montana’s child protection agency dillydallied his partner’s application for custody of his stepdaughter. Bullock’s staff responded immediately.

“I thought I would leave a message and hear back in six months, but it was like that distance wasn’t even there. It was almost personal, the way he was able to do that. At the time, I felt like I had no voice. Those little girls mean the world to me,” he said, tearing up. “So I would go to the end of the earth for the governor.”

What makes Governor Bullock such an

interesting case study for the Democratic Party is that he isn’t exactly a unicorn—that rare, transcendent candidate whose personality crosses social divides. He simply combines a reassuring cultural style with a practical progressive message on issues that people care about. That recipe seems to work for more than one personality type.

The rather unassuming Bullock was preceded by the charismatic and bombastic Brian Schweitzer, a Democratic governor whose plain-spoken swagger appealed to Montanans and frustrated his rivals. Schweitzer famously wielded branding irons to publicly veto bills passed by a Republican-controlled legislature.

“I do best at explaining things by telling a story,” Schweitzer told me by phone from Arizona. “Young people approach me who want to go into politics, and they ask me what to do. I would change your major out of political science or law. Get a practical trade, study science or

Ticket Splitter: Dan Mathis, an active homesteader and nutrition retail salesman, voted for Trump—yet is deeply loyal to Governor Bullock.

math. Go out and try to change the world in the private sector. Start a business and lose it. Start a family. … Do not learn how to run this country by working for people who already do. Look at congressional staffers. In 20 years, they’ll all be in office themselves—looking, talking, and droning on like the ones we have right now.”

Schweitzer wasn’t referring to Bullock, but the governor could be forgiven for thinking so.

Were he in Washington, D.C., Bullock would fit right in. Though gregarious, he is also cerebral, measured, even wonkish. After law school, he worked as a legal counsel to the Montana secretary of state, and was later promoted to executive assistant attorney general and chief deputy attorney general before being elected Montana’s attorney general in 2008.

I asked Bullock if Schweitzer, whose name has been mentioned in 2020 presidential chatter, offered any memorable pieces of guidance before he was term-limited in 2012. “We lead in different ways,” he said.

However, it is Bullock’s way that Democrats are more capable of reproducing elsewhere.

Without being that once-in-a-generation politician, he is able to connect with rural and

working-class white voters with symbolic messaging and a customized platform.

While I was in Great Falls, Bullock came to the A.T. Klemens metal shop to promote a new bill that would give tax credits to businesses that hired apprentices and veterans. He would later tour the workshop machinery and observe the craft of several young apprentices. It was all a bit forced, but what Bullock lacked in magnetism, he compensated for with his propensity to honor the past before pursuing the future.

“Hey, college isn’t for everyone,” a workshop supervisor told Bullock in a brief exchange. “It’s a good living here, and you don’t have loans to pay back. Sheet metalwork is a lost art. There’s a shortage of labor supply in the trades. The kids just want electronics and college these days.

They don’t want to use their hands and work.”

While many Democrats would roll their eyes, Bullock engaged him. “We look on the horizon and we think that’s what’s going to limit our growth is a shortage of guys like this. But that extends to other sectors like IT, too.” Bullock was celebrating both Montana’s past and its future— and honoring people who work with their hands.

White working-class people are accustomed

to being considered anachronisms with no place in America’s high-tech information economy, foot-draggers slowing our evolution into a new economic and social era. In the 2016 election, Trump was the first presidential candidate in a generation to make a deliberate appeal to this constituency and envision an economy that valued their contribution. Clinton was the establishment candidate, but also one who heralded and symbolized a future that reoriented the country’s workplace, society, and relationship with a globalized world. The election was a referendum on America’s past.

Indeed, promising to “Make America Great Again” means something wholly different than promising to “Make America Great.” The former overtly implies that America was once great, but no longer is. This specifically appeals to white people, who were not subject to the United States’ history of racial oppression and discrimination, particularly white workingclass people who have seen their well-being and social status plummet since the 1970s.

Based on a nationally representative poll of white Americans just before the 2016 primaries, new research shows that voters most

Spring 2017 The American Prospect 23

attracted to Donald Trump and the far right Policy platforms aside, Keenan insisted ethnocentric, and then you need an economic perceive the greatest discrepancy between that her candidates can’t win statewide office message. If you really are one of us, then people their status in today’s society and the status in Montana without a story. What is Steve will listen to the economic message. If you’re of people like them 30 years before. Their sense Bullock’s? not really one of us, then nothing else matters.”

“I think Steve does connect with white of deprivation is nostalgic.

Bullock’s campaign exploited this ethnocen“Steve’s been able to honor industries of the working-class voters,” she said, “with his trism by drawing attention to his 2016 Repubpast,” said Nancy Keenan, a past president of knowledge of Montana. He grew up here. He lican opponent businessman Greg Gianforte’s roots in New Jersey and California. Gianforte NARAL who now leads the Montana Demo- hunts and he fishes.” cratic Party. “Timber, mining, coal. He has I asked the same question to Dave Hunter, a might as well have been from Syria. said that’s part of who we are, but also talked about how do we grow and what the future looks like. He has been able to keep a foot in each of those worlds.

“He just recognizes economically a changing world. The days of mining— I grew up in a mining town, it’s all we knew—you’ll still have them as part of Montana’s economy but it’ll change because of technology and a global marketplace. It goes back to trust.

They trust him, and trust that he has their best interests at heart.”

Bullock has earned that trust by first identifying with Montanans, and that has lent him the credibility to veto 124 bills in the 2013 and 2015 legislative sessions—more vetoes over two consecutive sessions than any Montana governor in more than 40 years—and also pass progressive litmus tests without alienating too many social conservatives. He has voted against broadening access to guns, enrolled Montana in Bar Keep: Tom Conners, who runs the Stein Haus, voted for Bullock but thinks “white working-class people have a better chance” with Trump.

Obamacare, pushed for universal preschool, new funding for infrastructure, and was Montana political strategist since 1978. “White Every successful statewide Montana Demohonored with an award from Planned Parent- working-class men like to hunt, and they like crat has been able to sell himself as an averhood while I was in town. Meanwhile, bills like to fish,” he said. “Fifty percent of Montana age, local man—and they all have been local the apprenticeship tax incentive serve veterans residents have a fishing license; 20 percent men—even when there is countervailing eviand Montanans without university educations, have a hunting license, and Bullock does too.” dence about how average they are. Not only do and keep business owners happy.

Even Andrew Bardwell, a 40-year-old bison they revere the region’s heritage; they embed In linking past with present, Bullock also rancher whom I met in a farm store, said, “Bull- themselves in it.

Montana’s former at-large congressman, resists national Democrats’ propensity for ock represents average Montanans. He hunts, Pat Williams, served in the House of Repreall-or-nothing thinking. “Let’s use coal as an he fishes, he’s a businessman.” example,” he said. “It’s not just about what I If it isn’t abundantly clear, Bullock is from sentatives for 18 years and consistently made say, but what I do. We’re outdoors people and Montana. He likes to hunt. And he likes to fish. references to his jobs as a miner, sewer servicewe see how our climate is changing. I think “The irony is that I don’t think he does,” man, and track layer for the Butte-Anacondait’s a false choice between addressing climate Hunter confessed. “Yeah, he’s hunted, but not Pacific railroad that hauled ore to smelters. change and continuing to produce energy for a while. But it is the cultural messaging.”

Never mind that he held all those jobs before from fossil fuels.”

“I mean, he can produce pictures of him and he graduated from college.

In so doing, Bullock eases his constituents his buddies hunting,” he continued. “They put Longtime U.S. Senator Max Baucus came into a progressive future by weaning them off them up on Facebook, but I haven’t seen one for from one of Montana’s wealthiest families, but the past instead of insisting on a sharp break. four years. There’s both a cultural test that is is known as a rancher from north of Helena

24 WWW.Prospect.org Spring 2017

who once walked 800 miles across Montana while campaigning.

Current Senator John Tester actively farms 1,800 acres northeast of Great Falls and is prone to poking fun at city folk.

“It’s authenticity,” Keenan said. “Candidates have to be true to themselves. People want you be authentic, to share their experiences.

When grain prices fall through the floor and the entire community is feeling the pinch, Montanans want you to understand that. You don’t have to always agree with them, but you do need to look them in the eye and be honest with them. John Tester says, ‘Don’t tell me something’s not happening with the climate; my crops are harvesting three weeks ahead.’

His hands are in the dirt.”

“The Democratic Party is full of these damned do-gooders,” Keenan carried on. “A lot of the people who run as Democrats think that if we could just get into the depths and detail of the policy and make people understand it, then we’ll get elected. Oh, hell no! The detail doesn’t matter, people! What’s the first rule of politics? Show up. Everywhere. The second rule is: Show up where they didn’t want or ask you to come. I used to show up at the stock growers’ convention or the Chamber of Commerce conventions, and they’d all ask, ‘What the hell is she doing here?’” She guffawed. “And I’d tell everyone how terrific it was to be with them.”

In an eerie echo, when I asked Bullock what national Democrats need to do, he said: “They need to recognize that there are no such things as national issues; they’re all local. It’s not about pigeonholing issues to score votes. Rule number one is to show up, and if you’re just going to write off parts of the country, your success will be limited. I think that we need to have a 50-state strategy. In 2008, you’d be tripping over Obama people [in Montana]. President Obama brought his wife and kids to the Butte Fourth of July Parade. They lost Montana by 2 points, and he came after the primary.”

Sitting inside Electric City Coffee in Great Falls, I listened to a conversation between two old friends: Ken, a retired state transportation worker who is a Democratic-leaning independent, and Pat, a recently retired Army warehouse chief who voted for Bullock and wrote in “Justin Trudeau” rather than support Hillary Clinton.

“This isn’t the party or the state I grew up with,” Pat lamented. “We don’t have two railroads, the unions are all but dead, the things that I remember in my formative years no longer exist. I think back to my sophomore year of high school, and Max Baucus came to our basketball game.”

“Believe it or not, he came to work with us one day,” Ken recalled. “We were painting stripes for the day, and we got him a hard hat and vest.

That was in character with the guy. It showed he cares. You got any questions, he was there.”

In an era when so much of politics is mediated by cable news, scripted social media missives, and airbrushed web profiles, showing up reveals candidates’ humanity. It is where bonds are born.

But can stories laced with American

nostalgia create bonds in coastal communities acutely aware of history’s social ills, or in eco-

saging. Running on a national party platform is death. In a state that is almost exclusively white, the imagery of the national Democratic Party as a multicultural, liberal, gun control, anti-coal party is tough messaging.”

“In Montana, yes, there is very little racial diversity, aside from Native Americans [who comprise about 6 percent of the state’s population],” Keenan told me. “But the other part is that folks never leave their county. They never go to a city. They might go to Billings, but I’d love to know the statistics about how many go to New York, D.C., or Atlanta, because that’s how you see what the rest of this country looks like. Republicans are much more homogenous.”

That same homogeneity benefits Democrats in Montana. For example, whereas Georgia Democrats must bond with Atlanta’s cosmopolitans and African Americans before rural white voters down the I-75 cor-

Governor Bullock honors industries of Montana’s past: timber, mining, coal. But he also looks to the future. “He has been able to keep a foot in each of those worlds.” nomic powerhouses forging a digital future?

What bonds can emerge when the candidate who shows up is a shotgun-toting, coal-dusted, grain-farming moderate? Perhaps the Democratic Party is simply too unwieldy a coalition.

The January 21 post-inaugural protests revealed a leftist coalition composed of everything from dreadlocks to Drybar, people part of labor unions and civil unions, arriving via transit but also Teslas. Can such an eclectic community expand to include the voices of marginalized white working-class people from post-industrial spaces?

“You can’t,” Dave Hunter said. “There is a disconnect between the things a Democratic candidate has to do to win primaries in California and New York, and what is culturally acceptable for white persuadable voters in Montana. Look at Tester and Baucus, they are always running away from the national party.

They pitch themselves as an independent voice for Montana. There isn’t any national mes-

ridor, Montana Democrats’ focus is undivided.

“Yeah, I suppose it’s a benefit, the homogeneity,” Bullock told me, upon reflection. “But if the premise is that Democrats have lost white working-class men, then that could be a [national] problem, yeah. In 2020, you could weave together a coalition based on identity politics. If that’s the bedrock foundation, you might win the presidency, but you’ll lose the country. I don’t want to be part of a party that ideologically only reflects the East and West Coasts. And while our experiences are different, I think a Native American, Latino, or me, as parents, have the same aspirations for our kids. Your hopes are the same.”

However, many Democrats believe that broadening their party further only thins the glue that holds them together. Recent research

by Matt Grossmann and David A. Hopkins shows that Democrats are a coalition of diverse identity groups—African Americans, Latinos, youth, and women—to whom the party directly

Spring 2017 The American Prospect 25

sells its policies. The social group that makes up Democratic activists binds them to the party, leaving little space for other interests who don’t identify.

Currently, searching for rural Democrats in the national party caucus is, as they say in Montana, diggin’ where there ain’t no taters.

There is little space for Pat Williams who was broadly against gun control, Brian Schweitzer who supported the construction of oil pipelines, John Tester who pushed for the onceendangered gray wolf to be fair game. In turn, the party of diversity appears quite exclusive and inhospitable for key electoral constituencies, like the working-class voters of Montana.

The Montana experience suggests that Democrats must either compromise or risk being ideologically “pure” but confined to their strongholds in coastal cities. But the last great compromise put the national party at odds with these voters.

class people, unionists, had nowhere to go.”

I think of these white working-class people as the “Exasperated,” as I wrote in Politico in February: “They feel betrayed by the countless politicians who have stood in front of shuttered mills and smelters and promised to bring manufacturing and mining economies back to life. It’s why they have swung from party to party, from year to year—often reacting to the failures of previous candidates to deliver.”

They choose to sit elections out. “They are not ‘Independent’ so much as they are just constantly disappointed. The Exasperated voted against Clinton in 2016 because, as a longtime member of the Washington establishment, she portended more broken promises. They voted for Trump because he was the first politician in a generation to make a deliberate, authentic pitch for their support.”

What is so frustrating to older leftists is that Trump resurrected the David versus

Former Governor Schweitzer liked to put it this way: “Yeah, I’m for gay marriage rights, but I think you care a whole lot more about whether there’s grain on the High Line.”

That ideological compromise, set in the

late 1980s, came with the creation of the Democratic Leadership Council and the party’s profitable alignment with the financial class. Both an embrace of globalization and a strategy for American campaign financing, Democrats’ cultivation of liberal, urban cosmopolitans and professionals complicated their relationship with unions and working people who supported far more protectionist positions. And as Democrats further embraced free trade, labor immigration, and cozied up to multinational corporations, the economic policy distinctions between Democrats and Republicans became murkier and white working-class people found less and less to like.

“Step by step, Democrats tried to broaden their base at the expense of working-class families,” said Leo Gerard, the president of the Steelworkers Union. “You didn’t lose the [2016] election because you had a shortage of rich white voters; you lost because working-

26 WWW.Prospect.org Spring 2017

Goliath themes that once characterized the Democratic identity of yesteryear. Certainly, Democrats still support the wage standards, infrastructure, and redistributive policy prescriptions they once touted and that have since been mimicked by the president.

Why are these principles no longer credible to enough working-class people—regardless of whether they are white?

I posed this question to Celinda Lake, Brad Martin, and Joe Lamson, strategists who have worked extensively in Montana. The consensus is that progressive platforms cannot be proposed without the cultural symbolism that “shows” rather than “tells” the white working class that they matter, that they belong.

“America is not a pretty place when things are contracting,” said Lake, who hails from Montana and now runs a prominent polling firm in Washington, D.C. “Racism and sexism emerge when people think that America is losing its place—when things start to feel

zero-sum. And identity politics accentuates that. We articulated ‘Stronger Together’ with a divisive candidate and ‘Together’ didn’t seem to include white, blue-collar types. They don’t think they’re part of that togetherness.”

“Hillary’s campaign could not fathom losing the Rust Belt,” and they weren’t speaking to their particular issues, said Lamson. “People just couldn’t relate to her because they thought that she would take away their guns and shut down the natural resource industry. It was hard to go anywhere after that. … I mean, why are we spending all of our time talking about bathrooms? It’s not that it’s not important; it’s just a matter of perspective.”

Lake recalled a line Brian Schweitzer liked to use: “Yeah, I’m for gay marriage rights, but I think you care a whole lot more about whether there’s grain on the High Line.”

Donald Trump is not from Montana. He

does not like to hunt. He does not like to fish.

That a New York City aristocrat is recognized as the national voice of white working-class people reveals how exasperated his supporters truly are, and how empty the field really is for candidates who want to compete with him for white working-class support. It is noteworthy that Obama lost Montana by a mere 2 points in 2008. Bill Clinton won Montana in 1992.

And many Trump supporters in Montana remain wary.

Shane McCune is a 27-year-old tanner apprentice who spoke with Governor Bullock during his visit to the metal shop. “What do Democrats need to do to win white workingclass votes?” I asked him.

“Get us good jobs,” he replied immediately.

“Plain and simple. Seems like I got to work my butt off, and I barely get by. And then I see people on benefits having it so good. Stop giving them handouts. Around job sites, that’s what people talk about. [Democrats] just need to get together, come up with some ideas, and follow through with them. It’s a lot of little ideas. I don’t know if Trump can do it.”

“What if Trump fails to deliver?” I prodded.

“Then it’s just another president. If there had been a better opponent, I may not have voted for Trump in the first place.”

McCune’s responses reveal the contingency

of his support for Trump, but also the persistent challenge for Democrats—showing that not only is there tension between white working-class people and other disadvantaged groups, but that their fates are actually linked.

Andrew Bardwell, the bison rancher, acknowledges this linked fate. He and his wife, Annie, met at a hunting camp and work as farmhands in Choteau, 50 miles northwest of

that Republicans represent independent, f lag-waving Americans. But in a rural environment, we have to realize that we are highly dependent on public services.

The kids are going to be the only ones on a school bus that takes them 25 miles to the nearest school. We use roads that are built into the countryside to serve just a few people.

ment, fiscal responsibility, foreign engagement, and neoliberalism, the message was clear: Donald Trump has crafted a Republican Party that marginalizes the people who believed in these bedrock principles, and narrowed its focus to a hard core of bitter white people who yearn for yesteryear. What few anticipated was the power of partisan ties, and Hillary Clinton could not poach moderate Republicans and independents to the extent many expected.

What if moderate white voters had turned out and voted Democratic in slightly higher numbers? What if anyone other than Hillary Clinton had been running? What if Democrats made a more deliberate appeal to white working-class voters in order to keep those on the partisan margins? What if Trump disappoints a significant share of the Exasperated?

Unless Democrats meaningfully reach out and connect with these groups, we will never know.

President Obama’s victories lulled many Democrats into a complacency induced by the slogan “demography is destiny”—the idea that a rising electorate of various minorities was the new majority. However, demographic change is a slow process and this all ignores the unique context of Obama’s success—a pervasive sense of desperation in 2008 and a 2012 opponent who Get Us Good Jobs: Governor Bullock listens to Shane McCune, a tanner apprentice at the A.T. Klemens metal shop in Great Falls. profited from offshoring and layoffs.

Many Trump voters are close friends Great Falls. Both are Bullock voters, but were Integrating Montana’s template into Demodissatisfied by Hillary Clinton’s candidacy: and family of mine. And I think they fail to cratic success will entail integrating Montana’s see the irony. You can’t sit there and comconstituents—white, working-class, often rural voters who, despite their cultural differplain about freeloaders. They think they’re I can’t think of a single [trucking] rig with a Trump sticker on it, and I think doing God’s work and feeding the people, ences, face many of the same frustrations with most people don’t think that Donald but we overproduce and export most of our debt, health care, and labor as other workingTrump is doing people like us any favors. class people in the Democratic coalition. goods. And they don’t realize how much the None of his jobs are coming here. He No doubt, much of the national partisan government does. Think of price supports wasn’t talking about building elevators landscape depends on how Donald Trump on grain, which has an effect on the cost on the High Line. We export everything and congressional Republicans govern. But of beef. And so while Christianity and the we produce—our wheat, our barley, our for Democrats, this is also a question of how Second Amendment are core values for us, children—so his anti-trade thing is going inclusive their party really is. it doesn’t trump our other values. to kill us. I just think that people around here are scared shitless about Hillary Mere months ago, the conventional wisdom Justin Gest is an assistant professor of pubClinton taking their guns away. And I was that it was the Republican Party that was lic policy at George Mason University’s Schar near implosion. Whether authors were refer- School of Policy and Government, and author of know that sounds trite, but they are scared shitless. She connected with no one. ring to the Republican Party’s electoral chances The New Minority: White Working Class PoliA lot of the time, there is an impression or its historic profile as a party of small govern- tics in an Age of Immigration and Inequality.

Spring 2017 The American Prospect 27

Containing Trump Trump’s assaults on everything from constitutional government to decent policy have kindled the resilience and ingenuity of American democracy.

28 WWW.Prospect.org Spring 2017

The Anti-Trump Movement: Recover, Resist, Reform

The profusion of citizen organizing as defense—and offense

By Peter Dreier

E

very day since Donald Trump’s January 20 inauguration, Hetty Rosenstein gets up at 6 a.m. to write an email to activists throughout New Jersey about upcoming rallies, marches, meetings, and other events to protest Trump’s agenda. The list began with 80 names, but by the end of February, the 62-year-old Rosenstein, state director of the Communications Workers of America union, was sending her daily email blasts to more than 2,700 people.

Her missives include information on protests at town meetings sponsored by Republican Congress members, weekly vigils to defend the Affordable Care Act, training sessions of burgeoning activists, rallies for immigrant rights and transgender students, a talk and rally at a Trenton church by activist Reverend William Barber II, reminders of upcoming marches like the International Women’s Day strike (“Wear red in solidarity”), and an “Evict Trump-Kushner” rally at a Jersey City office building owned by Jared Kushner’s real-estate company.

Rosenstein’s daily emails have helped strengthen the “resistance” movement against Trump and the Republicans in Congress. Even Rosenstein was surprised that more than 1,000 people showed up, with hundreds of protesters outside, at Representative Leonard Lance’s town hall at a community college in suburban Branchburg, demanding that the conservative Republican vote against repealing Obamacare, oppose Trump’s travel ban on Muslims, get Congress to investigate Russia’s interference in U.S. elections, and push Trump to release his tax returns.

“I’ve been organizing for over 30 years and I’ve never seen anything like this before,” says Rosenstein. “Lots of people went to the Women’s March who hadn’t been to a demonstration before. Now they come to the health-care vigils every week. The folks who show up at the town halls include some longtime activists and some new people. I go to two or three demonstrations a week now, and there are many others I don’t get to.”

Many established liberal organizations as well as the dizzying array of new upstart groups are discussing how

to sustain this burgeoning anti-Trump movement. They face three key challenges: ■ How to stop Trump and the GOP-led Congress from inflicting significant harm and pain through executive orders, legislation, and appointments to key positions in government.

■ How to translate the rise in activism into a powerful electoral force to help progressive Democrats take back Congress in 2018 and the White House in 2020. Democrats also need to reverse Republicans’ domination in governors’ seats (the GOP now holds 33 of 50 positions) and state legislatures (the GOP controls both legislative chambers in 32 states and has total control—both legislative chambers and the governor’s office—in 25 states outright) in order to play a role in the next redistricting so as to challenge GOP-friendly gerrymandering.

■ How to keep a grassroots progressive movement alive for the long haul that trains new leaders and candidates, advances a progressive policy agenda, and links people concerned with specific issues (i.e., women’s equality, immigration, workers’ rights, environmental justice, public education), transforming the movement into a broad ongoing crusade for a more inclusive and equal America.

Over the past few years, efforts like Occupy Wall Street, Black Lives Matter, the Dreamers immigrant-rights movement, the battles against the Keystone pipeline and for marriage equality, and the Fight for 15 generated a new wave of activism, but nothing has inspired more protest than Trump’s election.

“Lots of us woke up the next morning wondering whether we understood the country as well as we thought we did,” says Gara LaMarche, president of the Democracy Alliance, a network of wealthy liberals that supports progressive candidates and organizations. “We spent some time trying to absorb it.”

But it didn’t take long for people to recover from the shock and begin a resistance movement. “I can’t overstate how unprecedented the grassroots energy of this resistance is,” said Anna Galland, MoveOn’s executive director. “This

Spring 2017 The American Prospect 29

is far beyond anything I’ve seen, even at the height of the anti–Iraq war movement.”

The new mood of both frustration and urgency is sparking a new level of political activism. According to a Washington Post poll released in late January, 25 percent of Americans— including 35 percent of Democrats, 40 percent of Democratic women, and 43 percent of Democrats under the age of 50— say they plan to be more politically active this year.

“If we’re going to succeed, it won’t mainly be people like us,” says Dan Cantor, national director of the Working Families Party, a group that mobilizes voters and supports progressive candidates in 17 states. “We’re not nimble enough. That’s why we need the resistance. We’re running to catch up. That’s great.”

Many existing progressive groups have seen an upsurge of new members and contributions since the election. The ACLU’s dues-paying membership jumped from 400,000 to one million, with another million on its email list. Within three months after Trump’s election, it raised more than $50 million.

“We’re going to invest much of it to do grassroots organizing,” explains Faiz Shakir, a former staffer for Senator Harry Reid, who was hired in January as the ACLU’s first political director. In March, the ACLU held the first of a planned series of what it calls People Power “resistance training” workshops—conducted in Miami but

30 WWW.Prospect.org Spring 2017

livestreamed to more than 2,000 house meetings around the country—for its growing membership.

MoveOn.org saw a surge in the number of people on its email list, which now exceeds eight million. The number making a monthly contribution more than tripled to 75,000 within a few months after Trump’s election.

The Sierra Club saw a spike in donations, while its membership and supporter base climbed to 2.7 million. Trump’s election produced a large bump for Planned Parenthood, which faces defunding from Trump and Congress because it performs abortions at its health clinics. The group now has 9.5 million people on its email list.

The day after the January 21 Women’s March, Planned Parenthood co-sponsored a training workshop for 800 people in Washington, D.C. Most of them had never been involved in political activism before, says Kelley Robinson, the group’s deputy organizing director.

“The Women’s March gave them an opportunity to express their feelings,” says Robinson. “But what happens next is equally important. Our message was: Don’t make this a one-time thing. Go back home and be an organizer.”

Within a month after the women’s march, Planned Parenthood had recruited 50,000 volunteers—called Defenders—who pledged to take some action—a phone call to Congress, attending a rally—at least once a week to oppose defunding Planned Parenthood and Obamacare.

m o b i lu s i n m o b i l i / c r e at i v e c o m m o n s

The Beginning: Millions of women (and men) marched on January 21 in hundreds of cities.

Containing Trump

Even the Democratic Socialists of America has gained new members and donors, thanks to socialist Bernie Sanders’s growing prominence and the fear incited by Trump. A legacy of the Socialist Party that began in the early 1900s, DSA was languishing in early 2016 with only 6,200 members. Now it has nearly 20,000 members and 121 local chapters, according to national director Maria Svart.

“When everything is at stake, and with Republicans in power, we’re going to lose much of the time, [so] we need a framework to decide what fights are most important to fight,” explains LaMarche of the Democracy Alliance.

“On some issues—like immigration, abortion, and health care—we have no choice. But we also have to attack the sources of the right’s power. We have to protect voting rights and reform our campaign-finance laws. We have to defend the courts and the independence of the media. We have to fight fights that weaken Trump and drive a wedge between him and his base, like defending Medicare and safety-net benefits.”

The anti-Trump movement doesn’t speak with one voice or agree on an overall strategy. It is composed of wellestablished groups and new upstarts, seasoned activists and political neophytes.

A new group, Indivisible, began as an online “how to” manual for people frustrated and angry by Trump’s victory, and in just two months spurred the formation of nearly 6,000 confirmed local activist groups in all of the nation’s 435 congressional districts.

Its instigator, Ezra Levin, is a 31-year-old former staffer for Representative Lloyd Doggett of Texas and, since 2013, the associate director of a D.C.-based anti-poverty group.

After the election, he and his wife (Leah Greenberg, another former congressional staffer) invited friends to their living room for what he called a “grief counseling meeting for progressives.” Visiting Austin, Texas, over Thanksgiving, they met with some local “resistance” groups and discovered “lots of energy but a lack of direction about where to focus.”

When they returned to D.C., Levin and Greenberg met with others who had all worked on Capitol Hill in 2010 when the Tea Party emerged to thwart Obama’s presidency and push the Republicans further right. In a few days, they produced an easy-to-read document, “Indivisible: A Practical Guide for Resisting the Trump Agenda,” based on lessons they’d learned from the Tea Party, including sections on “How your Member of Congress thinks, and how to use that to save democracy,” and “Four local advocacy tactics that actually work.”

Levin sent it to his 650 Twitter followers on a Wednesday night with this message: “Please share w/ your friends to help fight Trump’s racism, authoritarianism, & corruption on their home turf.”

Word spread quickly through social media and within a few hours the Google document crashed. “So we started a website,” Levin says. “Within eight weeks, the site had about 16 million views and two million downloads. About 270,000 people signed up to be on our email list. They wanted to know, ‘What can I do? Is there a local group in my city?’ So we added a registration function to the website. Twenty people would get together in someone’s living room and the next week 500 people would show up at a community center. Within a few days, 700 people showed up at a meeting in Fargo, North Dakota! Some folks in Alaska started a new group called 49 Moons—the length of time Trump would be in office.”

Indivisible sponsors weekly conference calls—some with 60,000 participants—that link its members with the ACLU, MoveOn.org, the Working Families Party, and other groups. After Trump announced his ban on immigration from seven Muslim countries, Indivisible hosted a conference call cosponsored by the National Immigration Law Center, the ACLU, the International Refugee Assistance Project, and Asian Americans Advancing Justice, with 35,000 people on the line, leading to thousands of phone calls to Congress and participants in protest rallies against Trump’s policy. Levin says they will do future conference calls with other groups around taxes, health care, reproductive rights, and other issues.

Indivisible joined with People’s Action and the Center for Popular Democracy (both nationwide networks of local community-organizing groups), MoveOn.org, and the Working Families Party to start #ResistTrumpTuesdays actions at Congress members’ and state legislators’ offices, to demand they publicly denounce Trump’s agenda and Cabinet appointments.

After Trump’s victory, Meetup added a new network under the hashtag #Resist. Within a few weeks, more than a thousand new groups were created to engage in political action.

Laura Moser started Daily Action, a text message service that makes it easy for users to call their member of Congress. Since its launch in December, about 100,000 users have signed up, generating almost 10,000 calls per day against Trump’s agenda.

Brad Lander, a former community organizer who represents Brooklyn in the New York City Council, instigated Get Organized BK! to mobilize Brooklynites around progressive issues and to pressure the state’s congressional delegation—including Senate Minority Leader Chuck Schumer—to oppose Trump’s initiatives.

The number of coordinated nationwide protests has also escalated. The January 21 Women’s March—the largest protest in American history, with three million to five million participants in cities and suburbs across the

Indivisible began as an online how-to manual.

The guide

went viral, and so did the movement.

Spring 2017 The American Prospect 31

“Trump’s been

a great

organizer

for us.

There’s a higher level of collaboration across movements and issues.”

country—was followed by an International Women’s Day strike on March 8. The spring begins with a nationwide Tax March on April 15 in Washington, D.C., and more than 50 cities to demand that Trump release his tax returns.

Other protests—a Science March (April 22), a People’s Climate March (April 29), an immigrants and workers march (May 1), and a Children’s March (May 13), among others—are already scheduled. Several new websites— including WhatDoIDoAboutTrump.com—keep people abreast of all the anti-Trump events.

Although many of these marches and rallies have a single-issue focus, the level of mutual support has increased significantly. Many unions and environmental groups, for example, mobilized large contingents to the Women’s March in January.

“Trump’s been a great organizer for us,” explains Peter Colavito, chief of staff to Mary Kay Henry, the president of the Service Employees International Union. “There’s a higher level of collaboration across movements and issues than I’ve seen in a long time. Now we are seeing a period of unified opposition, led by grassroots activists, that we need to harness into elections.”

In response to Trump’s effort to ban Muslim visitors and increase deportation of immigrants, a coalition of religious, immigrant-rights, and labor groups led a campaign to fight back, protesting at airports, initiating lawsuits, and persuading dozens of cities, universities, and churches, as well as California’s political leaders, to pledge to resist cooperation with the federal crackdown.

“The popular upsurge is stiffening the spine of the Democrats,” says Cantor of the Working Families Party. The problem, however, is that if Republicans continue backing Trump, he will prevail legislatively. So one challenge for the activists is to raise the political costs for Republicans when they walk the plank for Trump by backing unqualified or corrupt nominees and unpopular policies.

Next year’s political map makes it almost impossible for Democrats to gain a majority in the Senate. The Republicans only hold 8 of the 33 Senate seats up for grabs in 2018. To gain a majority, the Democrats would have to hold on to all 25 seats and topple Republicans in at least three states.

Immediately after Trump’s victory, it seemed almost equally implausible for the Democrats to regain control of the House, where they need to win a net 24 seats. But the number of “swing” districts has grown in the wake of the Trump meltdown. The Democratic Congressional Campaign Committee has identified 59 GOP-held seats it intends to target, hoping to take advantage of Trump’s historically low popularity, the upsurge of activism, and the growing local protests against House Republicans. (See

32 WWW.Prospect.org Spring 2017

“Will Suburban Activism Pave the Democratic Way to the House?,” by Justin Miller, on page 41.)

A challenge is how to win back white working-class voters who supported Trump, and to increase turnout among African American, low-income, and young voters who, if they go to the polls, are more likely to vote Democrat.

Color of Change is one of several groups that are working to mobilize black voters.

The civil rights group is best known for its successful 2009 effort to get advertisers on Glenn Beck’s Fox News show to pull their ads after the right-wing talk show host called President Obama “a racist,” and for its campaign to get corporations to withdraw from the American Legislative Exchange Council, the conservative lobby group that pushed state legislators to support voter-ID and standyour-ground gun laws. This year, it led a petition and social media campaign, along with the Grab Your Wallet campaign, to push corporate chieftains to resign from Trump’s business advisory council; the first to quit was Uber CEO Travis Kalanick. Next target: Disney CEO Bob Iger.

Over the past year, however, Color of Change, with 1.2 million members, has primarily focused on fighting racial bias in the criminal justice system. Its primary strategy has been to mobilize black voters to elect progressive local district attorneys, prosecutors, county-level officials, and judges whose decisions shape voting laws, the number of polling places, whether to prosecute rogue cops that kill black residents, whether to plea bargain, how much bail to set, and what prison sentences to seek in court.

“For black communities, these are day-to-day, life-anddeath decisions,” explains Arisha Hatch, executive director of the Color of Change PAC, which uses the campaign hashtag #VotingWhileBlack. “These are issues black voters care about. It is a way to translate resistance to Trump in a very concrete way.” Their strategy is not only to help elect more progressive local district attorneys, prosecutors, and judges, but also to increase voter turnout among African Americans, which helps Democrats running for other offices.

Last November, it helped six of seven targeted candidates win races in Florida, Texas, Illinois, North Carolina, and St. Louis. It enlisted more than 3,000 volunteers who sent text messages to more than three million voters, according to Hatch.

Trump won Pennsylvania by about 44,000 votes. Higher turnout by black voters would have delivered the Keystone State to Clinton. This year, Color of Change is working with a coalition in Philadelphia to get candidates vying for city district attorney to adopt a progressive agenda on bail, juvenile sentencing, and other issues, and to increase voter turnout in the May primary. The coalition enlisted Becky Bond, who ran the field operation for Bernie Sanders’s campaign, to help organize the voter-registration drive.

f. b r i a n d er g u s a n / ch a r l e s to n g a ze t t e- m a i l v i a a p i m ag e s

Containing Trump

Progressives have added some new gadgets to the political machinery used to identify and support candidates.

Swing Left is a website that allows people to plug in their ZIP codes to find the nearest competitive House district. It was started by Ethan Todras-Whitehill, a writer in Amherst, Massachusetts, who hadn’t been politically involved before November.

“I live in a safe Democratic district,” says Todras-Whitehill, “but we’re not far from New York’s 19th Congressional District, where [Republican] John Faso beat Zephyr Teachout by just 26,000 votes.

“I posted a message on my Facebook page that I’m going to work there in 2018 to flip it to a Democrat. Then I asked myself: Why isn’t there an app to do this for me—to find a closest swing district? I called my best friend from high school, an entrepreneur in the Bay Area, and said, ‘Dude, we need to build this.’ He talked with his wife, who is a brand strategist. … It blew up faster than we could have imagined.”

Soon after the website went public, comedian Sarah Silverman tweeted, “Start thinking mid term elections now—this makes it CRAZY easy,” and linked to Swing Left’s website.

By early March, Swing Left had 300,000 people on its list, and information about 53 districts, researched by volunteers, on its website. It organized an initial conference call with 17,000 people, put together more than 500 teams, and organized local house meetings. Like Color of Change’s PAC, Swing Left partnered with Becky Bond’s Knock Every Door group, to help train volunteers in the art of canvassing, voter registration, and recruiting volunteers.

“I don’t think the existing infrastructure can meet the moment and scale up grassroots participation on its own,” says Bond. “We need new things.

“Most of the mainstream liberal groups think that people can only do one thing at a time. Sign a petition. Give money. Make phone calls. But when people are angry or hopeful, they can do multiple things. They want to do something every day with other people. There are tons of people ready to get to work. They’re not waiting for national organizations to tell them what to do.”

Bond started Knock Every Door in January to enlist experienced organizers to train local volunteers in the skills of grassroots organizing, running campaigns, and recruiting progressive candidates. Bond’s approach resembles the Camp Obama training, which helped the Illinois senator win the White House in 2008, and similar efforts that catapulted Sanders from an obscure Vermont senator into a strong contender in the Democratic primaries.

“Democrats can’t depend on candidates who can selffinance,” Bond says. “If you have the charisma to be a leader and are good on issues, you’ve got a shot. We can train them. We can help them organize their campaigns.”

Many people engaged in various resistance activities were part of Bernie Sanders’s presidential campaign. Since November, Sanders has attended meetings and rallies across the country to keep his campaign’s momentum alive and make sure his followers have a strong voice within the Democratic Party. The group built out of his campaign, Our Revolution, has the benefit of Sanders’s volunteer and fundraising lists, and 900 local affiliated groups. It has supported progressive candidates for local, state, and congressional offices, like Pramila Jayapal, a community organizer and state legislator whom Seattle voters sent to Congress in November; Monica Kurth, who was elected to the Iowa state legislature in a special election in January;

and Jane Kleeb, a leader of the fight against the Keystone pipeline, a founder of the progressive group Bold Nebraska, and a Sanders delegate to the Democratic convention, who was elected chair of Nebraska’s Democratic Party. But some activists have criticized the group for not investing its resources to hire field staff.

“Our goal is to build sustainable local groups that can work inside and outside the Democratic Party in all 3,143 counties in the country,” says Larry Cohen, the former president of the Communications Workers of America who was a senior adviser on Sanders’s presidential campaign and is now chair of Our Revolution.

“We have to be clear what we’re fighting for, not just what we’re against. We’re not just fighting against the repeal of Obamacare. We’re fighting for Medicare for all. … We’re fighting to get big money out of politics,” Cohen notes. “We will never succeed unless we build a movement for real democracy.”

Sanders’s followers played a key role in Representa-

Bernie’s Afterlife: Senator Sanders fist-bumps a McDowell County coal miner during a town hall meeting at Mount View High School in Welch, West Virginia.

Spring 2017 The American Prospect 33

At the DNC’s February meeting in Atlanta, delegates elected Maria Elena Durazo—longtime leader of the hotel workers’ union and champion for immigrant rights—as the party’s vice chair. As the head of the Los Angeles County Federation of Labor, Durazo helped trans-

Unity! Former rivals Tom Perez and Keith Ellison are now chair and deputy chair of the Democratic National Committee.

form Los Angeles and California into labor-friendly and Democratic bastions.

“The party’s bad habits won’t just disappear,” she says.

“We have to change the party’s culture. We have to focus on organizing.”

“If we’re going to think about building a progressive movement for the long haul—not just the next election cycle—we have to turn these new activists into leaders, we have to invest in them,” says Durazo, who is the daughter of immigrant farm workers. “They know they need more training so they can strengthen their organizations and increase their numbers. They want to develop their skills, not be told to show up at the next action.”

“We have thousands of talented organizers in our movement,” she adds. “They know how to develop leaders, recruit candidates, run political campaigns, build sustainable organizations, and engage in nonviolent direct actions that win results. But that takes resources and a commitment to movement-building. That’s what the DNC should be doing.”

34 WWW.Prospect.org Spring 2017

A big dilemma for the progressive movement and the Democratic Party is the weakened labor movement.

Unions’ ability to bankroll elections for friendly Democrats is tiny in comparison to money that corporations and wealthy reactionaries like the Koch brothers, Sheldon Adelson, and the Waltons provide conservative Republicans. Labor’s steady pummeling and resulting decline in membership—now only 10.7 percent of the workforce, one-third what it was in the 1950s—means it has fewer people to mobilize for campaigns and to turn out on Election Day. In 2016, union households represented only 18 percent of all voters.

Even so, unions remain the largest constituency in the progressive landscape, with close to 15 million members.

Unions still provide considerable funding for Democratic candidates and progressive coalitions, but their political budgets are much slimmer than they were only a decade ago.

Unions are in a fight for their very survival. Trump has declared war on organized labor, although the construction unions—whose leaders met with him at the White House in February, praising him for greenlighting the Keystone and Dakota pipeline projects and for pledging to push Congress to adopt a trillion-dollar infrastructure plan—didn’t seem to notice. The number of Republican-dominated states that have passed anti-union “right to work” laws has increased from 22 in early 2012 to 28 today, including once-union-friendly states like Michigan, Wisconsin, and West Virginia. Republicans have designed these laws to weaken unions and remove one of the progressive movement’s key pillars. Public employee unions also expect court rulings, initiated by right-wing groups, that will ban automatic dues payments. Unions will be prioritizing several governors’ races next year in order to thwart and reverse the right-to-work momentum.

Without the labor movement as the Democrats’ fulcrum, there’s no key power player that can bring all the core constituencies together to strategize about targets, resources, recruiting and training candidates, policy, voter registration and turnout, and message. Perhaps the PerezEllison team at the DNC can play that role, but they have not yet been tested.

When progressive activists are asked to identify how they are coordinating their efforts to challenge Trump and build momentum for the 2018 and 2020 elections, they talk about the different “tables” they are invited to.

The mosaic of liberal and progressive groups—including unions, Planned Parenthood, Demos, the Working Families Party, MoveOn.org, the Center for Popular Democracy, the Center for Community Change, Color of Change, EMILY ’s List, Next Generation, the Natural Resources Defense Council, the Sierra Club, the Human Rights Campaign, People’s Action, the NAACP, PICO, the National Council

tom williams / cq roll call via ap images

tive Keith Ellison’s campaign for Democratic National Committee chair, a post he narrowly lost to Tom Perez, Obama’s labor secretary and a seasoned progressive who was unfairly characterized as the candidate of the party’s “establishment.” Perez immediately asked Ellison to serve as the DNC ’s deputy chair, a bow to the Sanders wing and an effort to unite the party for the upcoming election cycle.

Containing Trump

of La Raza, United We Dream, the ACLU, the Progressive Change Campaign Committee, Wellstone Action, Mijente, and Caring Across Generations—join forces in overlapping meetings, conference calls, and coalitions.

But some activists resist the notion that the progressive movement needs a centralized war room, which they disparage as “top-down” planning. In the wake of Trump’s election, longstanding groups are still figuring out how to work with the many new players and activists around protest actions, lobbying efforts, and elections.

Democrats and their progressive allies are also divided between those who feel the necessity of cutting deals with Trump on issues such as trade and infrastructure, and those who insist that any compromising with Trump results in “normalizing” a man they view as an authoritarian, or even a neofascist.

AFL-CIO President Richard Trumka, one of Trump’s fiercest critics, is in a tricky position. An estimated 44 percent of union households voted for Trump, a higher margin than they have given past Republican candidates.

Trumka has tried to walk that tightrope by saying that he’d work with Trump when the president did the right thing, while broadly hinting that this was vanishingly unlikely. But when Trumka went on Fox News and said, “Will we partner with him? Absolutely. Will we partner with him to try to rewrite the immigration rules of the country? Absolutely,” his comments had the progressive blogosphere in an uproar.

Progressives were also upset when any left-leaning Democratic senators voted to confirm Trump’s cabinet nominees. They even criticized Senator Elizabeth Warren—many progressives’ favorite candidate for president in 2020—when she cast her vote in favor of Ben Carson to be the next secretary of housing and urban development.

In contrast, Planned Parenthood won progressive plaudits when it rejected Trump’s proposal to restore its federal funding (almost $500 million a year) if it agreed to stop providing abortions. “Offering money to Planned Parenthood to abandon our patients and our values is not a deal that we will ever accept,” said Dawn Laguens, the group’s executive vice president. “Providing critical health care services for millions of American women is nonnegotiable.”

But the reality was that Planned Parenthood rebuffed the offer in the midst of its discussions with the Trump administration. They were, in fact, negotiating with Trump. But they couldn’t reach an agreement.

As part of the resistance to normalizing the man and his policies, Stephen Colbert, Samantha Bee, Trevor Noah, John Oliver, and Alec Baldwin mock Trump on television on a regular basis. Meryl Streep spent six minutes condemning Trump at the Golden Globes without mentioning his name, which nevertheless triggered one of

Trump’s Twitter tantrums. The mainstream media have begun using the word “lie” in headlines and news stories to describe some Trump statements. Sleeping Giants, a social media campaign, successfully pressured more than 1,000 companies to stop advertising on the white nationalist website Breitbart, which was run by Trump’s closest adviser Steve Bannon. Members of Super Bowl champions the New England Patriots announced they’ll refuse to meet with Trump at the White House, while the vice president of the Baltimore Orioles said that if it were up to him, he wouldn’t let Trump throw out the first pitch on opening day. This year’s Super Bowl featured commercials for Coca Cola, Budweiser, and other sponsors that promoted diversity and tolerance—a not-very-subtle dig at Trump’s attacks on immigrants, Muslims, and others. In one ad, hair-product company It’s A 10 warned viewers that we’re “in for four years of awful hair.”

Indeed, many Americans—not just liberals and progressives—view the prospect of four years of Donald Trump in the White House as frightening. He has already inflicted much suffering on vulnerable Americans, and more pain is in the offing. It is uncharted territory. Nobody has a clear road map. But the upsurge of protest in the streets and political activism in the precincts is promising—not only to win back the House next year and put a progressive Democrat in the White House in 2020, but also to build an ongoing movement for change.

Containing Trump, and using that energy to rebuild a persuasive progressivism, is a challenge unlike any other we’ve faced. Looking back on a century of organizing, there were periods when large numbers of ordinary people were mobilized for years, even for decades. But the struggles to build unions, the anti-war movement of the 1960s, and the fights for civil rights, women’s rights, disability rights, LGBT rights, and environmental justice were each about a reasonably well-defined project with concrete objectives.

The movement to resist Trump is in a whole other category. Its goal is nothing less than to save American democracy, and then to use that mass mobilization to resume the project of creating a humane America that is more like social democracy than corporate plutocracy.

The challenges are on multiple fronts, but never has the need for solidarity been so urgent. To succeed, this movement will require a permanent increase in the level of popular engagement—a reinvigoration of democracy to save democracy.

The stakes have never been higher. Trump is too dark a threat to use words like “blessing in disguise.” The best response is to defeat Trump’s fake populism and his appeals to fear and bigotry by showing the world that the American people are more decent than he is.

To succeed, this movement will require a

permanent

increase in the level of popular engagement.

Peter Dreier teaches politics and chairs the Urban & Environmental Policy Department at Occidental College.

He is the author of The 100 Greatest Americans of the 20th Century: A Social Justice Hall of Fame.

Spring 2017 The American Prospect 35

How California Hopes to Undo Trump

America’s mega-state is now clearly its leftmost, too — and on social insurance, climate change, and immigrant rights, it has more capacity and desire to defeat Republican reaction than any other institution.

By Harold M ey ers on

S

pasms of fear often shake California, a state prey to earthquakes, fires, and floods. One such spasm—a manmade one—is shaking the state today.

Business is down at groceries featuring Mexican and Central American food, and at other stores catering to an immigrant clientele. The possibility of stakeouts by Immigration and Customs Enforcement agents has led thousands of Angelenos to abbreviate their daily rounds.

“Since Election Day, children are scared about what might happen to their parents,” says Angelica Salas, executive director of the Coalition for Humane Immigration Rights of Los Angeles. “And parents for their children.

We fill out at least ten guardianship letters every day for [undocumented] parents who fear for their [U.S. citizen] kids if they—the parents—are deported.”

The fear is rooted in the grim reality of the new president’s war on immigrants, and in the power that ICE possesses to wage that war. “Sanctuary city, or sanctuary state, is a misleading term,” says State Senate President Kevin de León, who more than any other public official has emerged as the leader of California’s resistance. “It creates the image of an invisible force field you’re safe behind, or reaching home base when you’re a kid playing tag. Actually, that force field doesn’t exist. If you’re undocumented, ICE can pick you up whether you’re in Paducah or liberal Santa Monica.” ICE can and does conduct sweeps in search of undocumented immigrants, and it doesn’t need a warrant to do so.

All of which has made California’s undocumented—about 2.5 million, by recent estimates, fully one million of them in Los Angeles and Orange Counties—and their family members who are citizens, deeply and understandably fearful.

It has also made millions more Californians angry. The Trump crackdown on immigrants has few supporters in the Golden State. In a January poll, the Public Policy Institute of California asked respondents whether they believed “there should be a way for them [undocumented immigrants] to stay in the country legally if certain con-

36 WWW.Prospect.org Spring 2017

ditions are met,” or believed instead that “they should not be allowed to stay in this country legally.” Fully 85 percent said they should be allowed to stay, a figure that included 65 percent of Republicans. Asked further if they favored or opposed “California state and local governments making their own policies and taking actions—separate from the federal government—to protect the legal rights of undocumented immigrants,” 65 percent “favored” while just 32 percent “opposed.”

Sentiments like that led to the state’s Trust Act of 2013, which forbade county jails from notifying ICE when releasing undocumented prisoners unless they’d been held or convicted for serious crimes. Sentiments like that have led to a bill currently before (and likely to pass) the legislature that would appropriate state funds to provide potential deportees in immigration court with attorneys. Sentiments like that have led cities up and down the state to forbid their police departments from participating in ICE arrests or inquiring about suspects’, or witnesses’, or anyone’s, immigration status. Sentiments like that have led de León to author another bill before the legislature that would require all local police and jail officials, whether in “sanctuary cities” or not, to devote no state or local resources to working with ICE on any immigration matters. And sentiments like that led thousands of Californians to rush to local airports, unprompted by any organization, to protest ICE’s interdiction of travelers from predominantly Muslim countries.

California is the Trump administration’s most formidable adversary, not only on matters of immigration, but on damn near everything. No other entity—not the Democratic Party, not the tech industry, surely not the civil liberties lobby—has the will, the resources, and the power California brings to the fight. Others have the will, certainly, but not California’s clout.

There’s no mystery to the clout. California is immense, a state of 40 million, home to an economy that is the world’s sixthlargest. But the will? Has the home state of Richard Nixon and

rich pedroncelli / ap images

Containing Trump

Ronald Reagan truly become so overwhelmingly progressive?

It clearly has. What was remarkable about California’s performance in last November’s election wasn’t merely that it went for Hillary Clinton over Donald Trump by a margin of four million votes; that’s partly just a testament to the state’s size. What was remarkable was that the share of its voters who cast ballots for Clinton—61.5 percent—was greater than any other state’s.

And this is hardly the only metric that spotlights California as the nation’s most progressive state. California is one of just six states that have a Democratic governor and Democrats in control of both houses of the legislature (California Democrats actually hold two-thirds of the seats in each house). No Republican has been elected to a statewide office (there are ten of them, counting the two U.S. senators) since 2006. In 2012 and again in 2016, state voters have approved ballot measures that made the nation’s most progressive state income tax even more progressive.

Since Jerry Brown became governor in 2011, he and the legislature enacted laws that expanded Medicaid so comprehensively (including a provision that extended it to undocumented minors) that the percentage of uninsured Californians dropped from 19 percent to 7 percent; raised the minimum wage to $15; created the nation’s first automatic retirement plan for workers (who numbered an estimated 6.8 million) whose employers didn’t provide one; registered as a voter every California citizen who showed up to get a driver’s license; set the highest fuel-efficiency standards in the nation; and appropriated $30 million annually for legal assistance for immigrants before Donald Trump was even nominated. Currently before the legislature, with a good chance of enactment, is a bill that would have the state cover all the costs—tuition, room, board, books—incurred by students at the University of California and the California State University system, and another bill, less of a sure thing, that would establish single-payer health care in the state.

The state’s leftward movement continues apace. Hillary Clinton carried 46 of the state’s 53 congressional districts, including seven represented by newly nervous Republicans. She carried Orange County—ancestral home of the Goldwater Revolution—thereby becoming the first Democrat to do so since Franklin Roosevelt in his landslide victory of 1936. All four Republicans with Orange County districts will face strong challenges in 2018.

Californians know the state’s demographics explain a lot of this change, but only a relative few can tell you what the forces were, and are, that translated the rising number of Latinos and Asians into progressive political power. Both California and Texas, for instance, are 39 percent Latino, but in California, the nation’s most strategically savvy labor movement politically socialized and mobilized the Latino community as Tammany once did the Irish, while Texas, all

but devoid of a labor movement, has seen no such development. California’s fast-growing Asian communities, which constitute nearly 15 percent of the state’s population, have moved left in recent decades, with more than 70 percent of their vote going to Democrats in recent elections. Add the Latinos and Asians to the state’s African American population and the large number of white liberals in the state’s metropolitan centers, and California’s newfound status as the nation’s leftmost state should come as no mystery. Indeed, among the world’s six largest economies—the United States, China, Germany, Britain, France, and the Golden State—California’s citizenry and elected leaders are clearly the most progressive.

And they have the wherewithal, along with the will, to fight the Trump administration on climate change, social insurance, immigrant rights, and much else.

President Trump has journeyed to Detroit and announced that the fuel emissions standards put in place by his predecessor—initially California’s standards, which the Obama administration then decided to adopt nationally—were job killers. He pledged that his new man at the Environmental Protection Agency, Scott Pruitt, would scrap them.

But Pruitt can’t scrap them for California, or for the 13 other states that adhere to California’s standards. Unless Trump means to revoke the waiver that permits the state to have higher standards than the feds, 40 percent of the domestic auto market will still have those tighter standards.

California’s unique legal standing in matters of clean air and climate change began, of course, as a response to Los Angeles’s eternal battle with smog. The state started

Legal Insurance: Former attorney general Eric Holder and California State Senate President Kevin de León, who hired Holder to provide legal counsel against Trump initiatives

Spring 2017 The American Prospect 37

regulating tailpipe emissions in 1966, and when the federal government first enacted the Clean Air Act in 1970, it allowed California, and only California, to set its own clean air standards so long as they were stricter than the feds’. In 1977, the law was amended to permit other states to adopt California’s standards, too.

In 2002, California augmented its concern over the quality of gas and emissions with concern for their quantity. Worried by climate change and the fossil fuel emissions that were speeding that change, the state passed a law limiting auto emissions by demanding stricter fuelefficiency standards—and those 13 other states, thanks to that 1977 amendment, adopted those standards as well.

Over the years, the EPA has granted California about 100 different waivers, but the George W. Bush administration denied the one for increasing fuel efficiency to curtail climate change. California took Bush’s EPA to court, and the case was still in progress when Barack Obama became president and the EPA granted the waiver. More than that, as a condition for the 2009 auto bailout, and then again in 2012, Obama got the car companies to agree to his EPA’s standards, which the EPA had written to match California’s.

Trump’s announcement, then, did nothing to affect California’s standards; indeed, California was a signatory to the 2012 agreement and its deal with the auto industry is still in place, as, presumably, are those of the other states. To negate California’s accord, Trump’s EPA would have to revoke its waiver that permitted California to set

38 WWW.Prospect.org Spring 2017

its standards. That would be breaking new legal ground, as the EPA has never before attempted to revoke a waiver.

The problem for Trump and Pruitt, says Ann Carlson, a professor of environmental law at UCLA , is that “to be effective, to give the automakers what they want, the only way is to roll back the California waiver.” For now, that’s apparently a bridge too far for Trump’s EPA , though there’s no telling what it may do later. It’s already too late to roll back the first set of stricter standards, due to be in place by 2018, since the auto industry has already made the investments to meet those specifications. It’s not until 2022 that the next set of still stricter standards are supposed to take effect, so Trump and Pruitt have some time before they decide whether to revoke the waiver and be taken to court.

Such a case, says Carlson, would be heard in the D.C. Circuit Court of Appeals, which currently has a majority of Democrat-appointed judges. It’s not clear it could even advance to the Supreme Court, since, as Carlson says, it poses statutory rather than constitutional questions. But if it were to advance, the deciding vote might be Anthony Kennedy’s—who’d have to decide whether to vote as a Republican or a Californian.

Even if Trump were to revoke the waiver and prevail in court, California would still have one legally unassailable option: Placing a much higher sales tax on new cars and trucks that fail to meet what would have been the state’s standards than the tax on cars that do meet those standards. California’s market share is so large that this might

r o n a n t i v o n y / s i pa v i a a p i m a g e s

Reflecting the Majority: These Los Angeles demonstrators are in sync with the 85 percent of Californians in a January poll who said they preferred giving legal status to the undocumented rather than deporting them.

Containing Trump

compel Detroit to still turn out more efficient cars. “We’re at least 10 percent of the national market,” says one state air quality official, “and 10 percent matters to manufacturers.

When we’ve set efficiency standards before, the manufacturers have made a product to match those standards.” And once they go to the trouble of making those products, they just might make more to sell to buyers across the nation.

The biggest hit that California might have to take from the White House and the Republican Congress would be an attack on Medicaid. Because the state has used the law’s discretion to extend Medicaid (which in California is called MediCal) to as many eligible recipients as possible, fully 14 million Californians get their health coverage through the program—about one-third of the state. Roughly 20 percent of all Americans on Medicaid are Californians.

Expanding both Medicaid and subsidized insurance under the terms of the Affordable Care Act has been a notable California policy success. “Prior to the ACA , we ranked sixth among the states in the percentage of uninsured,” says Anthony Wright, executive director of Health Access California. “But no other state had as big a reduction in the number and percentage of uninsured as we did.” California extensively marketed the programs, and did automatic enrollments of food stamp recipients. “We have the uninsured rate down to 7 percent now, and are making progress toward universality,” Wright adds. “But if the Ryan plan is enacted, we could be set back for an entire generation.”

Some of the highest rates of Medicaid coverage are found in California congressional districts represented by Republicans—particularly in agricultural areas of the Central Valley. “Half of [GOP Representative David] Valadao’s 800,000 constituents are on Medicaid,” says Wright, adding that Valadao’s district was carried by Clinton. “The percentage of residents on Medicaid in Kern County is 45; in Fresno, 50; in Tulare, 55. Cutting back Medicaid in the Central Valley would affect half those Republicans’ constituents; you’d see closures of hospitals that serve everyone.”

Chris Hoene, executive director of the California Budget Project, estimates that the cuts to California Medicaid funding in the Ryan bill would come to between $7 billion and $10 billion. Could the state make that up by raising its own taxes?

The problem with that is that the voters just approved more high-end tax hikes, along with a higher tobacco tax, in November. “We already have the highest income tax rates on high earners of any state,” says Wright. “If the differential between us and other states is 5 or even 10 percent, they’re not likely to move, but if it’s 30 percent?

Nobody knows.” Other options include a sales tax on services, or a repeal of Proposition 13’s limits on property taxes, at least for commercial properties, which might go on the 2018 or 2020 ballot. It’s been holy writ in California for

decades that voters would never tamper with Proposition 13. Whether massive cuts to state services would make a difference is anybody’s guess.

A more plausible option might be to enact a state estate tax, which California tax expert (and occasional American Prospect contributor) Roy Ulrich estimates could bring in as much as $4 billion annually. California once had an estate tax of its own, but voters abolished it in 1982, at the height of Proposition 13 tax-cutting mania. Democratic State Senator Scott Wiener has announced he’ll try to put a measure on the 2018 ballot that will recreate such a tax if, and only if, the Trump administration follows through on the president’s vow to repeal the federal estate tax. Wiener’s proposal (and Ulrich’s idea) is to set its rates identical to those in the federal tax, so that heirs to wealthy estates would be paying the same amount—only to Sacramento rather than Washington. If enacted, the state could use those funds to keep more Californians on Medicaid—and set some aside for cities whose police departments and jails lose funding as a result of Trump’s attack on sanctuary cities and states.

One other aspect of California’s social insurance that’s under attack in Washington is the state’s automatic retirement set-aside program, that’s scheduled to go into operation next year. As crafted by de León, the program requires employers who don’t offer retirement benefits to automatically deduct a small portion of their employees’ paychecks to be invested in a state-run retirement investment fund, unless the employees opt out of the program. De León had to persuade President Obama and Labor Secretary Tom Perez to alter federal Employee Retirement Income Security Act regulations to make the program legal. (“And we’d like to have created an employer contribution, too, but that required an act of [the Republican-controlled] Congress,” de León says.)

Since the current Congress convened, a number of Republican members have suggested it should alter the ERISA regulations to keep the program from going into effect. Their actions have been prompted by major banks and other financial institutions that offer retirement programs of their own.

“This is going to be the largest expansion of retirement security since 1935,” says de León. “We’ve created a new market for people left out of the existing system. It doesn’t take a market away from Wall Street. But Wall Street doesn’t like that it will charge lower fees than they do.”

Congress has yet to act on the GOP proposal—which would not only scuttle California’s plan, but those that other states adopted once the ERISA regulations were altered.

If Trump revokes the waiver that’s allowed California to

set its own

fossil fuel standards, the state could still levy a high sales tax on gas guzzlers.

On a wind-whipped Saturday in late February, a crowd of undocumented immigrants and their families, about 700 in all, have come to Los Angeles Trade Tech,

Spring 2017 The American Prospect 39

The Los Angeles AFL-CIO has formed a rapid-response team that will offer

financial assistance

to the families of immigrant breadwinners who’ve been detained or deported.

a community college in downtown L.A., to learn what they can do to fight deportation. Convened by de León, the “Know Your Rights” forum features attorneys talking one-on-one with worried Angelenos. It also features County Sheriff Jim McDonald and Deputy L.A. Police Chief Robert Arcos, who both assure the crowd that their officers will not participate with ICE in any investigations or arrests, or inquire about anyone’s immigration status. “We know you’re suffering from fear, anxiety, and distrust of law enforcement,” Arcos says, “but know that your LAPD is here to serve and protect you.” The crowd greets this bit of what is normally pro forma boilerplate with cheers.

Several of the speakers are immigrant-rights attorneys, including the dean of the Los Angeles immigrant-rights bar, Peter Schey. “When people know their rights, they will not be deported,” Schey begins. “If ICE is at your door, you have the right not to let them in unless they have a court order. You have the right to remain silent—99 of 100 deportations are due to statements made to agents at the time of arrest. They will not have any evidence against you if you remain silent. Silencio! Silencio! Does everybody understand that?”

“Yes!” the crowd responds.

Much of California’s civil society has rallied to the immigrants’ defense. The Los Angeles County Federation of Labor, a body of 300 local unions, has formed a rapidresponse team that will offer financial and other forms of assistance to families whose breadwinners are detained or deported. The federation’s Miguel Contreras Foundation (named after the late labor leader who turned the city’s labor-Latino alliance into L.A.’s most formidable political organization) has assembled a group of more than 100 private attorneys who will work pro bono or “low-bono” for undocumented immigrants in deportation proceedings.

“The question before us,” says Rusty Hicks, the federation’s executive secretary-treasurer, “is how do we make this different from 1942, when Japanese Americans were carted away and no one lifted a finger.”

The Service Employees International Union, which has 700,000 members in California alone, is organizing a massive pro-immigrant May Day rally—the second time it’s undertaken this task. In 2006, when immigration reform was before Congress, an estimated one million people, the vast majority Latino, filled Wilshire Boulevard for miles in support of legal status. Eleven years later, in much more dire circumstances, SEIU and its many allies are hoping for a similar turnout—this time bringing together not just Latinos and immigrants, but the Angelenos who turned out for the Women’s March as well. That kind of turnout wouldn’t alter federal policy, but it would at least display Californians’ support for immigrant families.

40 WWW.Prospect.org Spring 2017

Thousands of Californians are already working to do the one thing that would alter federal policy: Cow Republican members of Congress to heed the better angels of their nature (that is, oppose Trump’s immigration crackdown, Ryan’s gutting of health coverage, and the thousand other unnatural shocks the GOP is promoting), and defeat them come 2018. Of the seven California GOP House members whose districts Clinton carried last November, two come from Central Valley districts that are home to hundreds of thousands of Medicaid recipients. Four hail from Orange County, including Darrell Issa, who eked out the narrowest of victories last November, winning by a scant 1,600 votes.

Fully aware of the approaching political storm, Issa has called for a special prosecutor to investigate Trump’s Russian connections, and said he’s not committed to voting for Ryan’s bill.

On a late February evening, I travel to Fullerton in the heart of Orange County to attend one of the five town-hallwithout-the-member-present meetings that Indivisible had called in the district of Ed Royce, a GOP congressman who has flown beneath the public’s radar since he was first elected in 1992. Clinton carried Royce’s district by 8.5 percentage points, and the 150 attendees, many of them never politically active before, hope that margin means Royce can be beat next year.

The side room of a Sizzler steakhouse is packed, even though the meeting was called just two days previous. It’s largely a white middle-class gathering, with some longtime Democratic activists, League of Women Voters stalwarts, and staunch progressives making up perhaps half the attendees. They’re not really representative of the district, which is one-third Latino, one-third white, and one-third Asian, including a large Vietnamese community that has long voted Republican, like most refugees from communist countries. Like Cuban Americans, however, the children of Vietnamese refugees have been voting more Democratic, and the grandchildren, overwhelmingly so.

The Indivisibles are eager to join up with groups that may be new to them and come from other parts of the progressive cosmos. Many sign up for a candlelight vigil the next night outside Royce’s home, an event sponsored by the largely Latino SEIU Orange County janitors’ local union. A number also register for precinct walks planned for the day following by Knock Every Door, a group staffed in California by veterans of Bernie Sanders’s presidential campaign.

Middle-class white liberals, a mobilized Latino community, left-moving Asian Americans, a powerful environmental community, a uniquely vibrant union movement, a tech sector willing to fund at least some anti-Trump campaigns, women coming forth as candidates, properly enraged millennials, and some deft political leaders—these are the pillars of the California resistance. Together, they form Trump’s most potent opponent.

Containing Trump

Will Suburban Activism Pave the Democratic Way to the House?

If they’re to retake Congress in 2018, Democrats need their newfound activist hordes to focus on health coverage— and diverse or upscale (or both) swing districts.

By Ju s tin M iller

O

n an unseasonably warm Friday evening in late February, more than 100 residents of Virginia’s Tenth Congressional District filled the gymnasium of a community center in Sterling, one of the sprawling towns of Loudoun County in the exurbs of Washington. Constituents had for weeks been trying to get Republican Representative Barbara Comstock to go beyond the controlled environs of a tele-town hall and face her constituents in person. They mounted daily call-in campaigns and protests outside her district offices, asking her to attend. In the end, she was a no-show, saying she had a long-scheduled event at the same time.

One by one, district residents went before the microphone, listed their hometown and ZIP code for the record (often with a pithy comment about not being a paid protester) before asking questions on a series of pressing issues— national security, President Trump’s conflicts of interest, immigration, education, environmental protections, and, most prominently, the future of the Affordable Care Act. In response to each question, one of several volunteers would parse Comstock’s voting record and public comments to piece together her position. Oftentimes the resulting answer was incomplete or evasive. When there was a clear position—whether for rolling back environmental regulations or boosting school vouchers—it drew jeers from the crowd. One older woman repeatedly held up a sign that read, simply, “Boo!” Toward the end of the evening, Janine Murphy-Neilson of Herndon stepped up to the microphone in a “Nevertheless, She Persisted” T-shirt and talked about her husband, who has chronic myeloid leukemia. “Prior to [the] ACA , I was frantically worried about his preexisting condition and the $8,000 a month that his prescription would cost without insurance,” she said. “I would like to know how much is it going to cost to repeal and replace, and how do

you justify that expense when Republicans would do absolutely nothing to try to help make this a better-working [law] for the American people?”

One of the health-care policy volunteers referenced comments Comstock made during two of her recent tele-town halls about how to pay for the ACA replacement, which amounted to vague platitudes about the need for “smallbusiness pooling,” making health care “patient-centered,” decreasing Washington bureaucracy, and promoting tort reform and wellness incentive programs. The crowd was not satisfied.

Barbara Comstock may be part of a newly endangered species. She was re-elected in an increasingly purple district that swung strongly for Hillary Clinton by 10 points in 2016 after going for Mitt Romney by just over one point in 2012. While she carefully casts herself as a moderate Republican, Comstock has voted with Trump 100 percent of the time thus far—which, according to a ranking by FiveThirtyEight, makes her the House member third-most out of line with the way their district voted.

With the Trump administration and the Republican Congress both off to the rockiest of starts, and with progressive and Democratic activists mobilized as never before, Democratic strategists hope, and increasingly believe, that Comstock and her peers—the 22 other Republican House members from districts that Clinton carried in November—can be defeated in the 2018 midterm elections.

Longtime activists and first-timers are eager to target those who aid and abet Trump’s agenda. They’ve become newly attuned to every quote and vote of rank-and-file House Republicans.

But protest is one thing; strategic electoral activity is quite another. The question before Democrats is whether this surge of grassroots activism can evolve into a wellorganized, effective political movement that can sustain

Spring 2017 The American Prospect 41

Anti-Comstockery: Protesters outside the offices of Republican Barbara Comstock, the Virginia congress member whose district Hillary Clinton carried and that Democrats hope to win in 2018

engage and pressure your member of Congress. The team behind the guide sought to mirror the successful grassroots pressure of the Tea Party protests that in 2009 caught Democrats completely off-guard.

In the age of Trump, with people hungry for ways to engage, the relatively basic civics primer published by Indivisible’s founders has resonated as the guiding document of the resistance. It has been downloaded more than one million times and spurred the creation of several thousand local Indivisible chapters, with at least two in each of the nation’s 435 congressional districts, according to the organization. In turn, these local groups have organized

42 WWW.Prospect.org Spring 2017

massive call-in campaigns, actions outside representatives’ district offices, and public town halls.

In Lovettsville, Virginia, a small and affluent enclave in Comstock’s district, Kristen Swanson, who owns a pottery studio in town, reached out to five women in her life right after the election who, like her, were not very politically active, but were distraught by the results of the election.

With no idea of what to do, they started brainstorming.

Midway through December, Swanson stumbled upon the Indivisible Guide, printed it out, read it about 20 times, and thought to herself, “This is it; this is what we do.”

In early January, she organized the first meeting for the Lovettsville Indivisible—12 people showed up and, by virtue of doing so, became the steering committee. Soon after, she initiated contact with Comstock’s office and set up a meeting. In four days, she—along with other nearby Indivisible groups—rallied 58 people to discuss concerns about the Republicans’ plan to repeal the Affordable Care Act. They arranged for constituents to tell their stories to Comstock’s staffers and put together a packet detailing personal experiences and concerns about repeal.

Swanson’s story has its counterparts all across the nation—most importantly, in districts like hers that could swing Democratic in 2018. In the Republican Representative Ryan Costello’s suburban Philadelphia district— which, like Comstock’s, was carried by Clinton—Claire Witzleben, a stay-at-home parent with a master’s degree in health-care administration, has been organizing weekly protests since mid-January outside Costello’s district office in West Chester. One week the protest topic is Trump’s alleged connections to Russia, the next it’s the president’s deportation plans or the ACA repeal. Before the election, Witzleben admits, she didn’t know the name of her representative or even what district she lived in. Trump’s victory, she says, quickly woke her up. Now, Witzleben and Tammy Harkness, an engineer, are the lead organizers for one of the area’s local Indivisible affiliates, dubbed the Concerned Constituents Action Group, which organized a town hall meeting for Costello on the last Saturday of Congress’s President’s Day recess. For both women, this was their first time engaging in political organizing.

Costello’s Sixth District, as Democrats describe it, “looms like a dragon descending on Philadelphia from the west,” carving jaggedly through the towns of suburban Chester, Berks, Montgomery, and Lebanon counties. It’s a mostly white district that mashes up very wealthy suburbs with more rural pockets—and one that Republicans have held, despite consistent targeting by Democrats, since redistricting in 2000. Costello, a second-term member, wiped the floor with his Democratic challenger in 2016, winning by 14 points. However, Romney-voting Republicans ditched Trump en masse, giving Clinton a narrow vic-

s c o t t m a s o n / w i n c h e s t e r s ta r v i a a p i m a g e s

itself till the midterms—and avoid devolving into cacophonous disarray of protest without politics.

In the wake of Donald Trump’s election, there’s been no shortage of activism on the left. The opening salvo was the Women’s March on Washington the day after Trump’s inauguration, drawing more than 500,000 to the nation’s capital and millions more around the country and the world. Since then, participants have organized more than 5,000 “huddles”—small, neighborhood-based meetings to plot the next steps of resistance.

Another cornerstone of the activist surge has been the Indivisible Guide, a document compiled by former congressional staffers offering suggestions on how best to

Containing Trump

s ta c e y f o n a s h / c o n c e r n e d c o n s t i t u e n t a c t i o n g r o u p

An Aroused Electorate: A Phoenixville, Pennsylvania, (in the Philadelphia suburbs) town hall—minus the congressman, Republican Ryan Costello, in yet another district where Clinton beat Trump

tory in the district of just over one-half of one percentage point. If that didn’t put Costello on notice, he’s now feeling the heat from organized constituents as well.

Some 400 people filled the auditorium of the local high school in Phoenixville, a small borough of Chester County, on the weekend after President’s Day. Many of them lined up to direct questions to a photo of the absent Costello that had been taped to a podium on the stage.

As in Sterling, a number voiced concerns about Trump’s alleged ties with Russia and spoke passionately about their personal experiences with Obamacare and fears about losing coverage for themselves or their families. About an hour into the town hall, after several dozen questions had been posed to Costello’s photo, a woman in a salmoncolored shirt and jeans walked up to the microphone and said, “I’ve been looking at your picture … and have been thinking to myself, you know, it’s really a possibility that this guy isn’t going to watch this tape; it’s a real possibility that he’s going to ignore all these people in this room and what they’re saying.”

“What I want to say to you very, very sincerely from my heart, is that this is a movement, and it’s not going to go away,” she declared, instantly drawing a standing ovation.

If Costello wanted to be re-elected, she added, it would be wise to listen to what his constituents were saying.

Congress’s first recess of the year was also the first opportunity for anti-Trump activists to focus their indig-

nation not just at Trump, but at representatives who will come before voters in 2018. With members of Congress headed back to their district, it was these groups’ first major chance to translate energy from Facebook pages into real life, and palpable electoral politics. Like Comstock and Costello, many Republican representatives avoided in-person interactions with angry constituents by holding tele-town halls or by announcing last-minute town halls in remote areas. Members who did show up often faced down crowds that were demanding answers. Videos of constituents dressing down their members of Congress quickly went viral; speculation over whether this was the first act in a Tea Party–style takeover quickly followed. “If it fizzled, if there was nothing to show for it during the recess, then it would have allowed Republicans in Congress and Trump to continue moving forward with their agenda,” Indivisible co-founder Angel Padilla says.

With 23 Democratic senators, many from red states, up for re-election, hopes of taking back the upper chamber in 2018 are slim, if not nonexistent. The likeliest chance of breaking Republicans’ unified control of the federal government lies in the House, where Democrats will need to pick up 24 seats to wrest control from Speaker Paul Ryan and the GOP. History tilts in Democrats’ favor.

Since 1982, the president’s party has lost an average of 28 seats in first-term midterm elections. If Trump’s approval

Spring 2017 The American Prospect 43

ratings remain in the gutter, he could drag down even more House Republicans. But midterm turnout generally skews older, whiter, and more conservative, and the GOP benefits from the heavily gerrymandered districts they drew for themselves in 2010.

“Looking at the House right now, it might seem like Republicans’ structural advantages are insurmountable,” says David Wasserman, House editor for The Cook Political Report. “If we look at what we saw in 2009, no one really thought Republicans had a chance—and they took back 23 more than they needed to.”

Democrats are already trying to tap into the early grassroots energy flowing from the Women’s March, Indivisible, and all the assorted activism. Less than two weeks after Trump’s inauguration, the party’s House campaign arm, the Democratic Congressional Campaign Committee (DCCC), recognizing the need to take advantage of early grassroots energy, funneled money to state parties to hire full-time organizers in 20 of its top Republican district targets. Dubbed the “March into ’18” accountability project, organizers will recruit local volunteers and try to build a more formal coalition with groups already mobilizing in district. The DCCC also announced it added 635,000 supporters to its list in January alone—a 20 percent growth of its total base.

44 WWW.Prospect.org Spring 2017

The Democrats’ path to a majority begins with the 23 seats—mostly well-educated and higher-income suburban districts—that voted for Hillary Clinton but elected Republican House members, including Comstock’s and Costello’s.

These types of seats are seen as must-wins.

The 23 Clinton-Republican districts are marked by more diverse populations than the national average or a higher percentage of residents with college degrees than the national average—or both. Eighteen of the 23 have an above-average share of college-educated whites, and eight of those seats have a higher share of both minorities and white college grads. As The Atlantic has reported, such so-called “hi-hi” districts already form the core of the Democratic House caucus: Democrats hold 87 of the 103 districts that fit that profile.

Costello’s district, for instance, is far whiter than the national average; about 86 percent compared with around 77 percent nationally. However, 42.5 percent of the district’s adults have a bachelor’s degree or higher, compared with about 33 percent nationwide. Its median household income is $80,000, almost $30,000 more than the national average. Comstock’s Northern Virginia district has become notably more diverse over the years. In 2000, Loudoun County, where the district is centered, was 82 percent white. Now it’s about 70 percent white. The dis-

nick agro / or ange count y register via ap images

Orange County Rising: Demonstrators protesting Trump’s travel ban outside the offices of Mimi Walters—one of Orange County’s four Republican representatives who saw Clinton win their districts

Containing Trump

trict is also one of the wealthiest and most well-educated in the country. More than 54 percent hold a bachelor’s degree or higher, and its median household income is nearly $115,000.

Half of the 23 Clinton-Republican districts are found in bluing Texas and California suburbs. If there’s one place that epitomizes the type of areas where Democrats need to start winning House races, it’s Orange County, California, long the epicenter of Republican politics in the Golden State. Four Orange County Republicans—including Darrell Issa, who might just be the most vulnerable member of the House, Ed Royce, Mimi Walters, and Dana Rohrabacher—are seen as beatable by Democrats. Their districts all voted for Clinton, as did Orange County as a whole—the first time the county had voted for a Democratic presidential candidate since Franklin Roosevelt’s 1936 landslide victory.

Absent a dramatic change in the Democrats’ political messaging, House analysts think the well-educated and diversifying suburban seats that are moving toward Democrats will be better bets for a 2018 shift than the blue-collar and more rural seats that have been slipping away from the party. It remains to been seen, though, whether Romney Republicans’ distaste for Trump will trickle down to the House. “I’m not convinced that the Orange County Republican who voted against Trump is ready to throw out Mimi Walters or Ed Royce,” says Nathan Gonzales, the editor of the political analysis newsletter Inside Elections.

In total, the DCCC has cast an ambitiously wide net of 59 target districts to start from, including a second rung of ten flippable seats that Clinton narrowly lost by four points or less. “I don’t think it’s that realistic to be targeting districts that Trump won by more than 15 points,” says Wasserman. His rationale goes back to the 2010 Tea Party wave; Republicans picked up 66 seats, but not a single one that Obama had carried by more than 15.

Wasserman says that the DCCC list of 59 includes about a dozen seats that Trump won by 15 points or more, which he says are not realistic targets. However, he points out, there are 92 Republican seats that Trump won by less than 15 points. Many of those are unwinnable, either because of local political dynamics or an incumbent’s high favorability. But there are also incumbents with unique weaknesses—whether it’s ethical or, perhaps, a particular proximity to the administration—whom Democrats hope to pick off from the herd.

Recruiting viable Democratic candidates not only in the top targeted districts but in as many races as possible will be critical. The party has often struggled with recruits, investing big money in promising candidates through the DCCC ’s Jumpstart program—which provides early cam-

paign support—only to come up short on important turf like the Philadelphia suburbs. In 2014, the DCCC made an early call to back Kevin Strouse, a then-34-year-old Army and CIA veteran, as one of its eight Jumpstart candidates to run against a top target, Mike Fitzpatrick of suburban Pennsylvania’s Eighth District. Despite the support, Strouse only narrowly beat another promising Democratic primary opponent, and then lost to the incumbent by more than 20 points. Of the 23 challengers Jumpstart backed that year, only two won.

In Comstock’s district, a long list of potential candidates are already lining up in the hope of challenging her. So far, Tenth Congressional District Democratic Chairwoman Patsy Brown has interviewed 11 interested people, while the DCCC and state progressives are reportedly courting Jennifer Wexton, a well-known Virginia state senator in the district, to run. “We have never, ever had this kind of outpouring of people,” Brown told a local newspaper. She’s been on the committee since 1992.

That said, it isn’t obvious that early support for one of several primary candidates by a national party organization would be welcomed by many local activists. The revelations that the Democratic National Committee tilted toward Clinton instead of Bernie Sanders in the 2016 primaries will likely serve as a brake on such pre-primary support in a number of 2018 contests.

For Democrats to win in these districts, they need to dramatically expand turnout among non-voters and low-propensity voters who will choose Democrats if they actually get to the polls. They also need to attract some Republicans.

Sam Wang, an elections statistician and neuroscientist at Princeton, estimates that Democratic congressional candidates would need to win the national vote by 7 to 12 percentage points to wrest control from Republicans.

Democrats pulled off those margins in 2008, but that was in a presidential election year with a popular candidate at the top of the ticket. That was also before the Republican gerrymandering that followed the 2010 census.

Analysts say it would require a massive political event for the Democrats to overcome such a stacked deck. One of those ground-shifting events could be health care. If the GOP succeeds in repealing the Affordable Care Act and replacing it with Paul Ryan’s American Health Care Act, the Congressional Budget Office estimates it will cause about 24 million people to lose coverage over the next ten years—14 million in the first year alone. It doesn’t take a political genius to see how this would endanger Republican incumbents across the board. In the hours after the CBO released its ominous scoring of repeal-and-replace, the DCCC sent out a rash of press blasts condemning Republican members on their target list—including Comstock, Walters, Minnesota’s Erik Paulsen, Colorado’s Mike Coff-

The DCCC has targeted 59 GOP-held congressional districts that

might be

swingable in 2018, 23 of which Hillary Clinton carried last fall.

Spring 2017 The American Prospect 45

Of the 23 ClintonRepublican districts, 18 have an above-average share of

collegeeducated

whites,

eight of which also have a high share of minorities.

man, and New Jersey’s Leonard Lance—who have voiced support for repeal.

“When something is about to be taken away, it’s more salient. That’s an enormous opportunity,” says Theda Skocpol, a Harvard University professor who studied the rise of the Tea Party movement on the right. “If [Republicans] proceed with repeal, it’ll be important to dramatize what the costs are going to be for actual human beings in each district.”

Analysts have already begun crunching those numbers—and they don’t look good for Republican prospects.

According to a Daily Kos analysis, there are 51 congressional districts where the estimated number of people expected to lose coverage with the repeal of the ACA outnumber the Republican incumbent’s 2016 margin of victory, including a number of districts that Clinton carried.

In Darrell Issa’s district, which he carried by fewer than 2,000 votes, there are more than 60,000 people who are projected to lose coverage.

In Comstock’s district, which she won by about 22,000 votes, 30,000 constituents are projected to lose health insurance. In Costello’s district, where he had a landslide victory, there are nearly 40,000 people who are primed to lose coverage as well.

The hardest-hit districts would be in cities and white working-class, pro-Trump areas, while many of the more upscale Clinton- GOP districts, where far fewer people benefited from Medicaid expansion and insurance subsidies, would be relatively less affected. In fact, the Ryan replacement plan would disproportionately benefit people in those districts, as it is designed to deliver tax credits to people at the high end of the middle class who are currently phased out of Obamacare subsidies, and would also deliver major tax cuts to earners in the top tax brackets who were subsidizing the costs of the ACA .

The 2018 elections, then, could likely turn not just on how effectively the Democrats can turn out their base but also on whether the Republican crusade on Obama­care—combined with a mish-mash of other Trump-related issues—will be enough for Republican Trump defectors, or reluctant Trump voters who’ve become fed up, to vote Democratic.

That will require a lot of effort from Democratic and progressive activists—and not just in swing districts.

Indivisible is not the only group that materialized out of the post-election ether to facilitate strategic activism. A trio of friends with no formal background in politics or organizing launched Swing Left, a project that aims to match liberals concentrated in deep-blue districts with their nearest swing district and coordinate in-district volunteer campaigns. “We obviously hit some kind of a nerve,” Ethan Todras-Whitehill, a writer and tutor from Western

46 WWW.Prospect.org Spring 2017

Massachusetts who came up with the idea of Swing Left, told volunteers during a February call.

So far, about 300,000 people have signed up to get involved in Swing Left, and 15,000 have volunteered for district leadership positions—including in each of the 52 districts Swing Left has targeted to keep or flip to the Democrats. “We want to get people invested in their local swing districts. We want you guys to know your local swing district representative better than you know your own representative,” Todras-Whitehill said. About 6,000 people volunteered to do research and compile in-depth dossiers on each swing district.

Wearing jeans and a red and black half-zip, Dan Schramm stood up on a chair in the corner of his living room and introduced himself to the dozens of people who were milling about, sipping drinks, munching on snacks, and talking politics. It was the first Saturday of March, and Swing Left had asked volunteers to host house parties for people interested in the organization, talk about the swing district they have targeted, and get volunteers lined up for upcoming canvassing trips. Schramm and his wife, Amanda, had decided to host one in their neighborhood in Northeast Washington, D.C., a city that had given 91 percent of its vote to Clinton. The attendees were targeting Comstock’s Tenth District seat, the far outskirts of which just barely touch the District’s western boundaries several miles from Schramm’s house.

That weekend, there were dozens of Swing Left house parties in the District and throughout Northern Virginia and suburban Maryland. Across the country, there were more than 600 house parties scheduled, with more than 11,000 total RSVPs. Like many liberals, Schramm had thought Clinton had the presidential election in the bag. “I didn’t do much,” he told me, saying that, like many, he wondered, “Who could possibly vote for Trump?” He now hopes, though, that Trump’s election is propelling people who previously weren’t all that engaged in politics to get involved, and turn out to vote in the midterms.

That’s Swing Left’s top priority. In Schramm’s living room, people signed up to volunteer to lead monthly voter registration and canvassing trips to Comstock’s district, in coordination with volunteers and progressive groups that reside there.

The group will stay out of Democratic primary contests. “Conceptually, we see ourselves as the campaignsin-waiting for the eventual nominees. Our goal is to have busloads of volunteers ready to work for them,” says Swing Left organizing director Matt Ewing.

If the path to Democrats winning back the House starts anywhere, it just might be in those Swing Left living rooms and at those Indivisible town halls.

Containing Trump

No Factions in Foxholes

Confronted by the crisis that is the Trump presidency, American progressives have overcome identity politics’ barriers and joined up in mutual defense.

By E.J. Graf f

W

e all know this: Across the blue United States, there’s an unprecedented revolt against Donald Trump. Between three million and five million attended the January 21 Women’s March, whether in Washington, D.C., or around the nation—as far north as Fairbanks, Alaska, as far south as Antarctica. According to Count Love, around 175,000 protesters turned out at hundreds of demonstrations the following week at airports and in public squares to protest the Muslim travel ban, with almost 50,000 more in other scattered protests by March 1. People’s Action estimates that upwards of 150,000 have been showing up at their congressional representatives’ town halls (even if the representatives themselves didn’t show), or at Resist Trump Tuesdays. And I’m writing this in early March; I can only imagine what else will have brought folks out by the time this is in print.

Perhaps just as important, this big blue revolt, or whatever you want to call it—a resistance, a mobilization, a movement—isn’t doing business as usual. In the normal progressive coalition politics since the 1960s, champions of various issues or identities have jockeyed for funding and airtime. In the Trump era, that’s out the window.

Today’s citizen activists say they intend to stand up for all the issues on the progressive checklist, demanding that all liberals act like we are one country, indivisible. As many have noted, the multi-city Women’s March was (almost pointedly) not a march for women’s rights but a march organized by women that roared on behalf of democracy and fairness, human rights and science. Its plethora of handmade posters shouted, “Can’t touch this,” whether “this” was women’s bodies, Muslim civil rights, the environment, black lives, bathrooms for trans folks, Obamacare, and—well, you remember as well as I do, because odds are you were there.

But the protests are just the part easiest to see. In the background, both novices and longtime progressive organizations and activists are working triple-time to be—not just in concept, but in action—intersectional at long last.

For years, many leaders and activists have worked to pull down the barriers and put a halt to the “oppression olympics” that pit one identity against another. They’ve been coming together for Moral Mondays, canvassing together for marriage equality, putting on interfaith potlucks, lobbying for sick time and family leave. Unions like the Service Employees International Union have not only funded and organized the Fight for 15, but also encouraged its workeractivists to expand the campaign’s agenda to such causes as Black Lives Matter. On campus, professors and students have delved into the reality that issues aren’t separate, that each life is lived at one particular car-crashing intersection of race and religion, work and family, gender and sexuality, child care and health care, and [your issue here]. And the new intersectionality also comes from social media’s transformation of how we communicate, many to many, intimately and simultaneously.

What’s accelerated this development is, of course, President Donald Trump. The NAACP sends out a blistering press release about how Trump’s rhetoric led to anti-Semitic vandalism in Jewish cemeteries. MALDEF, the Latino civil rights group, signs on to a statement condemning the Trump administration for withdrawing a guidance that lets transgender kids go to the bathroom where they’re most comfortable. As Kate Kendell, longtime head of the National Center for Lesbian Rights (NCLR), puts it, “No more coloring in the lines or protecting your own turf. We are facing an existential threat.”

Of course, it could all fall apart. The economic chasm between the (mostly white) professionals and the (mostly brown and black) folks on the economic and law enforcement front lines looks particularly gaping, as it has for years. The new left’s capacity to win over white workers on economic issues remains unproven at best. Nevertheless: Watch this space. If the nation can survive the Trump administration’s coming foreign policy and economic and climate disasters—a big if—we will find, on the other side, a new progressive movement that will reshape the Democratic Party in ways no one can predict quite yet.

Spring 2017 The American Prospect 47

Attorney-Activist Alliance: 600 lawyers and a like number of representatives from progressive organizations came together in San Francisco in January, producing multiple pro bono commitments to groups threatened

by Trumpism.

been canvassers, they might have been financial supporters, but they were not working for Planned Parenthood or doing activism professionally,” she explains. Now, she says, they’re channeling their decades of professional skills and experience into anti-Trump activism in ways that include pushing one another to run for local office, flooding members of Congress with requests for meetings, showing up at town halls, rushing to airports, demanding information about Immigration and Customs Enforcement (ICE) detentions, holding regular street protests—and educating themselves and one another about the issues. Northern Colorado Indivisible is assigning its own members to research and prepare factsheets and backgrounders on various issues so they’re ready to ask intelligent questions.

Some of the Indivisible groups are developing a broader vision of what they’re doing. Brandy Donaghy, who is black, says, “I actually had somebody call me and invite me to join the interim board of Indivisible Washington [state] because of the way I responded to some people in a con-

48 WWW.Prospect.org Spring 2017

versation that was about Black Lives Matter.” Her group hadn’t known the term “intersectionality,” she says. “Now they do, and they’re interested. We’re actually starting to listen.” And Indivisible Washington’s “Daily Do’s,” which she describes as “bite-size actions” for people new to activism, includes explanations “as to why it matters, what it means. A lot of people don’t realize that undocumented immigrants pay taxes and don’t receive welfare.” If they read Washington Indivisible’s Daily Do’s, they know it now.

Indivisible isn’t the only game in town, of course: Hundreds, if not thousands, of homegrown efforts are under way, often spawned through local or personal connections.

New York City Councilmember Brad Lander told me that after the election, he and a local rabbi invited residents of his district to gather at a Park Slope synagogue to figure out what to do next, expecting to break off into small groups—which was clearly impossible when more than a thousand people showed up. By January, Lander said, they’d organized into “15 different working groups on everything from fighting [cabinet] appointments to standing up to Islamophobia, building bridges of solidarity with immigrants and neighbors.”

Nativo Lopez, national director of Hermandad Mexicana, has been astonished at the new diversity of the turnout at immigration protests. “I’ve never seen as many whites of different age groups participating, and even in some instances, more whites than Latinos,” he says. “It was a spontaneous uprising of Americans that went to the airports and said, ‘No, this is not my America.’ That’s a good sign, a very good sign.”

Soon after the election, San Francisco employment lawyer Kelly Dermody asked on Facebook whether her fellow lawyers would be interested in hearing how they could help nonprofit groups representing causes and constituencies that would soon be under attack. By the next morning, hundreds had said yes. Within six weeks, she’d pulled together what she called a “Good Ally” conference in the Bill Graham Civic Auditorium, a venue donated by the city. Staffers from 35 nonprofits explained what they were facing and what legal help they would need going forward. The panelists came from an ABC of the left-ofcenter, advocates for issues that included civil liberties, climate, criminal justice, disabilities, domestic violence, environment, farmworkers, LGBTQ rights, reproductive health, service workers, voting rights, Asian Americans, Latinos, Jews, Muslims, Sikhs.

Of the 1,200 people who attended, fully 600 signed up to

g o o d a l ly c o l l a b o r at i v e

The many anti-Trump groups that have sprung up since his election have been multi-issue from their outset. Indivisible, for instance, is brimming with mainly white, middle-class, middle-aged outrage, but not just over issues that particularly affect middle-class and middleaged whites. Meryl Neiman was a corporate lawyer until she had kids, at which point she channeled her energy into school and playground advocacy. Now she coordinates Indivisible Columbus/District 3. “You are drawing upon a pool of people that … might have been voters, they might have

Containing Trump

do pro bono work for the groups represented by the other 600. More are still signing up through an online portal.

By focusing chiefly on the surge in middle-class activism, says Andrew Friedman of the Center for Popular Democracy, the news media are overlooking a similar surge “in many of these front-line communities, brown and black communities, working-class communities.” Ai-Jen Poo of the National Domestic Workers Alliance and Ellen Bravo of the Family Values @ Work Coalition, both of which represent mostly female low-wage workers, say that their members got themselves to the Women’s March and are turning out in numbers never before seen.

Organizers like these, whose constituencies are mostly poor, brown, black, and female, made clear that their folks needed no education in intersectionality, thank you very much, because that’s where they live. “Women were at the front lines for the Fight for 15 movement, and almost all of them are workers of color,” Friedman says. Ditto with the push for paid sick days and family leave for lowerwage workers.

These activists never saw economic justice and racial justice as separate. But that doesn’t mean that different groups actually worked on one another’s issues.

To the extent that there’s any fusion under way, it has several sources.

First is the work that advocates and leaders have put into understanding one another’s challenges, particularly once women of color started insisting that their existence wasn’t marginal but central to progressive causes. Bravo emphasizes that for years, leaders and organizers in the women’s movement have been investing time and money in, as she put it, “serious conversations about race”—panels, conferences, convenings, private meetings, off-therecord talks—and about enacting a vision of justice that includes people up and down the economic ladder. How many years? In 1974, the Boston-based Combahee River Collective made a splash across radical feminism when black women, especially but not only lesbians, announced that they were tired of being left out of analyses. In 1981, a group of women of color released This Bridge Called My Back, which profoundly shook up the social-justice branch of feminism, leading to years of imperfect but earnest discussions. By 1982, Bravo says, she was one of several organizers “hired for five months to staff the National Coalition Against Domestic Violence’s National Conference in Milwaukee, where I live, and the theme was ‘Race, Class, and Gender.’” By the early 2000s, the Ms. Foundation and other feminist donors were bringing together advocates and leaders to consider how to seriously incorporate a wide range of issues into feminist activism, whether that was organizing for sick pay, unions for domestic workers,

or arresting cycles of family violence and addiction. Bravo recalls those discussions involving unions and many other grassroots groups, all of which, she says, “have [had] some serious conversations among themselves about race and what it means for their program.”

That’s why, Bravo says, when the idea for a January 21 Women’s March bubbled up from Facebook, longtime organizers stepped up to help it succeed logistically and to steer clear of “avoidable flaws [like] calling it the ‘Million Women March’ or having the leadership be strikingly absent of women of color.” It’s no coincidence that those feminists organized a town hall that was a mini who’s who of the intersectional left, with Gloria Steinem talking with Alicia Garza of Black Lives Matter, and a panel that included Planned Parenthood’s Cecile Richards, Ai-Jen Poo, the Women’s March’s Linda Sarsour, and law professor and intersectionality rock star Kimberlé Crenshaw—an event that then sent attendees home with a diverse list of groups to contact and support.

Nonetheless, many women of color stayed home on January 21, or marched with caveats, angry that 53 percent of white women voted for Trump, or that white anti-Trump demonstrators had not shown up to Black Lives Matter protests against the shootings of young black men. But many acknowledged the effort was necessary, however imperfect. Garza wrote a widely circulated essay about her hesitation—and her decision to march despite it: Hundreds of thousands of people are trying to figure out what it means to join a movement. … If our movement is not serious about building power, then we are just engaged in a futile exercise of who can be the most radical. … We will need to build a movement across divides of class, race, gender, age, documentation, religion and disability. Building a movement requires reaching out beyond the people who agree with you. Simply said, we need each other, and we need leadership and strategy.

The evolution of the women’s movement is just one example of intersectionality’s long march. Every left-of-center effort has long been wrestling internally with how to stand up for a diverse membership. Gara LaMarche, president of the Democracy Alliance, which funds a range of progressive projects and groups, has been seeing these shifts over the years, noting that in recent years, “immigration reform was being backed by NARAL , and that the NAACP came out for marriage equality, and the LGBT community showed up for the [anti-]stop-and-frisk movement.”

As a result of these years of efforts at bridging the gap, civil rights leaders got in touch with one another the day after Trump’s election, agreeing that the resistance had to

In the past, many activists never saw economic justice and racial justice

as separate

issues, but that doesn’t mean they worked on one another’s campaigns.

Spring 2017 The American Prospect 49

In progressive politics since the Sixties, champions of various identities and causes

have

jockeyed

for funding and airtime.

In the Trump era, that’s out the window.

be all-for-one. As the election results became clear in the wee hours of November 9, 2016, Human Rights Campaign’s Chad Griffin met with the NAACP’s Cornell Brooks to share strategies. Various leaders told me about traveling nonstop, heading into meeting after meeting in those hectic days.

“I don’t recall a time when we’ve seen, unquestionably, this much participation,” says Ellen Buchman, an executive vice president of the Leadership Conference on Civil and Human Rights, to which 227 organizations belong. Buchman said that the Leadership Conference has been convening an extraordinary number of task forces (“tables,” in the jargon), formal and informal, to plan and enact strategies against the Forces of Trump. When we spoke, the Senate was holding hearings on Senator Jeff Sessions’s nomination to be attorney general; Buchman said the Leadership Conference meeting to coordinate the opposition had 100 people in the room and another 100 or 200 on the phone, with local groups dialing in to coordinate efforts. “I had this voice in my head saying, ‘It’s a closed meeting with this many people?’ And the answer to that is yes, because there are that many institutions and people interested in this fight.”

A second but parallel source of the push beyond silos has been fermented within the academy. Over this same period, the insistence by women and people of color that their lives be treated as significant percolated not just through left-of-center organizations but also through colleges and universities. While This Bridge Called My Back was being widely assigned in women’s studies classes and various organizations were grappling with the realities of intersecting identities, Kimberlé Crenshaw was writing her influential 1991 paper “Mapping the Margins,” which introduced the word “intersectionality” into academic discussion. Generations of left-of-center college students have by now absorbed the lesson that they should listen closely to those living with challenges that may differ from their own. When I interviewed Yale students for a PEN America report on free speech on campus last year, students of color proudly emphasized how they had organized both an online publication and a campus-wide organization that for the first time represented a range of groups, including Native, African, Asian, and Latino Americans.

“These students are used to having very hard conversations about class, about race, about colorism, about national origin,” says Next Yale spokesperson Alejandra Padin-Dujon.

“They’re very good at learning from each other and creating inclusive dialogue.”

University beliefs about left-leaning politics have a way of seeping into the liberal culture at large. Here’s a note, for instance, from the Indivisible Guide: Trump’s agenda explicitly targets immigrants, Muslims, people of color, LGBTQ people, the poor

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and working class, and women. It is critical that our resistance reflect and center the voices of those who are most directly threatened by the Trump agenda.

If you are forming a group, we urge you to make a conscious effort to pursue diversity and solidarity at every stage in the process. Being inclusive and diverse might include recruiting members who can bridge language gaps, and finding ways to accommodate participation when people can’t attend due to work schedules, health issues, or childcare needs.

In addition, where there are local groups already organizing around the rights of those most threatened by the Trump agenda, we urge you to reach out to partner with them, amplify their voices, and defer to their leadership.

A third and critical influence in this ongoing evolution has been social media. “A rising generation of millennials are more in touch culturally” through new media, says Nativo Lopez. “There’s almost like a cross-pollination culturally of music, of themes, of issues, so more mass education is occurring, even if it’s in sound-bite quality.”

The web and social media have immediately transmitted new ideas into American hands, in many cases eliminating any temporal gap between thought and action. The Dreamers, Occupy Wall Street, and Black Lives Matter couldn’t have spread as they did, says Nelini Stamp, membership director of the Working Families Party, were it not for cellphone videos of police killings and mass protests, passed along with simply a click; Livestream and Periscope and YouTube enabling anyone to literally hold these events in their own hands, feeling intimately involved; Twitter making it possible to debate (for good and for ill) widely and immediately; Facebook offering an always updated bulletin board reachable from wherever you might be; and now WhatsApp and Signal letting organizers communicate without being overheard or seen.

All that affected not just those who camped out in parks, marched in Ferguson, or rallied for the DREAM Act, Stamp says; it also affected the mainstream. “Watching people on the streets putting their bodies on the line for the last seven years, watching it at their fingertips,” that awakened Americans to the possibility of protest. “Resistance has been slowly normalized, and now it’s been catalyzed under Trump.”

A fourth factor has been the activities of large, racially diverse unions such as SEIU and the AFL-CIO not just to rally their own members behind a panoply of progressive causes, but also to organize in minority and other leftleaning communities for immigrant and civil rights, a higher minimum wage, and increased voter participation.

In Los Angeles, a foundation established by the local labor

Containing Trump

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federation has assembled a network of lawyers committed to defend pro bono those arrested by ICE in immigration courts.

And, of course, the fifth and most decisive factor behind this still-tentative fusion is Donald Trump himself, and the woes his presidency inflicts on the world.

No matter what the efforts, the economic and cultural chasms in a nation as vast as ours will never entirely close. Whatever is happening among the United States’ blue swarms, it’s still an interfaith coalition rather than a mass conversion to a unified theology.

But is mass conversion even necessary?

“There’s a tendency on the left in the United States to believe that people have to be converted to a common set of issues or a common platform before they can organize and work together,” says Harvard political scholar Theda Skocpol. “Actually, that’s not how it works.”

“Frankly, Democrats don’t all have to agree between, say, small-city Pennsylvania and bigcity Cambridge, Massachusetts. They don’t all have to be on the same page. Blacks and whites don’t have to completely agree, and blacks don’t have to be in charge and whites don’t have to be in charge. We don’t have time for that. It’s very natural for the left to fall into kind of a prolonged ideological seminar, but that is not what we need right now.”

What’s needed now, says Skocpol, is registering voters, getting them to the polls, and retaking power in Congress, the White House, and the statehouses. For these efforts, political unity isn’t necessary—and attempts to achieve it would be deadly, Skocpol says. That’s the lesson she found in studying the Tea Party, which, she says, “had top-down and bottom-up parts, but they agreed on one thing: Voting for Republicans against Democrats and keeping Republicans in office from compromising with Democrats. But, boy, they sure didn’t agree on an agenda, absolutely not.” Rather, they deployed “strategic ambiguity,” a vagueness that “allows different streams to come together, especially in opposition.”

“There’s only one form of resistance that’s going to work,” she continues, “and that’s voting. Voting for Democrats.”

When some of the local impromptu resistance groups have written Skocpol for advice, she says, she responds by telling them to fight on health care, because the possibility of losing health care can outrage and mobilize people across economic and geographic differences, and because she believes it’s “probably the most radical thing that the

Republicans want to do right now.” But even more important, she adds, “Whatever else you’re doing, learn the voterregistration rules, learn where the polling places are, make sure that everybody you know is registered to vote and is ready to vote, every single time they can vote.” Because if Democrats do better than expected in the small elections and the 2018 elections, “Republicans in Congress will start to get scared and they’ll start to pull away from Trump.”

Greg Moore, a veteran voting-rights activist working with the NAACP National Voter Fund, wishes desperately

that more focus on voting had been in place before the 2016 election. He and his colleagues had been trying since Shelby County v. Holder to wake Democrats up to the Republican effort to suppress minority and immigrant voting—and the fact that it was going to affect everyone’s issues. “I just don’t think they understand how serious of an impact it has on places like Wisconsin and Ohio and even North Carolina.”

Even if courts partially overturned various laws, he says, the court battles were dragged out so long that potential voters and poll workers didn’t necessarily know what the final rules were, which caused confusion and had a dramatic effect in bringing down Democratic turnout. Similarly, had immigration reform succeeded some years earlier, that would have expanded the Democratic electorate.

But now, Moore says, hopefully, “a great awakening has come. People now see the danger that these paths have brought. And they’re using every tool at their disposal: town hall meetings, social media, organizing, taking steps forward. … Together we have the strength to fight.”

Radical Act: Registering a voter at the Miami-Dade County Elections Department, October 2016. “The one form of resistance that’s going to work,” says Theda Skocpol, “is voting.”

E.J. Graff is managing editor of The Monkey Cage at The Washington Post and senior fellow at the Schuster Institute for Investigative Journalism at Brandeis University.

Spring 2017 The American Prospect 51

Trump’s Media War

Trump goes after the news media not because he thinks they’re strong, but because he thinks they’re weak and he can diminish them further.

By Dav id Green berg

D

onald Trump’s attacks on the news media since taking office have been so persistent, so over-the-top, so deranged—in a word, so Trumpian—that it’s not surprising to see a backlash. Journalists are denouncing Trump for his continuous stream of vitriol toward them. Newspapers and magazines are enjoying spikes in subscriptions and support. Around 200 activists even congregated in Times Square one Sunday in February to show solidarity with the press corps against Trump’s onslaught.

The press’s job of keeping the public well informed about national and international affairs is no doubt harder than ever today. Trump’s eagerness to attack the media relentlessly and without restraint has made it harder still. But the ultimate reason that a demagogue like Trump mounts such crude, broad-brush attacks is that the institutional power of the press has diminished, and Trump descries political advantage in putting more pressure on them.

In 2017, the news media command considerably less authority than they once did to set the news agenda, arbitrate disputes over public issues, or even establish a common standard of what we ought to be discussing. Seeing that weakness, Trump appears to believe that he doesn’t need the mainstream media the way his predecessors did—and that when it comes to raw, open warfare with the journalists who cover him, he has nothing to lose. Whether he is right or wrong will depend on the performance of the press in the next four years.

The Nixon Precedent When we hear the young Trump administration described as “unprecedented” in its treatment of the media, we often forget that all presidents spar with the press, often viciously. Almost every administration in modern times—since the rise of an influential press corps in the early 20th century—has at some point been labeled the “worst ever” in its treatment of the fourth estate, only to have such florid overstatements debunked in the light of history.

But if there is one close parallel with Trump in recent

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presidential history, it is with Richard Nixon, generally considered the president most unfriendly to the news media until now. Like Trump, Nixon hated the press for two very different reasons, one political, the other personal.

The political argument, stoked by aides like Pat Buchanan and Roger Ailes who preached a cultural populism, was that America’s elite newsrooms and television networks were riddled with liberals who promote an ideological agenda or at least let their opinions color their reporting.

A familiar right-wing talking point today, this claim was relatively novel in the 1960s. But it gained traction during that tumultuous decade thanks to coverage of events ranging from the civil rights protests to the riots at the 1968 Democratic convention. Nixon embraced this view from the start of his presidency. In 1969, his vice president, Spiro Agnew, entered the history books with a pair of speeches assailing the bias of the leading news organizations. Over the years, the “liberal media” claim did yeoman’s work for the rising conservative movement. It mobilized an angry base of scapegoat-hungry voters and simultaneously helped to discredit any news or commentary critical of the conservative movement’s leaders or ideas.

If ideology fed Nixon’s attack on the press as biased, it was personal animus that gave the attack its nasty bite.

A self-described “paranoiac,” with deep resentments that spawned an extravagant sense of entitlement, Nixon saw enemies everywhere. At least since his 1952 slush-fund scandal, when he almost had to step down as Dwight Eisenhower’s vice presidential running mate, he had been convinced that the press corps had it in for him. Aides commented that he couldn’t distinguish legitimate criticisms or even routine questioning from personal animus.

The result was a self-fulfilling prophecy: Regarding journalists as the enemy, President Nixon punished or lashed out at them in myriad ways. But the more he did so, the more aggressively they went after him, thus validating his suspicions. Watergate in particular confirmed many reporters’ resolve to practice what came to be called “adversarial journalism.” Sometimes this adversarial posture was channeled

Containing Trump

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into hard-hitting, critical reportage. During the ensuing decades, however, it increasingly appeared as gratuitous scandal-mongering, snide and captious television punditry, or overblown feeding frenzies over small-bore pseudo-scandals. The result was to damage the press corps’ standing with not only conservatives but voters of all stripes.

Trump versus Nixon With Trump’s election we have another president who regards the media as both politically and personally hostile. Like Nixon, Trump harbors an irrepressible sense of victimization, an ego insecurity that’s momentarily salved by eruptions of rage at those—especially in the media—who cross him, question him, or draw attention to his failings. Like Nixon, Trump’s insecurity leads him to monitor the news obsessively, creating endless occasions for explosions of anger.

But Nixon’s and Trump’s personalities aren’t identical.

Nixon cultivated the illusion that he was a straight arrow, a schoolboy, a square. Sometimes the mask slipped—such as at his famous “last press conference” in 1962, when, possibly inebriated, he excoriated reporters for giving him “the shaft” during his just-concluded failed bid for governor of California. Outbursts like these, though not uncommon, were nonetheless jarring, because the private Nixon suddenly on view was at odds with the statesmanlike persona he normally labored to project.

When it came to retaliating against the press, Nixon was if anything worse than Trump (at least so far). Not only did he mete out petty punishments, like preventing a journalist who was investigating his finances from going on his historic trip to China, but he abused his power in unconstitutional ways. Nixon had the FBI investigate enemies and the IRS audit them; he tried to deny broadcast licenses to the Washington Post Company as political payback; he put reporters under surveillance.

Notably, though, these measures were mostly concealed.

In public, Nixon strove, though not always successfully, to adhere to the norms of civil discourse. Asked about growing sentiment for impeachment at a news conference as the Watergate scandal spiraled out of control, he delivered a barbed joke: “Well, I am glad we don’t take the vote of this room.” Later, when asked if he had been lambasting the TV networks out of anger, he replied, “Don’t get the impression that you arouse my anger. … You see, one can only be angry with those he respects.” Though his bitterness was palpable, Nixon remained the collegiate debater, trying to score rhetorical points.

Trump doesn’t seem to care about seeming respectable. He revels in his bad-boy persona. Whereas Nixon’s private White House tapes shocked Americans by revealing a petty, vulgar vindictiveness at variance with his public mien, Trump’s “Access Hollywood” tape, in which

he bragged about grabbing women’s genitals, didn’t seem to shame him or deter his voters, who were already familiar with his lecherous, alpha-male posturings. For all the attention it garnered, the tape didn’t reveal a Trump fundamentally different from the one we already knew.

When it comes to the press, therefore, Trump has made no bones about waging war. His attacks aren’t necessarily more dangerous than Nixon’s, but they are more personal, crude, impulsive, and indiscriminate. In public, Trump has outstripped his predecessor in calling journalists names and questioning their honesty. When CNN reported on, and Buzzfeed then published, a dossier of opposition research compiled against Trump, he called Buzzfeed “a failing pile of garbage” at a news conference—pausing as if to search for a better epithet but grabbing the one closest to his lips, no matter how juvenile. Blurring the distinction between CNN’s reported and carefully worded story and Buzzfeed’s indiscriminate information dump, Trump then called CNN ’s report “fake news”—a term that has become his administration’s favorite phrase to try to discredit any news, accurate or not, that it doesn’t like. When the network’s Jim Acosta tried to respond, Trump shut him down, saying, “I am not going to give you a question. You are fake news.” These salvos exhibit neither Nixon’s desire to remain decorous nor his instinct to win the argument. They’re pure invective and insult—the unadulterated expression of anger and enmity and Trump’s own need simply to insist that he’s right.

The Twitter President This kind of attack—rash, brash, mean-spirited, juvenile— will be familiar to any of the 26 million people who follow the real Donald J. Trump on Twitter. Compared to most of us, Trump began tweeting early, in 2009, though initially he used his feed to promote himself and various dubious business ventures. Then, sometime in 2011, as Politico noted in a chronicle of Trump the tweeter, he realized that the platform was ideally suited for insults and abuse. The more serious he grew about a presidential run, the more he turned to Twitter to generate attention, build a following, take down his opponents, and develop his persona as the blunt, no-nonsense voice of the dispossessed.

Of course, Trump’s tweets have also caused him huge

Sore Loser: Richard Nixon provides the closest precedent to Trump in open hostility toward the news media.

Here, after being defeated in his campaign for governor of California in 1962, Nixon complains about news coverage and says, “You won’t have Nixon to kick around anymore.”

Spring 2017 The American Prospect 53

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House Twitter feed, to much fanfare in early 2009, but few people can remember a single Obama tweet. He used the platform mainly as another way to disseminate the same public relations fare that the White House Communications Office has issued for decades. Hillary Clinton, too, tweeted, sometimes wittily, but as disclosures from John Podesta’s hacked emails showed, her campaign had as many as a dozen staffers weigh in on crafting a 140-character squib—a process guaranteed to snuff out not only any raw emotion but also the immediacy and authenticity that make tweets like Trump’s so appealing, or appalling.

Trump’s tweets are especially popular among journalists, probably because unlike so much of the scripted, crafted political communication that they encounter, Trump’s seem authentically his own. (Not all of them are.) As a result, even while Trump was just one Republican in a pack of 17, his provocations attracted an undue amount of attention— not just on Twitter but in the print and broadcast outlets where these journalists worked. Trump’s outrageousness, showcased on Twitter, gave him the exposure he needed to differentiate himself from his rivals and vault to the top of the polls. It’s an old axiom in journalism that conflict makes news, and Trump’s invective does. Not coincidentally, it is often directed at the media. When The New York Times last January compiled a list of the (now more than 300) “People, Places and Things Donald Trump Has Insulted on Twitter,” roughly one-third of the targets were journalists, news shows, or news organizations—who by and large seem to revel in the attention even if a few occasionally take genuine offense.

In and of itself, Twitter isn’t transformative. What made it so useful for Trump in 2016—and perhaps will help him in his presidency as well—was a political climate of extreme impatience with conventional political and journalistic authorities. In the past, Trump’s blunderbuss assaults on all manner of racial and ethnic groups, his glaring flip-flops and contradictions and fabricated claims, his mile-long rap sheet of genuine scandals would have sunk his candidacy; scores of candidates have been felled by transgressions far more trivial than any of Trump’s top 20 offenses. But Trump’s gaffes, scandals, and prevarications perversely made him more popular—because the press’s efforts to highlight his shady business practices or gratuitous insults wound up making him seem, to many, like a slayer of the reviled mainstream media. His tweeting usually played out in the same way. The recklessness and lack of discipline that many assumed to be Trump’s Achilles’ heel turned out to be his secret weapon.

Finally, Trump’s tweeting helps him set the agenda. It puts journalists in a reactive position. Thousands of them chase after his tweets—retweeting them, responding to them, fact-checking them, ridiculing them, taking umbrage at them, using them as the basis for columns, hot takes, and idle chatter on what Trump has called “the shows.” Journal-

seth wenig / ap images

Unfriendly Fire: Trump is surrounded by “the enemy of the American people” as he arrives at a fundraising event in 2015.

problems. He seemed to hit bottom during the fall campaign when he went on an early-morning tweet bender berating the Venezuelan-born Alicia Machado for disclosing how he humiliated her during her term as Miss Universe. Trump was able to overcome the fallout from his online impulsivity and get elected in part because his aides stopped him from tweeting in the campaign’s last weeks, to focus on touting his economic message. But any expectations that as president Trump would lay down his digital guns were quickly revealed to be wishful thinking.

Conventional wisdom holds that Trump likes Twitter because it gives him a direct pipeline to communicate with these 26 million followers (roughly half of whom seem to be journalists). But this argument doesn’t really hold up.

For decades, presidents and even presidential candidates have found ways to break through the filter of press analysis and framing and reach the public directly. At first they did so by giving speeches that, according to custom, newspapers reprinted in full; later their words were broadcast on television or radio (though they did depend on the broadcasters’ cooperation). They’ve always been able to issue press releases and statements. Twitter isn’t entirely new in this respect.

What Twitter does is provide the perfect outlet for Trump’s unbridled, emotionally laden style of communication. Twitter is ideally suited for a particular vein of internet speech that goes back to what was called, in the internet’s earliest days, “f laming”—the propensity when arguing online to fire off angry, nasty, or insulting comments, often with little relevance to the substance at hand. Face-to-face communication forces us to reckon with the human being we’re arguing with; writing or typing a response compels reflection and revision. Even if you’re on one of the cable TV shout-fests, you’re probably aware of the millions watching. But when you tweet from the isolation of your laptop or phone, with no editor to review your comments, it’s easy to let fly with vituperative, ill-considered, misspelled, badly punctuated, ALL CAPS bursts of unreflective emotion.

This is what distinguishes Trump’s tweets from everyone else’s. Barack Obama, after all, pioneered the White

Containing Trump

ists have no obligation to lavish attention on his swipes at Meryl Streep or the newly elected Democratic party chair Tom Perez or even their own institutions (as when he wrote, “The FAKE NEWS media (failing @nytimes, @NBCNews, @ABC, @CBS, @CNN) is not my enemy, it is the enemy of the American People!”). Sometimes these tweets aren’t particularly newsworthy and can be ignored. Yet journalists not only take pleasure in responding to Trump’s tweets; they seem to feel obliged to cover these dashed-off halfthoughts as part of their professional duties.

Weakened Warriors But the key factor that has enabled Trump to adopt his gonzo style is the loss of power by the fourth estate. Since Nixon’s day, the cultural authority of the mainstream news media has plummeted. It’s now simply much harder for journalists to gain a hearing with the broad slice of the public that used to trust what they reported. As a result, their efforts to correct Trump’s misinformation, highlight problems in his presidency, or even report on corruption, scandal, and dysfunction have to swim against the tide if they are to reach the huge swaths of the electorate who trust Trump more than they trust the press.

Several long-term developments have weakened the press institutionally. The prevalence of adversarial reporting (especially in the form of crude gotcha journalism as opposed to substantive investigation) diminished reporters in the public eye. To many citizens, regardless of ideology, the typical Washington journalist now seemed preening, self-important, and unremittingly negative. The explosion of armchair television punditry, at the expense of reporting, had a similar effect.

Another blow came with proliferation first of cable TV news and then of internet blogs and start-up webzines. The multitude of outlets scattered the news-consuming public’s attentions, further chipping away at the authority once commanded by news-gathering reporters at blue-chip newspapers and sober-minded television anchors at the big networks.

The cable channels and new websites could also filch the heart of a story from the top-tier news outlets and serve it up to younger or more casual readers in a snarky package, blurring the line between reportage and parasitical commentary.

Twitter has exacerbated the tendency to parasitism, allowing commentators of varying degrees of knowledge and talent to opine about news gathered by others; it has also increased the emphasis on snark, as purportedly neutral Washington reporters—men and women who are expected to banish any hint of editorializing from their news stories—dispense with professionalism to spin out sassy, hostile, nit-picking, pompous, and ill-informed opinions, whether about Trump or anything else that pops up on their phones.

And then there was the 40-year right-wing drumbeat

about the mainstream media’s purported liberal bias, which convinced many conservatives not to trust sources like The New York Times or the network news shows—outlets that, not long ago, were widely recognized as neutral and nonpartisan bearers of information. In the 1990s came the rise in quick succession of talk radio, Fox News, and countless right-wing internet sites. These outlets amounted to a full menu of alternative news sources providing conservatives with counter-arguments and ripostes to any judgments proffered in the mainstream media, which, increasingly, they felt license to ignore.

During George W. Bush’s presidency, this undertaking expanded to construct a kind of alternate reality for the right. Under Bush, the conservative movement consummated a decades-long degradation of experts—in economics, science, law, intelligence, and other fields—on whom journalists had long depended to help readers make reliable sense of the world. Experts who doubted the administration’s claims, whether about Iraq’s nuclear weapons program, global warming, or Bush’s own economic policies, were themselves dismissed as partisans who cloaked their political conclusions in the trappings of disinterested expertise. Observers wryly labeled Bush’s presidency “postmodern,” in which no fixed truth existed and all arguments were reduced to their political utility.

Already, early in the new century, some were speaking of a “post-truth” society. Others used pretentious coinages like “epistemic closure” to explain the imperviousness of tightly knit ideological communities—now often forged online—to countervailing evidence. But in the following decade, things got worse still. Not just in the usual shadowy corners of society but increasingly out in the open, outré conspiracy theories now flourished—the most infamous of them being the slander that Barack Obama wasn’t born in the United States.

As the conservative but anti-Trump radio host Charlie Sykes wrote, “The echo chamber had morphed into a full-blown alternate reality silo of conspiracy theories, fake news and propaganda.” Where Cold War delusions, like the supposed communist plot to fluoridate our water, could be sidelined by media gatekeepers, now worldwide interconnectedness allows nonsense to spread far and wide. Pseudo-scandals like Benghazi gripped not just the usual smattering of crackpots who had spun scenarios about the Kennedy assassination or Roswell but also ranking members of Congress, influential voices in the right-wing mediasphere, and individuals on Twitter who managed to build up large and loyal followings—including, of course, Donald Trump.

It’s now much harder for journalists to

Gain A

Hearing with the broad slice of the public that used to trust what they reported.

The Road Back Reporters now face the challenge of regaining the trust of citizens on the left as well as the right. These disaffected Americans no longer seem hungry for the old meal

Spring 2017 The American Prospect 55

The most persuasive rebuttal to the right wing’s

“liberal media” claim has always been the simple fact of the press’s overriding professionalism.

David Greenberg is a professor of history and of journalism and media studies at Rutgers University, a contributing editor to Politico, and the author, most recently, of Republic of Spin: An Inside History of the American Presidency.

of straight-up reported news with a twist of analysis and a side of opinion. They prefer other fare: the ideological reinforcements of the cable news ranters; the self-congratulatory humor and sputtering indignation of the comedy anchors; the alternate universes of the social media conspiracists; or simply the generalized noise of the internet.

Instead of rebuilding their credibility, some journalists seem to be chasing these audiences by emulating sites like BuzzFeed and The Huffington Post instead of the Times and the Post. The Times seems poised to make the potentially fatal mistake of cutting back on editing. The snark-filled tweets of reporters—who act as if they’re joking in the breakroom rather than speaking for the papers of record—further chip away at their authority. Still other ostensibly fair-minded reporters, lured by the cameras, slip out of the temperate personas they don for PBS or Charlie Rose and take potshots at the president on MSNBC. This approach will never win back the readers who are seeking uncolored, trustworthy information. Confronted with the cacophony of fury and complaint that floods the airwaves and fills the screens, Trump and his supporters can write it off as “so much anger and hatred.”

Understandably, journalists who feel targeted by Trump want to fight back. But their counterpunching won’t be effective if it’s perceived as either self-aggrandizing or partisan. For more than a century, American journalism has thrived by placing reporting over ideology. The most persuasive rebuttal to the right wing’s “liberal media” claim has always been the simple fact of the press’s overriding professionalism. In the world of the mainstream media, where journalists aspire to be objective and nonpartisan, all the professional rewards and incentives—prizes, prestige, advertising dollars, personal satisfactions—accrue not to those who spout off in news columns or land a punch against a political target, but to those who dig up big news, uncover secrets, and score scoops. Not every individual journalist has necessarily articulated this understanding of what keeps them on the straight and narrow, but most follow it nonetheless. Lately, however, it seems that fewer reporters appreciate the value of upholding traditional journalistic norms and are in danger of sacrificing longheld principles for the short-term satisfaction of getting in a jab at Trump.

There are ways to fight back that can enhance the press’s standing rather than lowering it. Instead of hollering about being called an “enemy of the people,” a reporter can explain to readers the distinctive and fraught history of that phrase, as Andrew Higgins of The New York Times did. Instead of crying “liar” when Trump falsely claims that three million people voted illegally, a newspaper can track down the source of that fictitious statistic, as The Guard-

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ian did back in December, and explain how it reached the president-elect’s ears.

Even more important, reporters have dug deep into the burgeoning Russia scandal, the backgrounds of Trump’s cabinet nominees, the disarray behind his misguided immigration ban, and other big developments of the administration’s early days. Context and clarifying information, not outrage, is what journalists can produce to keep the public informed and restore their position as sources of reliable news.

Twelve days into the Trump presidency, Reuters editorin-chief Steve Adler issued a memo to his staff noting the “challenging” environment for journalists, in which the president had already called them “among the most dishonest human beings on earth” and his chief strategist, Steve Bannon, called the media “the opposition party.”

But instead of boycotting administration briefings or trying to rally support for the press, he said, Reuters would redouble its commitment “to reporting fairly and honestly, by doggedly gathering hard-to-get information—and by remaining impartial.”

The big unanswered question, though, is whether reporting out the facts and bringing to light new information will in the current media environment sway any of those who’ve given up on the mainstream media. Some may be hunkered in right-wing mediaspheres, where suspicions of the leading media institutions, bolstered daily

by Trump’s cries of fake news, prove an insurmountable barrier to changing minds. Others are scattered in their attentions, unwilling or unable to devote the time to sorting claims from counterclaims.

History again provides perspective, and maybe hope. In previous times, similar problems existed, if not to the same degree. During Watergate, the White House and other skeptical voices initially dismissed the scandal as what Donald Trump would call fake news. But in time, the reporting of a small few penetrated the right-wing bubbles. “At the beginning, all of us assumed Watergate was … what Ron Ziegler told us it was,” wrote William F. Buckley: “nothing more than a third-rate burglary.” But in time, the scales fell from Buckley’s eyes, and he came to think that those who stood by Nixon did so “because the alternative is to wake up in the morning and find that they are in agreement with a particular conclusion reached by the New York Times.” Even many of them changed their minds by the end.

In the coming four years, reporting will count for more than ever. Whether Donald Trump turns out to be an overgrown child or a fearsome menace, a proto-fascist or a paper tiger, it seems clear already that a lot of journalists are determined—not in the spitballs wars of Twitter or the food-fights of the cable news shows, but in the great gray columns of newsprint that are necessary to set forth a story in full—to put up a fight.

Containing Trump

The Hour of the Attorneys General

State Democratic AGs have assumed new importance in the effort to contain the Trump presidency.

By Rac hel M . Co he n

O

n a Tuesday night in early February, not three weeks after Donald Trump’s inauguration, three federal judges in San Francisco heard arguments about whether to halt his first major policy undertaking. Trump had issued an executive order banning hundreds of thousands of travelers from entering the country, including citizens of seven Muslim-majority countries, and all refugees.

As many as 60,000 individuals had their visas revoked.

Almost immediately, a pair of Democratic attorneys general, Washington state’s Bob Ferguson and Minnesota’s Lori Swanson, brought suit against Trump’s executive order, arguing it violated the 14th Amendment’s guarantee of equal protection under the law as well as the First Amendment’s Establishment Clause, harmed all Washington and Minnesota businesses and communities, and was “undermining [their] sovereign interest” as welcoming destinations for immigrants and refugees.

More than 100,000 people from across the nation sat glued to a YouTube livestream of the legal hearing. The high-profile courtroom drama unfolded amid massive protests against Trump in streets and airports. Besides Democratic attorneys general, civil rights groups and private lawyers filed dozens of other lawsuits in federal courts across the country. A few days later, the United States Court of Appeals for the Ninth Circuit blocked Trump’s executive order, ruling that it failed to advance U.S. national security. So went the opening round in what will surely be a continuing legal struggle over Trump’s powers.

As millions of Americans steel for years of conflict with a Republican-controlled Congress and an authoritarian president, Democratic state attorneys general—politicians with independent authority to sue on behalf of their states— are expected to take a leading role on the front lines of the mobilized resistance. Though their numbers have fallen in recent years, the 21 Democratic AGs now in office have pledged to work together to use their powers to protect citizens from executive overreach. They will be a crucial source of support in fighting a president who says he will deport millions of undocumented immigrants and deregulate everything from the banking industry to the environment.

The Supreme Court and, ironically enough, Republican state attorneys general have paved the way for the Democratic AGs. Thanks to the Supreme Court, the states have stronger grounds for contesting federal authority than they did in the past, and during the Obama administration Republican state AGs honed the legal playbook for challenging federal laws, regulations, and executive orders.

Democratic AGs may now be able to use that same playbook to contain Trump, especially because the Republican Congress shows little evidence of serving as an independent check on the executive branch. Since Democrats at the federal level have no power to conduct investigations, much less bring indictments, state AGs have been propelled into the forefront as a check and balance against one-party national government.

Since the election, Democratic AGs have begun other actions besides opposing Trump’s travel ban. The day before his inauguration, six Democratic AGs filed a motion to defend an EPA pollution rule being challenged in court by the fossil fuel industry. Four days later, 16 Democratic AGs filed to intervene in a case regarding the Consumer Financial Protection Bureau, an independent agency the Obama administration had been defending in court. Many suspect Trump will fire the CFPB’s director and downgrade the agency. “The CFPB has been the cop on the block, and as Republicans try to defund and kill off the agency, there will be a huge gap to be filled,” says Caroline Fredrickson, the president of the American Constitution Society. “AGs will be a major part of that response.”

AGs have also been preparing to defend health-care rights. Massachusetts AG Maura Healey has taken the lead in organizing a multistate working group to protect the Affordable Care Act, and New York AG Eric Schneiderman reintroduced legislation to protect access to free birth control for New Yorkers as afforded by the health-care law.

AGs have been beefing up their offices. New York— already one of the largest AG units, with nearly 700 lawyers—is hiring two new senior attorneys to focus on issues related to Trump’s presidency. Schneiderman already has an ongoing investigation of the Trump Foundation. In

Spring 2017 The American Prospect 57

February, Maryland’s Democratic-controlled legislature moved to expand the authority of their state AG for the first time since 1864, citing the unique danger posed by Trump.

Maryland lawmakers are also considering appropriating $1 million more per year to the state AG office and hiring five additional attorneys to take on the federal government.

AGs are under no illusion: It’s all hands on deck.

State attorneys general trace their roots to 17th-century England, where the office of AG became independent of the king. According to James Tierney, who leads Columbia Law School’s National State Attorneys General Program, the idea of an independent attorney general migrated to the American colonies and became a fixture of American state governments after the Revolution. In contrast to the U.S. attorney general, who is appointed by the president and can be removed at any time, most state AGs are elected, strengthening their position as true independent checks against executive power.

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In 1907, the National Association of Attorneys General (NAAG) formed to chart a shared antitrust strategy regarding the Standard Oil Company. The group, which also tackled issues such as habeas corpus, federal-state relations, and criminal law enforcement, was staffed through state AG offices until 1936, when it was taken under the umbrella of the Council of State Governments.

In 1980, NAAG split off once again as an independent association. Over the decades, its agenda has expanded to include pressing issues of each new era: internal security in the 1950s, civil rights in the 1960s, cyberspace law in the 2000s, and consumer financial protection in the 2010s.

It was in the mid-1990s, though, that state AGs really began to innovate new ways to use the powers of their office. More than 40 states came together to sue the five largest U.S. tobacco companies, charging them with consumer fraud and seeking payment for the Medicaid costs incurred for tobacco-caused illness. The bipartisan effort

el aine thompson / ap images

A Firewall: Washington state Attorney General Bob Ferguson, right, and members of his staff, including Solicitor General Noah Purcell, center, and Civil Rights Unit Chief Colleen Melody, helped to lead the effort to block Trump’s travel ban.

Containing Trump

led to a groundbreaking settlement in 1998 and has provided the template for multistate litigation ever since.

“We knew AGs were increasing [their] power back in 1995, when they started to take on the powerful tobacco industry,” says Karen White, the executive director of the Conference of Western Attorneys General, another AG association, which White has worked for since 1991. “This was the first time that AGs had front-page news headlines every day. Their powers were elevated, and people started to understand what they do, and could do. It wasn’t the first multistate case, but it was the most impactful in terms of catching people’s attention and catapulting AGs into a force to be reckoned with.”

Paul Nolette, a Marquette University political scientist who studies AGs, finds that while there were a few multistate cases in the 1980s, their numbers increased during the 1990s and 2000s and reached new heights during the Obama years. Some were bipartisan—particularly around consumer protection issues—but the later years of the last century and early years of the new one saw the birth of party-affiliated AG associations and more multistate, partisan litigation.

Republicans led the way, bolstered by the Republican Attorneys General Association (RAGA), a group dedicated to electing Republican AGs and litigating cases based on conservative legal philosophy. RAGA launched in 1999, moving under the auspices of the Republican State Leadership Committee in 2002. But the group’s formidable legal efforts did not take off until the Obama years.

And take off they did. Launching a concerted effort to beef up its political power, RAGA began fundraising and spending money on AG campaigns at unprecedented levels.

In 2014, the group split off to become its own organization, creating its own super PAC to boot. RAGA raised $16 million that year, nearly four times what it raised in 2010.

Pharmaceutical companies, the fossil fuel industry, the U.S. Chamber of Commerce, and the Koch brothers were among the group’s largest benefactors. Promises to fight for deregulation in the courts proved to be effective fundraising appeals. In joint actions, Republican AGs challenged President Obama’s policies on immigration, health care, the environment, and the workplace—raking in even more money with each successful court action.

Increased campaign spending paid off. By 2015, Republicans commanded a majority of AG seats, and in the 2016 election, Republican attorneys general increased their numbers from 27 to 29, the most at any time in U.S. history.

Democratic AGs, after dragging their feet, began rethinking their own strategies in 2014. They had a parttime committee—the Democratic Attorneys General Association (DAGA)—which had been based in Denver, Colorado, since its founding in 2002. DAGA was discon-

nected from the rest of the party, though. And while it had always done some fundraising, budgets for AG races had been fairly small.

“RAGA could really marshal its Republican AGs, whereas DAGA just wasn’t as good,” says Travis LeBlanc, who served as special assistant attorney general of California and a senior adviser to California AG Kamala Harris.

“RAGA really ran like a really well-oiled machine.”

At the end of 2015, DAGA decided to relocate to Washington, D.C., and turn itself into a full-time operation.

In May 2016, the group hired its first full-time executive director, Sean Rankin, a veteran Democratic political operative. Charged with aiding and electing Democratic AGs across the country, Rankin tells me he thinks he has the coolest job in politics.

Today, DAGA has offices in both Washington, D.C., and San Francisco. Rankin spent most of 2016 forging new relationships with groups like the National Education Association, Planned Parenthood, and the Democratic Governors Association, and since Election Day he has been working with tech groups, labor unions, Latino Victory, and the Congressional Black Caucus. “We needed to leverage new strategic partnerships,” says Rankin. “This component seems obvious, but for DAGA it didn’t exist before in the same way.”

Despite the decline in the number of Democratic AGs, DAGA is quick to note its successes in the 2016 election: Democrats won two out of three of their most contested AG races, even outperforming Hillary Clinton in states such as Pennsylvania and North Carolina. DAGA’s fundraising prowess still pales in comparison to RAGA’s; in the 2016 cycle, DAGA raised $10 million, compared with the more than $23 million RAGA raked in. But in February, DAGA hired its first full-time fundraiser, and has been working to raise money from progressive interest groups motivated to fight back against Donald Trump.

“Gun control, reproductive choice, environmental issues—at the end of the day, these are all being played out more in the courts than they are in Congress, and so our Democratic interest groups are coming to realize they need to support Democratic AGs more going forward,” says Steve Jewett, a political consultant who oversees campaign work for DAGA .

“RAGA certainly has the lead, but that lead is not going to last forever,” Rankin adds. “We are going to catch up.”

DAGA’s investments over the course of 2016, while made on the assumption that Clinton would win, have nevertheless enabled AGs to coordinate faster responses to the new president. But how effectively the Democratic AGs will contest Republican policies and Trump’s agenda remains to be seen.

“Republicans are different, they’ve always been more

The suit attorneys general brought

against tobacco

companies in the mid-1990s has provided the template for multistate litigation.

Spring 2017 The American Prospect 59

sophisticated and disciplined in the orchestrated exercise of power,” says a political consultant involved with AGs who agreed to speak on background. “With RAGA , they’re pretty harsh with one another. If you don’t participate, if you don’t play along, you won’t get support. I don’t think DAGA has been as disciplined about that.”

Democratic AGs intend to use the new

legal

strategies

forged by their Republican colleagues to challenge President Trump.

Democratic AGs will surely look to the example set by their GOP colleagues as they prepare to oppose Trump’s policies. During the Obama years, Republican AGs took their cases to Texas courts, which are chockfull of conservative judges who are amenable to their arguments. The GOP did not originate “forum shopping”—Democratic AGs won injunctions against George W. Bush’s policies from district court judges in California’s more liberal Ninth Circuit—but the Republicans did increase the practice. Greg Abbott, Republican governor of Texas, says that on a typical day when he was Texas’s AG, he went into the office, sued the federal government, and went home. Abbott sued the Obama administration 31 times, and his successor, Ken Paxton, brought 17 additional legal challenges.

For nearly a century after Massachusetts v. Mellon, a 1923 Supreme Court case, states were treated like any other litigant. They were not allowed to bring lawsuits unless they had “standing” to sue—that is, they could not challenge federal policies they believed were generally bad unless they could show a concrete and specific injury caused by the challenged conduct that could be remedied by a court. A harm affecting everyone was not a sufficient legal basis.

“Otherwise you’d get every state marching into court the second that you do something they don’t like,” says Stephen Vladeck, a University of Texas Law School professor. “You’d turn what are really political disputes into court challenges at the outset. Find me a federal policy that all 50 states endorse.”

Under George W. Bush, however, Massachusetts’s AG, joined by 11 other Democratic AGs, sued the Environmental Protection Agency to regulate greenhouse gases.

In a surprising 5–4 decision in 2007, the Supreme Court gave Massachusetts “special solicitude” in the standing analysis, making it easier for states to get into court than it is for individuals and private organizations. The ruling effectively expanded states’ authority to bring lawsuits against the federal government.

Under Obama, Republican AGs pushed open this door even further. In 2014, Obama announced new policies to give undocumented parents and lawful permanent residents permission to live and work for three years without fear of deportation. Twenty-six Republican AGs sued the federal government in response, arguing that the president violated procedural norms and exceeded his constitutional authority.

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Abbott argued that Texas had standing to challenge Obama’s immigration program because his state would suffer a financial burden in providing undocumented immigrants with state-subsidized driver’s licenses. A Texas district judge, Andrew Hanen, agreed that this burden constituted sufficient “harm” to bring the case and issued a national injunction to block the order. (Hanen, it should be noted, was no fan of Obama: He had previously been on record saying that the administration worked with drug cartels to smuggle children illegally over the Mexican border.) In a 2–1 decision, an appellate panel on the Fifth Circuit upheld Hanen’s injunction.

Last year saw even more preliminary national injunctions against Obama’s policies, all issued by federal district court judges in Texas. Republican AGs were able to block several Department of Labor regulations, a letter from the Department of Education advising schools about policies regarding transgender students and public-school bathrooms, and a rule interpreting an anti-discrimination clause in the Affordable Care Act. Some scholars, such as Samuel Bray, a professor at UCLA School of Law, have been speaking out against the trend of issuing national injunctions—a legal innovation that didn’t become commonplace until the latter half of the 20th century. The idea that a single district judge could issue an injunction to block federal policy nationwide, as opposed to just restraining the defendant’s conduct visà-vis the plaintiff, was, Bray says, unthinkable for most of U.S. history.

But what goes around comes around, and Democratic AGs intend to use the new legal strategies forged by their Republican colleagues to challenge President Trump.

“Republican AGs engaged in continuous warfare,” says Maryland’s attorney general, Brian Frosh. “Scott Pruitt [the former Oklahoma Republican AG and new EPA head] created a federalism unit in his office and went out and sued the Obama administration repeatedly. Maybe that’s what this evolves into for us. I really hope it doesn’t, but we will engage when necessary.”

Democrats, in short, have no interest in unilaterally disarming.

When a state files a lawsuit, it invokes a special sort of gravitas that private entities don’t have. And when ten, or fifteen, or twenty states join together to sue a corporation or the federal government, it sends a powerful message—something AGs rarely overlook.

“Every case is about the law, and the politics,” says Amanda Frost, a professor at the Washington College of Law at American University. “If you read the complaints AGs file, they are very often written with reporters in mind, with the politics in mind.”

mark lennihan / ap images

Containing Trump

Not coincidentally, Democratic AGs hailing from solidly blue states such as California, New York, Washington, and Massachusetts have shown themselves particularly willing to position themselves on the front lines of the political resistance against Trump.

Schneiderman, New York’s AG, brings with him personal experience battling Donald Trump in court. In the summer of 2013, two years before Trump announced his candidacy, Schneiderman filed a lawsuit against him, alleging that Trump University, which ran a real-estate training program from 2005 until 2011, ripped off thousands of people all over the country.

In response, Trump created a website to attack Schneiderman, sued him for $100 million, and filed ethics claims against him—all of which went nowhere.

The Trump University case appeared to settle this past November, with Trump agreeing to pay $25 million.

(One of the former students has recently pulled out of the settlement, raising questions as to whether the case is indeed resolved.) “From our perspective, [Trump’s] response to our suit was really a preview of the scorchedearth tactics he’d go on to use during the presidential election,” Schneiderman says. “Look, Trump has had a successful career involving charming people or bullying people, and at this point in his life, we shouldn’t expect anything different from him.”

Legal problems with Trump’s taxes or businesses could be a state as well as a federal issue, and if any state AG investigates those issues it would be Schneiderman, since the Trump Organization is headquartered in New York.

Some progressives have been calling on him to launch such investigations, but none are yet under way, and they could be difficult for a state AG to pursue. (Investigating Trump might have been easier for Preet Bharara, the fired U.S. Attorney for the Southern District of New York.) But at a conference of the National Association of Attorneys General in early March, Schneiderman said “it is not sustainable” for Trump to refuse to disclose his holdings or to divest them. He added that his office is currently studying Trump’s potential conflicts of interest, but that “it would be premature to say” how his team will proceed.

Following the election, Massachusetts Democratic AG Healey organized town halls to gauge citizens’ reactions to Trump around her state. Hundreds turned out—far more, she says, than she ever anticipated. “I’m hearing from Democrats, Republicans, and independents. They’re really upset. I’ve never seen anything like this,” Healey says. “We need to stand up on the front lines to play defense, but also to play offense and continue to pass laws that help people, the economy, the environment, and consumers, in the face of a president and an administration that may abdicate any and all responsibilities.”

After disappointing results in the 2016 federal elections, Democratic party leaders—including Tom Perez, the new chair of the Democratic National Committee—say they recognize the need to shift political focus back to the states.

“Republicans have taken so many states, dominating governor’s mansions, legislatures, and even state AGs,” says Healey. “That’s because the Republican Party made a concerted effort to focus on the school committee on up.

We have got to do a better job of telling everyday people why Democratic policies translate to prosperity.”

Democrats may find that refocusing on states produces more than short-term political gains. For years, the GOP

has positioned itself as the party of federalism. But there is also a progressive version of federalism, historically associated with Louis Brandeis, the early 20th-century reformer and Supreme Court justice, who envisioned states as “laboratories of democracy.” Democratic AGs seeking to act as checks on the Trump administration might find themselves reinvigorating this ideal.

Take, for example, Trump’s threat to cut off billions of dollars to states and cities that refuse to help with deportations. Democrats may find themselves grateful for certain Supreme Court decisions that they otherwise oppose. In its 5–4 ruling on the Affordable Care Act in 2012, the Supreme Court struck down the provision of the law that effectively forced the states to expand Medicaid. The Court held that by making all federal Medicaid funds conditional on the expansion, Congress would be unconstitutionally commandeering state governments. In the age of Trump, Democrats may now find that decision a helpful precedent in protecting states from having their state and city police

On The Case: Leading Democratic AGs—Maura Healey of Massachusetts, right, and New York’s Eric Schneiderman

Spring 2017 The American Prospect 61

attorneys general are mostly elected, so a legal strategy for

resisting

Trump will require

not just victories in the courtroom but in the polling booth as well.

forces commandeered for immigration enforcement, on penalty of losing federal funds they would otherwise have the right to receive.

“Trump’s never been in government, his people have never been in government, they’re not lawyers, and they don’t seem to have a sense of the Constitution at all,” says Columbia Law School’s James Tierney. “They’re going to learn that we’ve got judges; we’ve got good, strong, judges.

And a lot of those suits will be brought by attorneys general.”

Lawyers will be watching the Trump administration like hawks, looking for any slight procedural violation. Not only can state AGs sue for things Trump affirmatively does; they can also sue for inaction if they feel the president fails to fulfill his duties under the law.

“It’s actually much less complicated than reporters think it is,” Tierney says. “If someone does not enforce the law, then someone has to do something about it. We haven’t even begun to see what cases will be dropped, what unfair settlements will be struck—but people are watching very closely. And if [Trump] operates in a way that impacts the sovereignty or the proprietary interests of the citizens of the state, AGs will sue.”

Tierney admits AGs are more partisan than they were a few years ago but says they’re still less partisan than Congress or the American public. AG partisanship may be set to escalate, however, in dramatic new ways.

In November 2015, Schneiderman launched a probe into ExxonMobil in response to news investigations that suggested Exxon knew since the 1970s that its products were heating up the atmosphere, yet intentionally misled investors and the public about it. Schneiderman requested internal Exxon documents spanning the past 40 years. Schneiderman said he had suspicions that, as in the tobacco cases of the 1990s, corporate executives in the oil industry may have had hidden knowledge that their products had harmful consequences. California AG Kamala Harris opened an investigation in January 2016, and Maura Healey of Massachusetts joined Schneiderman’s probe two months later.

In May 2016, 13 Republican members of the House Committee on Science, Space and Technology sent a letter demanding that Democratic AGs and environmental groups turn over their own documents to show whether their Exxon investigations were politically motivated. A month later, ExxonMobil filed a federal lawsuit in Texas against Healey, claiming her AG probe was politically motivated and violated Exxon’s corporate right to free speech. Lamar Smith, the House Science Committee chairman from Texas, followed up in July by issuing subpoenas to Healey, Schneiderman, and eight environmental organizations.

“The attorneys general are pursuing a political agenda at the expense of scientists’ right to free speech,” Smith

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said at the time. (ExxonMobil is headquartered in Texas.)

Both Democratic AGs responded that Congress lacked the authority to intervene in their state-level investigations, and refused to comply. In mid-February, Lamar Smith issued new subpoenas.

Paul Nolette says he’s never seen this kind of congressional interference before and that for the most part, corporate investigations, such as when state AGs probe pharmaceutical companies, have been considered nonpartisan. “That may be changing,” he says. “I suspect this won’t be a one-off thing.”

“You now have a Republican-controlled Congress wasting taxpayer money harassing state AGs, sending multiple subpoenas, which it has no authority to issue,” Healey tells me. “We have the authority to do this investigation, and it’s critically important that it’s not hamstrung by political machinations exercised by the House committee. Let’s be very clear about what this is. It’s an abuse of federal power, and an example of a committee that isn’t interested in facts or science looking to carry the water for corporate interests.”

AGs are mostly elected, so a legal strategy for resisting Trump will require not just victories in the courtroom but in the polling booth as well. DAGA has already been eyeing the 2018 electoral landscape, recruiting candidates, and raising money.

ACLU donations skyrocketed in the wake of Trump’s immigration executive order, but no similar wave of cash poured into DAGA’s coffers. Rankin is optimistic that such fundraising will be coming; in addition to its new fundraiser, DAGA has been talking to progressive groups and other organizations that want to help Democratic AGs raise money. Rankin says the organization received its first million-dollar donation in mid-February. “That’s never happened before,” he says.

In many states, attorneys general are the best-situated leaders to run for higher office as a result of their experience, statewide reputation, and legal victories they may have won.

“Our AGs are out there saying, ‘Listen, I’m here to fight for you, I’m going to defend you against big interest groups that are against you or do you harm,’” says Jewett, DAGA’s election consultant. “We look at our Republican counterparts and they’ve essentially been sending a message of, ‘We’re going to fight regulation, fight Obama.’ I think that’s not a long-term winning strategy and Republicans are going to struggle to find a message to stay relevant.”

Right now, faced with a president whom most progressives consider unfit and dangerous, relevance is not a problem for Democratic AGs. No other progressive force in the country is as well positioned to investigate the Trump administration and to take it to court.

Containing Trump

Saving the Planet Goes Local

The Trump administration plans to decimate environmental safeguards—so blue states and cities are stepping up their efforts to arrest climate change.

By Ben Adler

O

f all the Trump administration’s policies, the one most likely to cause damage that can’t be undone may not be deporting immigrants or throwing poor people off Medicaid or outsourcing our foreign policy to the Kremlin. Rather, it could well be a cessation of efforts to combat climate change. The accumulation of greenhouse gases in the atmosphere is cumulative; even a later reversal of the Trump administration’s fossil fuel–friendly policies would not be able to undo the damage about to be done.

Even by the environmentally retrograde standards of his party, Donald Trump stands out as an extreme climatescience denier: Cold winter weather in New York prompts him to tweet that global warming has been proven a hoax.

He hates wind farms (partly because they threaten the views from one of his Scottish golf resorts). On the campaign trail, Trump vowed to repeal President Obama’s proclimate regulations and all other Obama-era limits on coal pollution, and to drop out of the Paris climate agreement.

To make good on his promises, he has named Scott Pruitt—who, as Oklahoma attorney general, repeatedly sued and attacked the Environmental Protection Agency, in accord with the wishes of his state’s oil and gas industry—to head the EPA . He appointed former Texas governor and noted fossil fuel enthusiast Rick Perry to run the Department of Energy, and former ExxonMobil CEO Rex Tillerson as secretary of state.

In the first weeks of his presidency, Trump issued a flurry of executive orders directing the EPA to eliminate even the most locally focused restrictions on fossil fuel extraction, such as a regulation preventing coal companies from dumping their detritus in streams. His planned undoing of the Clean Power Plan, which regulated carbon emissions from coal-fired power plants, could arrest the decline of U.S. emissions. The White House also announced that it is going to reconsider the Obama administration’s “clean car” rules that set higher fuel-efficiency standards for cars and SUVs. Whether it ultimately also revokes California’s waiver that allows it to set more rigorous fuel efficiency standards than the federal government remains to be seen.

But climate change policy isn’t set only at the federal level. States and cities can do a lot to reduce emissions.

Energy utilities are mostly regulated at the state level, and progress on climate issues can happen—and has happened—at the state level, assuming a willing government.

Only a limited number of state governments are currently willing, however: Today, there are only six states in which Democrats control both houses of the legislature and the governor’s office, all of them small except California. Climate action is sufficiently popular in largely blue states, however, that even some without full Democratic control are still moving ahead in curbing emissions and transitioning to clean energy. The Republican governors of Maryland and Massachusetts have sometimes signed pro-environment legislation, and the large Democratic majorities in both houses of the state legislatures also can override some vetoes. In New York and Washington, Republicans have very narrow control of one legislative chamber while Democrats control all else. Those states, too, have adopted progressive climate policies. Put all these states together—the Atlantic Coast states from Massachusetts to Maryland, and the Pacific Coast states save Alaska—and while you have a substantial slice of the nation, the vast majority of the U.S. population still falls outside of them, including the more emission-intense states of the Midwest and South.

States in those two coastal belts may be able to reverse some Trump administration policies in the courts. Whether they win or lose their lawsuits, however, they still will be able to strengthen any number of climate change policies (such as the standards for their utility companies) on their own. And they won’t be alone. Most major cities, in red states as well as blue, are governed by Democrats, and many—even such unlikely locales as Houston—are greening up their transportation networks, improving the energy efficiency of their building stock, and doing everything else they can to combat climate change.

Accordingly, environmental activists are redirecting their focus from Washington to state and local governments—and the courts.

Spring 2017 The American Prospect 63

Green State Power: Washington state has limited greenhouse gas emissions from power plants and factories, like this one in Tacoma. Trump can’t stop states from doing that.

appointed a climate change denier to be head of EPA does not change the legal structure that we operate in,” says New York Attorney General Eric Schneiderman. “You’re going to see state attorneys general emerge as an important line of defense in the weeks and months ahead.”

Demanding that the federal government fulfill its legal obligations is not the only pro-environment lawsuit that state attorneys general such as Schneiderman can bring.

They also may sue polluters directly, arguing under common law that climate pollution creates a nuisance, akin to dumping garbage in a neighbor’s yard. It’s a largely untested legal theory, but one that becomes more likely to succeed each year, as instances of climate-induced extreme weather events with massive social costs, like Superstorm Sandy in New York, pile up. (These suits, unlike those against the federal government, would be filed in state court. States cannot sue greenhouse gas emitters in federal court.)

Some AGs will also have to defend their state when it is sued by polluters for passing stricter environmental

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regulations than the feds. (Past suits from polluting industries and right-wing advocacy groups like Americans for Prosperity have unsuccessfully targeted California’s clean car rules.) They may also investigate fossil fuel companies to make sure they are being transparent with the public about the risks from climate change. Schneiderman and his Massachusetts counterpart, Maura Healey, are already doing so in the case of ExxonMobil, following revelations in InsideClimate News and the Los Angeles Times about the company’s past suppression of climate science.

Schneiderman is optimistic that even Republicanappointed federal judges will give these cases a fair hearing. Just days before we spoke, he noted, Republican judges struck down Trump’s initial Muslim travel ban. “We just saw in courts all over the country, Republican and Democratic judges ruled in favor of my colleagues and myself,” says Schneiderman. “I believe in the rule of law and I believe in science. That there is an administration in Washington that believes in neither doesn’t change the law.”

When it comes to the legislative and executive branches of government, however, environmental activists will direct their focus closer to home. “Energy policy is determined largely at the state level, with states sometimes working together,” says Emily Norton, chapter director of the Massachusetts Sierra Club. In the age of Trump, statelevel environmental groups such as Norton’s are experiencing a surge of grassroots enthusiasm. “We’re now at 23,000 members in Massachusetts, up from 18,661 in December 2015,” she says. “We have also seen donations increase.”

In blue states, at least, enviros are pushing on an open statehouse door. “This could be a massive year for the environment in California,” says Michelle Kinman, a clean energy advocate with the group Environment California.

“That speaks to the increased resolve [in the legislature] to make sure California is not going backward in the Trump era and is going forward on combating climate change.”

While California has long drawn national headlines for its climate initiatives, its next-door neighbor Oregon is currently gearing up to tackle climate change from every conceivable angle. Oregon climate activism has only been strengthened by having a climate-science denier in the White House. “The election has just ramped everything up,” says Michael Dembrow, chair of the state Senate Environment and Natural Resources Committee. “When we have town halls or any kind of public meetings, people are turning out in great numbers. They are very discouraged with what’s happening at the national level and they’re putting a lot of pressure on us at the local level. It’s had a really positive effect and sharpened attention to climate action. Clearly, the stakes are higher now.”

The state already has innovative programs in place for

d o n r ya n / a p i m a g e s

Just as Scott Pruitt constantly sued the agency he now heads when he was Oklahoma’s attorney general, progressive state AGs intervened repeatedly on the side of the EPA during the Obama years. Now, their roles will be reversed, as the progressives sue federal agencies, demanding that the Trump administration follow laws such as the Clean Air Act. A group of 14 attorneys general already sent a letter to Trump, warning him they will file suit to block any effort at Clean Power Plan repeal.

This power is not to be underestimated. In 2007, a coalition of liberal states won the Massachusetts v. EPA Supreme Court case that compelled the agency to regulate carbon as a pollutant. “That President Trump has

Containing Trump

reducing emissions from its electricity and transportation sectors. Oregon’s clean fuel standard, passed in 2009 and made permanent in 2015, requires large oil companies to reduce their carbon emissions per gallon through either incorporating biofuel or buying credits. The policy functions as a financial transfer from dirty transportation fuels to cleaner ones, especially because not all biofuels are treated equally. In Portland, a company called SeQuential collects waste oil from restaurants and refines it into auto fuel. That has a much lower carbon footprint than many other forms of biofuel, and it is rewarded accordingly.

“They get more shares from the market than a dirtier biofuel,” says Brad Reed, a spokesman for Renew Oregon, a clean energy advocacy coalition. “Essentially, it’s a way of juicing the clean energy economy here while also reducing pollution.” Clean fuel standards have been so successful in Oregon, California, and British Columbia that Canada announced in late November that it is taking the model nationwide.

Oregon’s other major existing initiative is regulation of its power sector. Like many progressive states, Oregon has a renewable portfolio standard, or RPS. These laws force utilities to shift a portion of their energy portfolio to renewable sources such as wind, solar, or hydropower within a certain time frame. Last year, Oregon raised the RPS’s ambition, setting a mandate to be completely coal-free by 2030 and to use 50 percent renewable energy by 2040.

And now Oregon environmentalists have set their sights on a more comprehensive solution: carbon pricing.

The holy grail of climate regulation is an economy-wide limit or fee on carbon pollution. National hopes for a carbon cap died with the demise of cap-and-trade in the Senate in 2010 and the subsequent GOP congressional takeover. States have been nervous about instituting such a system on their own, fearing that without a national program they would chase business away by raising energy costs. But the success of the first programs in California and British Columbia is showing that carbon pricing can actually be good economics. What is sending your money out of state to oil, gas, and coal companies, after all, but a kind of tariff or tax on the local economy? By putting a price on pollution, either directly through a carbon tax, or indirectly through auctioning permits, states raise money that they can reinvest in their economy through subsidies for renewable energy, mass transit, and energy efficiency.

Not every state has its own reserves of fossil fuels underfoot, but all have wind and sun.

So far, only California has an economy-wide carbon cap, which functions as a kind of carbon price because the credits are auctioned and tradeable. But more states are likely to join it soon, starting with Oregon. Oregon

environmentalists and legislators say that they expect to pass a “cap and price” bill this year. Activists are flexible about the exact pricing mechanism. It could be called a fee for polluting, rather than a tax, so as to avoid the state’s constitutional supermajority requirement for tax increases. (The Democratic majority is slim in the state senate.) Five different bills have been introduced in the legislature, offering various carbon caps and prices. “We have some great champions on both the Senate and the House side,” says Reed.

Oregon enters the fiscal year with a budget deficit, which casts a pall over other possible green initiatives, such as expanding home solar energy tax credits. But since a capand-trade program produces its own revenue, it is more politically appealing. Environmental activists will only support a bill, though, that directs all the funds to environmental and social justice initiatives, rather than closing the budget hole.

In Washington state, on the other hand, using carbon pricing to plug a budget hole is the only way a carbon tax is likely to pass. The state is in violation of its own constitution, according to a court ruling, by shortchanging its school system to the tune of several billion dollars per year. A controversial carbon tax on the ballot this November failed. Many liberals, including Governor Jay Inslee, opposed it because it was revenue-neutral, and the last thing they wanted was a tax that didn’t provide more money for education and other underfunded needs.

Carbon-tax proposals are now being debated in the Washington legislature.

With the price of renewables dropping and the need for climate action more urgent than ever, a growing number of progressive states are increasing their RPS. In February, both houses of the Maryland state legislature, which have Democratic supermajorities, overrode Republican Governor Larry Hogan’s veto of an RPS expansion. The state will now increase its standard from a 20 percent renewable portfolio by 2022 to 25 percent renewable by 2020.

Blue-state Republicans such as Hogan often try to present themselves as environmental moderates, without supporting the actual policies needed to match their rhetoric.

Hogan signed a bill last year extending and expanding Maryland’s greenhouse gas emissions reduction goal, from a 25 percent reduction from 2006 levels by 2020 to a 40 percent cut by 2030. Two months later, Hogan vetoed the higher renewable standard that is essential to meeting those targets. “He signed a piece of paper to say he was an environmentalist, with no intention of helping actually get there,” observes Mike Tidwell, director of the Chesapeake Climate Action Network, a Maryland environmental advocacy group. “He wanted to fool voters into thinking he was actually doing something on climate change.”

14 state attorneys general already sent a letter to Trump, warning him

they will

file suit to block any effort at Clean Power Plan repeal.

Spring 2017 The American Prospect 65

Here Comes The Sun: Trump’s not likely to bring back many jobs in coal, but he could reduce the number of jobs in clean energy, like those of these solar panel installers in Glendale, California.

to renewables. In December, Michigan Governor Rick Snyder signed a bill that raises the state’s RPS from 10 percent by 2015 to 15 percent by 2020. Snyder has long backed in-state renewable energy development for economic reasons: Michigan’s manufacturing sector is energy-intensive, and the coal and gas it burns come from out of state. The new law contains a host of other small provisions to help utilities enhance home energy efficiency and transition to cleaner energy sources.

An RPS is not the only mechanism for a state to switch to cleaner energy sources. In the Northeast, nine states belong to the Regional Greenhouse Gas Initiative (RGGI), which caps carbon emissions from power plants and sells pollution credits to utilities. RGGI may step up its ambition in the face of continued climate inaction from Washington.

In his January state of the state speech, New York Governor Andrew Cuomo called for lowering RGGI’s carbon cap.

New York is switching to cleaner energy sources through a big push in offshore wind development. The Long Island

66 WWW.Prospect.org Spring 2017

Power Authority (LIPA) recently approved the nation’s largest offshore wind farm, off the east end of Long Island.

Cuomo also committed in the same speech to building 2,400 megawatts of offshore wind power, enough to power 1.25 million homes, by 2030.

Although power plants are usually the largest source of greenhouse gas emissions in the coal-heavy industrial Northeast and Midwest, on the West Coast the causes are more dispersed. States such as California, Oregon, and Washington have cleaner energy portfolios for their power plants and utilities. But they have high transportation emissions, and their large agriculture and forestry industries produce emissions from a wide array of small sources: cows burping up methane, soil tilling releasing trapped carbon, and lost carbon sinks when trees are cut down.

That’s why Washington last year created a “Clean Air Rule” that is much like cap and trade minus the tradable carbon allowances. All the major industrial greenhouse gas polluters—an oil refinery, say—have to reduce their emissions by 5 percent every three years. If they do not, they must buy credits that are created by other in-state businesses cutting their emissions beyond the required amount. “For example, let’s say a pig farm or dairy farm has huge amounts of manure, releasing methane as it decomposes: It puts in a facility that burns it as bio-gas,” says Chris Davis, a senior energy adviser to Governor Inslee.

“The installation of that digester costs, say, $40 million and creates 10,000 tons of voided emissions. You can sell those voided emissions on a credit market.”

Oregon is looking at such ancillary measures as mandating higher energy efficiency in buildings. Washington and California already have laws that require gradually tighter standards for new buildings until all new buildings are “net zero” energy users. That means each new building will be designed to use so little energy that with rooftop solar panels it will, assuming typical usage, require no more electricity than it produces. Now Oregon environmentalists want their state to pass “net zero ready” legislation, which would require buildings to be so efficient that solar installation would make it net zero. (They avoid requiring solar itself because of the upfront cost, but assume the installation costs will continue to drop between now and 2032 so that by the time the law is fully implemented, a solar requirement could be added.) The proposal was introduced in the Oregon House in January, and insiders say it could pass this year.

Since energy efficiency is cost efficiency, state legislators can actually see these bills as an economic boon.

“Homeowners are going to hugely benefit over time, just by catching up to Washington and California,” says Dave Van’t Hof, acting Oregon state director at Climate Solutions,

reen sa xon / ap images

Hogan isn’t the only Republican governor of a liberal state who faces pro-climate supermajorities capable of helping the planet over his objections. Veto-proof Democratic majorities in the Massachusetts state legislature are pushing climate action forward, whether Republican Governor Charlie Baker likes it or not. Massachusetts State Senate President Stan Rosenberg recently said he hopes to pass a raft of legislation in 2017 to increase the state’s climate targets. Bills recently introduced to that end would increase the state’s RPS, institute carbon pricing, force utilities to cut down on gas leaks, and incentivize drivers to switch to electric cars.

Some Republican governors are supportive of switching

Containing Trump

a Northwest-based clean energy advocacy organization.

Climate Solutions’ analysis found that energy efficiency increases of 10 percent to 20 percent will cost just 1 percent to 1.5 percent more for the average homebuyer, without even factoring in state tax incentives. “Roll that cost into a mortgage and the savings on your energy bill dwarf that every month,” Van’t Hof observes.

Reducing energy usage can lead to a big drop in emissions. Western states are still rapidly growing. Experts estimate that 40 percent of Oregon’s building stock in 2050 has not yet been built. “Putting these rules in place could save around six million metric tons per year of greenhouse gases,” says Van’t Hof. “That puts it in the same league of climate benefits as the 50 percent RPS and coal phase-out.”

Many states have adopted tax credits for homeowners to reduce the upfront cost of going solar, and some states are now considering expanding them. Oregon, for example, is looking at how to make a tax credit currently only available to homeowners accessible to renters and to others who cannot put a solar panel on their home but would like to invest in a communal solar installation—say, on the rooftop of a local school.

Electric vehicles (EVs) present similar challenges and opportunities. Unlike their East Coast counterparts, many of the major West Coast cities lack the mass transit networks and residential density needed to reduce driving by having commuters access other means of transportation. Their main approach to cutting back on gasoline consumption is driving cleaner cars.

California has set higher fuel efficiency standards than those required by the federal government, though the Trump administration may seek to repeal the waiver allowing California to do so. Now, California, Oregon, and other states are also trying to get residents to buy electric vehicles. Last year, California lowered the maximum income threshold for a qualifying buyer and increased the value of each credit, trying to ensure that each credit goes to someone who otherwise wouldn’t have been able to afford an EV. The Golden State also has three new state-supported pilot programs for getting more electric cars on the road.

In the San Joaquin Valley and in the Los Angeles metro area, partly to help clean the notoriously smoggy air, buyers can get cash incentives to retire their conventional car and purchase a low-emissions one. In the San Francisco Bay Area, people with little or no credit history can obtain lowinterest loans to buy an electric car. Later this year, a third program in the L.A. and Sacramento areas will launch a low-income electric car–sharing service. California is also trying to solve the other impediment to buying EVs, which is fear of running out of power, by building 7,500 recharging stations all over the state.

Although cities do not have a state’s energy regulatory authority, they are often able to adopt a host of policies to limit emissions. Environmental groups are increasingly turning their organizing firepower on city governments.

The Sierra Club’s Ready for 100 program persuades cities to rely on 100 percent renewable energy by 2035.

(There are 20 states that let cities strike their own deals with energy providers.) San Diego, the country’s eighthlargest city, and 20 other cities have committed to using only renewables. Seven of them already hit that goal, the most recent being Georgetown, Texas.

Many cities, even in some unlikely places, are working to provide transportation alternatives to their residents.

In November, voters all over the country passed initiatives to pay for expanded public transit. Seattle and Los Angeles County raised sales taxes to support light-rail expansion, while Kansas City, Missouri, and Indianapolis passed tax increases to pay for new bus service. Municipal bikesharing has cropped up all over the country.

Finally, cities and states on the West Coast are also doing what they can to oppose expansions of the fossil fuel transportation infrastructure. To get from the oil- and gas-rich Bakken Shale in North Dakota or Wyoming’s coal-heavy Powder River Basin to the markets in Asia, fossil fuels must travel via the Pacific Northwest. Communities there aren’t excited about having dirty, explosion-prone fuels passing through town, and many worry about a glut of fossil fuel supply driving temperatures through the roof.

So Oregon’s state legislature is considering a bill that would subject to a “climate test” every fossil fuel infrastructure plan submitted for approval to state agencies, such as those for pipelines and export terminals. Each project would have to prove it complies with the state’s greenhouse gas reduction goals and that it is economically viable in a future where regulations or carbon pricing might curtail demand.

Communities throughout the region are blocking fossil fuel exports. Last year, Vancouver, Washington’s city council passed a ban on future oil terminals, and the Washington towns of Hoquiam and Aberdeen changed their zoning codes to prevent oil companies from using their ports.

In January, the Quinault, a coastal Washington Native American tribe, won a key legal challenge to a proposed oil train terminal, likely dooming the project. A month earlier, Portland’s city council passed zoning changes banning construction of fossil fuel terminals.

In the age of Trump, progressive state and local governments appear determined to find every point of leverage to keep fossil fuels in the ground. Environmentalists and sympathetic public officials are already working harder and thinking more creatively, simply because they must.

For transport to Asia, fossil fuels have to pass through Pacific Northwest port cities, some of which

have

banned fuel-shipping terminals.

Ben Adler is a former reporter for Grist, The Nation, Newsweek, and Politico. He writes about politics and the environment for Vice, The Washington Post, and The Guardian, among other publications.

Spring 2017 The American Prospect 67

Taking a Scalpel to Medicaid Republican claims of their bill’s greater flexibility for the states are a sham cover for disabling cuts.

By G ab rie lle G u rle y

68 WWW.Prospect.org Spring 2017

intended to cover people on Aid to Families with Dependent Children (AFDC), the working and elderly poor, people with disabilities, and indigent people needing nursing home care.

According to 2015 data, most nonelderly Medicaid recipients are white (42 percent); the rest are Hispanic (31 percent), black (19 percent), or of another race (8 percent).

Subsequent budget cuts excluded most of the working poor, and people on AFDC no longer get automatic coverage since that program, now called Temporary Assistance for Needy Families (TANF), was turned into a block grant in 1996.

The original Medicaid program was created as a federal-state match. Today, the basic formula pays 50 percent of the costs in states like Colorado and Massachusetts, up to 75 percent of the cost in states like Mississippi, and 72 percent in West Virginia. Currently, the federal government adjusts Medicaid payments based on fluctuations in a state’s actual health-care costs.

The 2010 Affordable Care Act included the most dramatic expansion of Medicaid in the program’s history. The law encouraged states to liberalize Medicaid coverage by having Washington pick up nearly all of the costs. The formula expanded eligibility to people who earned up to 138 percent of the poverty level—$16,643 for an individual and $33,948 for a four-person household in 2017. Many of the people who were able to access health insurance under the Medicaid expansion were part-time workers or full-time service or construction workers whose employers did not provide health insurance.

The ACA also standardized enrollment and eligibility requirements across states.

In December 2016, nearly 74 million Americans received Medicaid coverage, with roughly

16.2 million new adults and children having enrolled in Medicaid and CHIP (health coverage for children in poverty) since late 2013 when the program became effective. “That was a pretty significant change in 2010,” says Colleen Grogan, a University of Chicago healthcare policy professor. “It was a health-care program for the poor, but it never actually covered all poor people who really needed care.”

The federal expansion, with its generous matching rates of 100 percent in 2016, 95 percent in 2017, and 90 percent in 2020 and subsequent years (originally mandatory but made optional by a Supreme Court decision) was so attractive that most states agreed to the expansion. It had bipartisan appeal: Of the 31 expansion states, 16 have Republican governors.

It is this expansion that would be undone by the Republican bill. The CBO estimates that federal Medicaid spending would decrease by $880 billion over the next decade—states will have to dispense with the expansion and cut other aspects of the Medicaid program since their costs would soon become exorbitant. For people who do remain on Medicaid, the Republican bill has added work requirements, as a capitulation to conservatives who thought it wasn’t tough enough. The GOP bill would also repeal key ACA funding streams, such as the Medicare payroll tax on high-income earners, as well as levies on high-cost employer-sponsored group health plans, pharmaceutical companies, medical device manufacturers, and tanning beds.

House Republicans have tried to finesse the spending cuts by claiming that the new legislation would be a gain for state “flexibility.”

States, presumably, would give up resources

istock by get t y

A

s Republicans struggle over how Congress can pass some version of their health-insurance cuts, lost in the debate is the fact that the Affordable Care Act’s greatest achievement was the expansion of Medicaid.

The most dire cuts in the proposed GOP legislation would be both to basic Medicaid and to the people who qualified for the ACA expansion.

The bill not only phases out the expansion of Medicaid under the Affordable Care Act; it guts basic Medicaid itself. A core provision converts Medicaid from an entitlement, for which people automatically qualify based on income or other criteria of need, into a fixed per capita block grant to the states, with much-reduced federal aid. The only possible consequence can be to throw millions of people off Medicaid.

When the Congressional Budget Office calculated the impact of the Republican legislation in mid-March, it found that 24 million people will lose coverage by 2026 and 14 million of them will be Medicaid recipients. Of the roughly 20 million people who gained coverage thanks to the ACA , more than half gained coverage thanks to the Medicaid expansion in the law. More than three million were young people who were able to stay on their parents’ plans, and the rest bought insurance on the private market through the ACA-sponsored exchanges. This aspect of the ACA will also be gutted through reduced subsidies.

Medicaid is the largest health insurance program in the United States, covering some 20 percent of Americans—more than are covered

by Medicare. Established during President Lyndon Johnson’s Great Society initiatives of the mid-1960s, Medicaid originally was

but in return would get new flexibility to devise being treated more promptly, rather than being meet the requirements of a state, region, or their own state programs. forced to seek out expensive alternatives. This specific groups of patients.

As of February, 33 states had been grantUnder closer scrutiny, this contention disin- increased efficiency of care will be lost, as the ed waivers in five areas, including behavioral Republican bill drives those who lose their tegrates on several fronts. First, the proposed health.

Oregon officials obtained $2 billion insurance back into emergency rooms—or to additional funding for new state experimental through an 1115 waiver for a program aimed having no care at all. programs is a pittance compared with the fedat keeping the growth in Medicaid costs at or President Trump, who pledged to not cut eral funds that are being cut. Second, states below 3.4 percent annually by using regional Medicaid on the campaign trail and now supare already spending significant sums on their “coordinated care organizations.”

These orgashare of Medicaid, and have no discretionary ports the House Republicans, emphasized flexresources to make up the lost federal aid. And ibility in his February address to a joint session nizations target low-income patients through third, the existing Medicaid program already of Congress. “We should give our great state networks of providers and programs designed provides substantial flexibility though its waiv- governors the resources and flexibility they to reduce emergency room visits, minimize need with Medicaid to make sure no one is hospital readmissions without compromiser provisions.

Medicaid makes up nearly 30 percent of left out,” he said. A per capita cap strategy, so ing quality of care, and the like. According total state spending, and already crowds out the GOP argument goes, would provide states to Jesse O’Brien, policy director for the Oregon State Public Interest Research state priorities like education and Group, changing the practices of infrastructure. To maintain current large organizations like hospitals Medicaid benefit levels for residents, Changes in enrollment under the American Health Care Act, selected years governors and state lawmakers and health insurers requires signifi■ medicaid ■ individual coverage ■ employer coverage ■ other would be forced to cut some recipicant dollars that most states cannot 2018 2020 2022 2024 2026 ents loose or find the money elsedeploy without federal funding.

0 where in already constrained state “If the idea is to provide states -5 million with flexibility to implement new budgets. Those unappealing choices -9 million -5 ways of providing health-care covunderscore the no-win scenarios for -13 million -14 million -14 million erage to people through Medicaid, state leaders who are at the mercy of -6 million -10 that takes more money up front,” a Republican Congress determined says O’Brien.

“You can’t just say, to finance tax cuts for the wealthy by -2 million -9 million ‘Here’s a smaller amount of money, plundering health care for the poor.

-2 million -15 -14 million -5 million do with it what you will.’”

There is no state in the union -8 million Massachusetts undertook the that can absorb a shock of that -2 million -7 million -20 boldest use of the federal dollars scale of reduced federal funding -5 million -21 million -2 million provided through the 1115 waiver coupled with fast-rising medical -24 million -24 million -24 million to establish its successful univercosts. The outrage that has greeted -25 sal health-care program in 2006, the Republican proposal to topple Source: congressional budget office which became the model for the one of the pillars of the American health-care system reflects the growing real- with the flexibility to manage, innovate, and Affordable Care Act. One of the primary drivization that the plan jeopardizes the health of experiment with their Medicaid programs. ers for health-care reform in the Bay State was millions of people and compromises the ecoYet funneling fewer dollars to states erodes the pressure on hospitals from the costs of the nomic stability of the states where they live. the built-in flexibility that already exists. Today, uncompensated-care pool, which provided One of the major ways the ACA made the states can design health-care programs to fit free health care to low-income people who health-care system more efficient was by their own circumstances and experiment with did not have insurance and relied on emerreducing the number of uninsured people. new medical treatment and administrative pro- gency room visits.

Establishing an insurance system that proThat development, in turn, reduced the finan- cedures by using several kinds of waivers that cial stresses on hospitals and clinics by reduc- allow states to stretch federal Medicaid rules. vided routine medical care for low-income ing uncompensated care costs—that is, the One such tool is the Section 1115 demon- people and nearly all other state residents cost of free medical care that people some- stration waiver, known as the “eleven-fifteen” dramatically reshaped the state’s health-care times seek out in emergency rooms. Moving waiver. The provision allows state officials to landscape. Today, 96 percent of Massachusetts people onto a standard insurance package that design and implement programs that expand residents are insured. The Bay State received included basic wellness care, immunizations, health-care services; address health-care $52.5 billion through the amended 1115 waiver standard protocols for conditions like diabe- emergencies like the HIV/AIDS epidemic; craft last November, to allow Medicaid patients to tes and childhood asthma, and treatment for new administrative, technology, and financial use accountable care organizations. These netacute and chronic illnesses means people are frameworks; and make other refinements that works bring together hospitals, doctors, and mi lli ons of people

Lost Insurance Coverage

Spring 2017 The American Prospect 69

other medical professionals to coordinate care and treatment for Medicaid patients, including substance abuse programs, and provide funds to support care for the indigent.

The challenge of providing care for uninsured people would come roaring back in Massachusetts and elsewhere if Medicaid eligibility narrows, with less money in the system and more people losing coverage. “There’s a waiver process that the Trump administration totally controls that allows states to waive virtually anything in the Medicaid rule book,” says Brian Rosman, the government affairs and research director for Health Care for All, a Massachusetts health-care advocacy group that played a key role in the 2006 reforms. Flexibility “is a Republican talking point not based on reality; it is an alternative fact,” he says.

Some states want to interpret flexibility in a perverse way—as a license to ration health care.

Arkansas Governor Asa Hutchinson, a Republican, has already announced that he intends to pursue an 1115 waiver to institute a work requirement for people who became eligible for coverage under the Medicaid expansion—a conservative tenet the Obama administration rejected. In an undated letter to governors, Secretary of Health and Human Services Tom Price and Seema Verma, the Centers for Medicare and Medicaid Services administrator, said the states can use the waivers to create innovative training and employment programs as ways to “improve the long-term health of low-income Americans.” In reality, many of the working poor who receive Medicaid already work multiple part-time jobs, and an overlaid work requirement would destroy their livelihoods by creating income requirements that would push them off the program. Crafting state eligibility requirements quickly becomes political, and in an environment of reduced funding, one recipient group, or one region, gets played off against another.

Medicaid is the largest source of payment to nursing homes. The program pays for 51 percent of all spending on long-term care and related needs, since few people have the financial resources to pay out of pocket for the high cost of nursing home care, and few have long-term care insurance. The elderly poor who require long-term nursing home care—or middle-class elderly who “spend down” their

70 WWW.Prospect.org Spring 2017

savings and disperse other resources in order to qualify for nursing home care—are one of the most expensive groups to cover. But state officials are unlikely to tinker with the eligibility of elders or the blind and disabled. Greatest Generation elders, backed by their baby-boomer (and soon-to-be elderly) children, remain one of the most powerful voting and lobbying blocs. Even in a politically polarized America, there is a remarkable bipartisan consensus about the use of Medicaid to cover the longterm needs of the elderly.

Smaller federal Medicaid allocations will disproportionally affect the poor states that lean Republican, according to former Democratic Governor Jim Hodges of South Carolina.

Among the secondary effects of gutting Medicaid: the closing of rural hospitals, which are often a region’s largest employer, too.

“It will be interesting to see [what happens] when people begin to put pen to paper in these Southern states and realize that some of the proposals that are out there would disproportionally impact them in a negative way,” he says. In states like Tennessee that did not expand Medicaid, rural hospitals will close, says Gordon Bonnyman Jr., a Tennessee Justice Center staff attorney and health-care policy expert. The state’s failure to expand has affected dozens of rural hospitals that did not receive increased expansion funding for caring for low-income residents. “It is hard to overstate what this is going to mean in rural America,” says Bonnyman. “It will absolutely hammer the GOP base.”

Bonnyman notes that anywhere from 40 to 50 rural hospitals in Tennessee, which has the second-highest rate of rural hospital closings in the country, are already teetering on the verge of shutdown. When a rural hospital clos-

es, it is just the beginning of a downward economic spiral, he says. Rural hospitals are often the largest employer in the region. A small town without a hospital means the remaining employers have trouble recruiting new workers. Jobs dry up and young people leave, hollowing out once self-sufficient communities.

Under the Republicans’ American Health

Care Act framework, beginning in 2019, Medicaid funding would be distributed using a per capita cap model, based on fiscal year 2016 spending on enrolled eligible groups (elderly, blind and disabled, children, adults enrolled in expansion states and those in non-expansion states) plus the Consumer Price Index’s medical care growth rate. States that exceed the cap would have their allocation reduced in the next fiscal year.

“You can do a per capita cap in a way that would be the greatest thing ever, if you, say, double the amount of money going into the program,” says John McDonough, a professor at Harvard’s T.H. Chan School of Public Health and a key player in the Bay State’s 2006 healthcare reform effort. “But this is very clearly intended as a strategy to lessen the federal commitment to the 74 million Americans who are in the program.”

After 2019, expansion states would no longer receive the generous Obamacare match, effectively making enrollment of new applicants cost-prohibitive for most states. That provision alone forces seven states—Arkansas, Illinois, Indiana, Michigan, New Hampshire, New Mexico, and Washington—and 3.3 million people out of the Medicaid expansion immediately, because of state laws that end participation in the program if the expansion matches were no longer available. Republican governors also demanded equity with expansion states, so the 19 states that did not accept expansion dollars will receive $10 billion over five years for safety net programs and services.

Republican members of Congress did not reckon on the popularity of many ACA provisions, including the Medicaid expansion. For most Americans, the Obamacare debate is about making the health-care and insurance system work better for patients and their families. But for the Republicans, the issue is pure politics. Republicans in Congress have tried four times in the past 40 years to block-grant

Dumping Grandpa? Medicaid provides 51 percent of payments to nursing homes and other long-term care.

Medicaid, believing that health-care coverage for the poor should rest largely with states while the federal government steers the newly freedup funds to tax cuts and defense. “The GOP plan [creates] a dial that Congress can ratchet down every time they are looking for savings in the future,” says Katherine Howitt, an associate policy director for Community Catalyst, a Boston-based national health-care advocacy group.

brennan linsley / ap images

Governors for the most part have emerged

as fulcrums of opposition to block grants. At the recent National Governors Association winter meeting, few of them could muster enthusiasm for billions of dollars less in federal funding.

State leaders have proved to be a deciding factor on Medicaid reforms before. In his first term, President George W. Bush asked the NGA to craft a block-grant proposal that he could send to Congress. But a bipartisan task force could not reach agreement on covering costs for people eligible for both Medicaid and Medicare and declared defeat in 2003.

When the only option in front of them is the federal government abandoning the states, leaving them to struggle with health care for the country’s poorest people, Democratic and Republican governors can find at least one

point of agreement: They do not want to deal with political fallout from supporting a bill that erases a popular entitlement.

In a March letter to House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell, four Republican governors—John Kasich of Ohio, Rick Snyder of Michigan, Brian Sandoval of Nevada, and Hutchinson of Arkansas—argued that the current bill “provides almost no new flexibility for states, does not ensure the resources necessary to make sure no one is left out, and shifts significant new costs to states.”

“The budget exercise is very easy for [Congress],” says Judith Solomon, vice president for health policy at the Center on Budget and Policy Priorities in Washington. “Once they come up with a formula, they don’t have to see the faces of the people who are losing coverage. Those decisions are passed down to the governors, who have to figure it out.”

Many governors prefer an ACA repair-replace framework to the fast-tracked repeal-replace strategy that the congressional Republicans are hell-bent on. And if governors know more about Medicaid than most members of Congress, then Massachusetts Governor Baker, who spent a decade as the CEO of Harvard

Pilgrim Health Care and was a state budget chief, knows more about health-care policy than any current governor. In a January letter to House Majority Leader Kevin McCarthy, Baker specifically outlined Medicaid’s existing flexibility and his state’s history with the 1115 waiver, and noted that “a shift to block grants or per capita caps for Medicaid would remove flexibility from states as the result of reduced federal funding.” He continued, “States would most likely make decisions based mainly on fiscal reasons rather than the health care needs of vulnerable populations and the stability of the insurance market.”

“He understands the game is that the feds want to shrink the money going to states,” says McDonough, the Harvard professor, of Baker. The governor, who is up for re-election next year, also understands that he must tread carefully in a Democratic state where there is strong support for the existing state health system. While the House Republicans remain inflexible, the opposition of Baker and some other GOP governors, who made the rounds on Capitol Hill during the governors’ Washington confab, may have sown enough doubt among Senate Republicans to help scuttle the bill. (Baker declined a request for an interview through a spokesman.)

In 2016, the Republican Party platform labeled Medicaid “the next frontier of welfare reform,” one reason work requirements have emerged as a touchstone for Medicaid. Congressional Republicans continue to demonize Medicaid recipients, particularly the “able-bodied” who do not work and receive Medicaid coverage, as underserving people who are gaming the system. These new Medicaid code words telegraph stereotypes about urban areas, African Americans, and other minorities and are reminiscent of the GOP’s “welfare queens” pejoratives of decades past—even though far more people on Medicaid, like welfare, are white.

The health-care sector is woefully unprepared to cope with the Pandora’s box of ills that would be unleashed by entitlement cutbacks predicated on demonizing yet another group of Americans. “This is not your uncle’s welfare program,” says Bonnyman, the Tennessee attorney. “This is a cornerstone of the health-care financing system in the United States. If you want to hack away at that, good luck to you.”

Spring 2017 The American Prospect 71

The War On

Regulation Under Trump, it’s open season on health, safety, labor, financial, and environmental measures—that protect people who voted for him.

By Rena S t einz o r

72 WWW.Prospect.org Spring 2017

A a

n e u p o ko e v / i s t o c k b y g e t t y

cornerstone of Donald J. Trump’s presidential campaign was his declaration of war on regulation and the agencies that write it. He has promised repeatedly to get rid of 75 percent of rules now on the books.

More recently, Steve Bannon, the chief policy guru in the Trump White House, defined the mission of the war more accurately as “deconstruction of the administrative state.”

Ten days after taking office, Trump issued an executive order to accomplish his regulatory pledge by requiring agencies to kill two rules for every new one they propose, and has held a press event to announce further attacks almost every day. Another major tool is the legislative veto of so-called “midnight” rules issued by the Obama administration in its last five months in office and the passage of “regulatory reform” legislation that would make future rulemaking very difficult. All of these changes are a dream come true for corporate lobbyists. The oil and gas industry alone spends $300 million annually to lobby Congress, and fields three lobbyists per member.

Legislative vetoes are permitted under a 1996 law, the Congressional Review Act, enacted by the Gingrich Congress, aimed at thwarting President Bill Clinton’s efforts to regulate prior to a presidential election that Republicans hoped to win. The first midnight rules to fall in the Trump era included a Securities and Exchange Commission requirement that oil and gas companies disclose how much they paid foreign governments for drilling rights—a provision of the Dodd-Frank bill enacted to detect illegal bribery; a Department of Interior prohibition on coal companies dumping mountaintop removal debris in streams; and a requirement that the Social Security Administration support gun control enforcement by sending to the attorney general the names of severely disturbed people receiving disability benefits.

As this article goes to press, two more repeals await Trump’s signature: a rule that requires states to assess individual school performance and report those results to parents, and a rule developed by the Bureau of Land Management to give the public more say in whether

to allow drilling, mining, and logging on 250 million acres of public land. Oil and gas interests, coal and other mining companies, and the gun lobby led the scrum, but electric utilities, federal contractors, bankers, payday lenders, and the chemical industry were not far behind.

The abbreviated Congressional Review Act process applies only to rules issued by the Obama administration after June 13, 2016.

Unraveling older rules will be quite timeconsuming, presenting deregulators with a fundamental dilemma. The most effective, long-lasting, and (not incidentally) transparent gutting of rules would require legislative revisions of the statutes that created the programs and gave agencies authority to write rules. But this approach would invite far stronger political backlash than obscure procedural changes that can be made to sound relatively innocent.

The House has already passed legislation written in this vein, called the Regulatory Accountability Act. A revised version is likely to be the main vehicle of deregulation used in the Senate. The bill would add several dozen steps to the rulemaking process, including a requirement that agencies call witnesses during rulemaking and allow opponents to cross-examine them. The regulatory process is already glacial. The Occupational Safety and Health Administration managed to complete just two significant rules reducing workplace exposures to hazardous materials in eight years, and one has midnight status.

Much of the 2010 Dodd-Frank Act has not yet been implemented because a process intended to be fair-minded invites industry delaying tactics. Additional procedural reforms will force underfunded agencies to abandon rulemaking. The only viable alterna-

tives are case-by-case enforcement or inaction.

The House also passed the REINS Act (Regulations from the Executive in Need of Scrutiny), which would prevent any regulation from going into effect unless Congress acted affirmatively to approve it. If enacted, it would accomplish a seismic shift in power from the president to Congress, turning the terms of their relationship back as far as before the New Deal. Another bill would require courts to consider regulators’ decisions “de novo,” or without any deference to the special expertise available within agencies, further demeaning their stature. Supreme Court nominee Neil Gorsuch has endorsed this change.

As usual, House Republicans legislated by rolling over Democrats and ignoring publicinterest groups. The stream of legislative missiles landed with a crash in the Senate quite early in the current session. How fast the Senate acts depends on an explosive brew of other crises, such as Russian interference in the 2016 election, radical changes in immigration policy, the confirmation process for Gorsuch, appropriating money to keep the government running, various international crises, and, perhaps most important of all, the volatility of the Trump White House.

Since some of this legislation can be filibustered and therefore requires 60 Senate votes to pass, the fate of broad regulatory revision is likely to depend on a core of conservative Democrats, including Senators Heidi Heitkamp (North Dakota), Joe Manchin (West Virginia), Claire McCaskill (Missouri), Bill Nelson (Florida), and Jon Tester (Montana), who face tough challenges in states that went red last November. McCaskill and Heitkamp are already in negotiations with Republican Senators Rob Portman (Ohio) and James Lankford (Oklahoma) to develop bipartisan compromises that might be less damaging, but still potent enough to congeal future rulemaking.

Two powerful categories of interest groups have combined forces to support deregulation.

The first is led by the Freedom Caucus, the loose organization of House Tea Party members, which fiercely opposes the regulatory state. Dismantling rulemaking represents low-

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hanging fruit that, in the immortal words of Grover Norquist, president of Americans for Tax Reform, reduces government “to the size where I can … drown it in the bathtub.” The caucus sent Trump a list of 228 rules in need of destruction. The list identified 73 separate rules addressing climate change.

The second category of participants is the long list of trade associations, exemplified by the Chamber of Commerce and the National Association of Manufacturers, that represent industries subject to proposed or existing rules.

As a whole, this category of participants is both more eclectic and more pragmatic, without any unifying agenda other than saving money by blocking regulation. Bridging the gap between the two categories are conservative think tanks such as the Heritage Foundation and the Competitive Enterprise Institute.

Midnight Rules

When Congress gave itself authority to kill rules if both the House and the Senate passed a “resolution of disapproval,” it exempted such resolutions from filibuster, a significant advantage

Attacks on environmental protections may play well in coal and oil country, but several current polls show that public opinion is trending in the opposite direction. for the majority party. But consideration of a resolution of disapproval still requires ten hours of debate under Senate rules. The ten hours are equally divided, so Republicans can speed matters along by giving up their five hours and letting Democrats talk to an empty chamber for the remaining five. Still, leaders must pick carefully which rules deserve top billing.

The Congressional Review Act requires agencies and departments to forward each “major” rule (those imposing costs of $100 million or more) to Congress, but only gives the House and Senate 60 subsequent legislative days to pass a resolution. This feature means that the law’s power is at its apex when the executive and legislative branches are controlled by the same party, when the incoming president is of a different party than the outgoing one but the same

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party that dominates Congress, and when the outgoing president waited until the end of his administration to get controversial rules out the door. Until last month, this veto authority was invoked only once, at another notable turning of the political tables, when incoming President George W. Bush signed a resolution killing a rule to prevent ergonomic injuries issued by the Clinton administration’s Occupational Safety and Health Administration.

Obama’s legacy rules, finalized before June 13, 2016, including one to cut greenhouse gas emissions from power plants in order to slow climate change, were issued before this deadline, removing them from the legislative veto threat, although they remain a juicy target for congressional conservatives. But when Hillary Clinton lost the election, Obama decided to

fast-track rules that were nearly final, exposing approximately 150 to possible veto. The list includes everything from routine, minor rules to controversial big-ticket targets.

What critics have dubbed “Obama’s historic midnight surge” was risky because the law also says that once a resolution of disapproval is enacted, the agency cannot issue a “substantially similar” rule, in effect depriving regulators of some as yet undetermined amount of legal authority to revisit the problems addressed by the vetoed rule. In lobbyist lexicon, legislative vetoes have the potentially enormous advantage of “salting the earth”—destroying future agency efforts to address a problem.

For a courageous agency, writing a new rule that is not substantially similar to the vetoed version but still advances the public interest should be possible. But few agencies are courageous these days. OSHA , for example, has never taken another run at the severe problems of ergonomic injury in the workplace, even as researchers have continued to document the severity of such hazards, especially in industries, like poultry processing, that depend on

c arl a k. johnson / ap images

Different Planets: EPA employees and activists in Chicago protest …

melissa phillip / houston chronicle via ap images

… the nomination of Scott Pruitt, a prominent climate-change denier, for administrator of the agency.

the Hispanic and African American working poor. Obama must have calculated that getting the rules on the books and making it harder to roll them back was worth the risk that some would be vetoed, potentially barring future action on the problem.

As this article goes to press, in addition to the five resolutions of disapproval already adopted, 53 resolutions to disapprove 32 rules are pending—34 in the House and 19 in the Senate. Among the more blatant are resolutions killing the following: ■ A Bureau of Land Management rule compelling reductions of methane leaks from oil and gas wells drilled on public lands. Methane is a potent greenhouse gas that causes climate change. Despite improved technology, the standards had not been updated in 30 years.

■ A rule issued jointly by the Department of Defense, the General Services Administration, and NASA , designed to improve federal contractors’ compliance with labor laws by requiring firms to disclose past violations. A federal district court judge in Texas has stayed implementation of this requirement, which contrac-

tors have helpfully nicknamed the “blacklisting rule,” but Congress stands ready if the courts do not take care of this nasty business.

■ Consumer Financial Protection Bureau controls on exploitative terms of prepaid credit cards.

■ A Department of Labor rule requiring financial advisers to put their individual clients first when giving investment advice.

■ An Environmental Protection Agency rule requiring consideration of renewable fuel sources. This rule was targeted by Freedom Partners, which was organized by the Koch brothers, in a document entitled “A Roadmap to Repeal: Removing Regulatory Barriers to Opportunity.”

Others that may end up on the chopping block include an EPA standard to reduce greenhouse gases from heavy-duty trucks and tractor trailers, which would cut 1.1 billion tons of carbon dioxide over the life of the covered vehicles; another EPA rule requiring chemical companies to implement controls to prevent and respond to leaks; and Department of Energy rules to increase the efficiency of

furnaces, commercial boilers, and portable air conditioners, which over the lifetime of the appliances would save as much energy as one-fifth of the total amount consumed in the United States in a single year.

Special interests are gleeful about the speed and ruthlessness of these victories. Robert Murray, owner of one of the largest U.S. independent mining companies, gloated over the veto of the stream-protection rule, telling a Politico reporter: “It’s gone. Hillary’s gone. It’s gone. Obama, the greatest destroyer in America, will soon be gone.” It remains to be seen if Murray’s assumption that rules designed to end the Obama administration’s so-called “war on coal” will increase the use of the heavily polluting fuel. Analysts have pointed out that the reason coal production has waned has far more to do with market pressures such as the availability of less-expensive natural gas and renewable energy and declining demand in Asia.

Attacks on environmental protections may play well in coal and oil country, but public opinion is trending in the opposite direction.

A Reuters/Ipsos poll found that 60 percent of Americans supported maintaining and even strengthening the EPA’s authority. A Gallup poll reporting on historical trends in public attitudes toward the threat of climate change found that in 2016, 40 percent of respondents thought that the seriousness of climate change was “generally underestimated,” while 25 percent thought the warnings were “generally correct.”

The White House Piece of the Action

A coalition of labor and environmental groups led by Public Citizen has challenged Trump’s proposed two-for-one executive order in court, arguing that if Trump wants to take down rules, he cannot do so by decree.

In an ironic twist that demonstrates the difficulties involved in implementing two-forone, the Trump administration exempted its first significant regulation—an effort to stabilize health insurance markets—and continues to publish new rules in the Federal Register.

Of course, most agencies will not enjoy this favored treatment. Those assigned to protect public health, worker and consumer safety, and the environment will internalize the president’s order and table new rules unless they are specifically required by the authorizing statute.

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An as-yet poorly defined universe of rules has simply disappeared into the bowels of bureaucracy, raising the possibility that the administration plans to abandon them without saying another word, an approach that legal experts say may be vulnerable to legal challenge. They include a final rule from the Federal Railroad Administration that would have required two engineers on duty in trains pulled by large locomotives. The rule is in response to a horrific accident in the Canadian town of Lac-Mégantic, where a train slid down a hill because the sole engineer could not secure it effectively, derailed, and burst into flames, killing 47 people.

The Trump administration, through budget cuts and the appointment of agency heads who are hostile to agency missions, is likely to accomplish at least as many lasting changes, if not substantially more than Congress will accomplish anytime soon. It’s much easier for a president to deny an agency funds and thereby cripple its mission than to shut it down.

The EPA is the most prominent poster child for “hollow government,” the vivid term used

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to signify the yawning gap between mandates and money. In constant dollars, its $8.1 billion budget for 2016 is less than half what the agency received in 1978, before many environmental laws were enacted. Now, Trump has proposed a budget that would cut EPA funding by 31 percent, bringing it to its lowest level since its creation in 1970.

The Consumer Product Safety Commission, responsible for the safety of all consumer goods except motor vehicles, food, drugs, and cosmetics, had 786 employees when it was first created in 1982, but had only 567 in 2016—a cut that is especially disturbing because the nation is increasingly dependent on imports from Asian countries where regulation is nonexistent or erratic. Other agencies have undergone comparable downsizing. Further cuts could push them beyond the boundary between viability and dysfunction.

What budget-cutting cannot accomplish, officials hostile to an agency’s mission can.

Take, for example, former Oklahoma Attorney General Scott Pruitt, the new administrator of the EPA . Not only is he a climate change

Rena Steinzor is a professor at the University of Maryland Carey Law School and was president of the Center for Progressive Reform.

She is the author of Why Not Jail? Industrial Catastrophes, Corporate Malfeasance, and Government Inaction.

j. scot t applewhite / ap images

Grim Reapers: House Speaker Paul Ryan and Health and Human Services Secretary Tom Price

denier, he was a proud participant on the side of regulated industries in 14 lawsuits challenging the agency’s authority over everything from the cleanup of the Chesapeake Bay to the relative safety of mercury and arsenic emissions from coal-fired power plants. The EPA’s career staff had two reactions to his imminent arrival: dread and resistance. Pruitt is expected to cooperate with regulated industries’ requests that major rules be rescinded or drastically trimmed back.

Similar problems exist at the Federal Communications Commission, where new Chairman Ajit Pai is reconsidering net neutrality; the Department of Health and Human Services, where Secretary Tom Price will lead the charge on rolling back the Affordable Care Act; and the Securities and Exchange Commission, where new Chairman Jay Clayton is expected to lead the effort to repeal major provisions of Dodd-Frank.

The president has not advanced any coherent theory for the rollbacks other than the litany that deregulators have advanced for decades: Regulations are bad. They take away jobs and destroy the economy. To make America great again, we need to kill them. When Trump is on a roll, he seems able to convince voters that the issue is not their health and welfare but rather the frustrations of dealing with the Department of Motor Vehicles in our most dysfunctional state.

Yet at some point, President Trump will be held responsible for the inevitable regulatory failure that will follow from his policies, especially if his pledge to grow the economy by an unattainable 4 percent falls flat and his supporters realize that deregulating is not the silver bullet he promised. The occurrence of catastrophes like the Deepwater Horizon blowout, the collapse of the Upper Big Branch coal mine, the sale of eggs contaminated by salmonella, or the marketing of compounded drugs tainted by fungal meningitis will be laid at the White House doorstep, and no amount of deregulatory bluster will distract from the bad publicity.

Trumping

State Regulators and Juries

The right backs states’ rights when that’s convenient— but uses federal preemption to overrule blue state policies.

By T ho m as O. M c G arit y

I

n the wake of the 2016 elections, many progressives have sought solace in the prospect of resisting Trump administration initiatives and advancing progressive goals in blue states. In his State of the State address last January, California Governor Jerry Brown proclaimed: “California is not turning back. Not now, not ever.” Lieutenant Governor Gavin Newsom suggested that California might use its stringent environmental protection laws to impede the Trump administration’s efforts to build a wall along its southern border. Washington Governor Jay Inslee proudly announced that “our state will remain undeterred and we will not be slowed one iota by the foolishness that we’re hearing out of the White House.”

Conversations about how progressive states should resist regressive Trump administration policies and sidestep Republican control of Congress often ignore the elephant in the room—the power of the federal government to preempt state regulations and even the ability of victims of corporate abuse to seek relief in state courts.

Under the Supremacy Clause of the United States Constitution, federal statutes and regulations are the “supreme law of the Land,” state laws “to the contrary notwithstanding.” This means that when Congress makes law or a federal agency regulates, state laws that conflict with the federal law, or even address the same subject matter, are null and void, unless Congress has provided otherwise. Congress does frequently allow states to enact laws and regulations that go beyond a federal floor, as in minimum-wage rules and clean air standards. But what Congress giveth, Congress can taketh away.

Sometimes Congress addresses preemption in the laws that empower federal agencies to regulate business practices. Lawyers then argue over the meaning of these “express preemption” clauses when companies and their trade associations attack more stringent state laws. Even when federal statutes are silent about preemption, the Supreme Court has held that federal regulations can “impliedly” preempt state laws where Congress would have preempted them, had it thought about the matter. The law of federal preemption is not a model of clarity, but it is not easily ignored, because powerful interests use it to shield themselves from stringent state regulation.

We can understand federal preemption as a neutral tool that can be invoked for good or ill.

It is good that the Voting Rights Act of 1965 preempts state laws that restrict the rights of minority citizens to vote. It is bad when a regulated industry persuades Congress to create a weak regulatory program to preempt states with strong programs. For example, the chemical industry has long pressed Congress to preempt strict state toxic substances control laws that make it harder for them to market their products in states like California.

It finally prevailed last year when Congress passed the Lautenberg Chemical Safety Act, which enhanced the EPA’s ability to regulate toxic chemicals—but also preempted future state regulations. Californians will have to live with the Trump administration’s regulation of future toxic chemical risks.

Recognizing that preemption can cut both ways, Congress has sometimes written preemption clauses that preempt only weaker

state regulations. Thus, states like California and Connecticut have written more stringent air quality standards than the EPA’s standards without fear of preemption. But Congress can always rewrite such laws to take away states’ rights to be more protective than federal agencies.

Preempting the Right to Sue

One aspect of the law of preemption that comes as a surprise to most people is the power of Congress and federal agencies to preempt the ability of private individuals to sue irresponsible corporations in state courts for harms caused by badly designed products or overly risky activities. Congress can, of course, replace state common law liability regimes with federal regimes, such as the federal statutes governing claims by injured railroad workers for compensation from employers, or laws outlining liability for damaging side effects of vaccines.

Or Congress can act to undercut such rights.

The Supreme Court in 1992 concluded that federal regulatory requirements can preempt state common law claims without providing an alternative compensation mechanism, leaving the victim with no remedy at all against companies whose products or activities comply with the federal requirements, even if those requirements are feeble. In Cipollone v. Liggett Group, Inc., the Court held that a statute specifying warnings for cigarette packages preempted the claim of Rose Cipollone, a 57-year-old woman from Little Ferry, New Jersey, who said the packages of the cigarettes that she smoked did not adequately warn her of the hazards of smoking. The fact that Congress had decided

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after she had originally filed her case that the package warning was wholly inadequate did not resurrect her claim for damages.

After the Cipollone decision, you could practically hear the wheels turning in the heads of lawyers for manufacturers of dangerous products: If federal regulations can preempt state legal claims, then all we need to do to rid ourselves of pesky lawsuits is persuade federal agencies to promulgate weak regulations.

In sum, federal preemption can both obliterate state statutes and regulations that are inconsistent with federal law and rob injured citizens of their right to seek redress from irresponsible corporations that comply with weak federal regulations. As we shall see, this means that progressives cannot simply ignore what goes on in Congress and federal agencies during the next four years and just focus on state legislatures and courts in their efforts to improve public welfare. They will have to fight at both levels of government.

The Law and Policy of Federal Preemption

In the battles in Congress, agencies, and the courts over health, safety, environmental, and consumer protection legislation, regulated companies and trade associations like the Chamber of Commerce argue that preemption is necessary to provide the uniformity required to ensure smoothly functioning national markets. Environmental groups, consumer activists, and plaintiffs respond that federal agencies are subject to capture by regulated interests and, in any event, cannot be trusted to get it right every time.

In the political realm, politicians often employ preemption opportunistically to achieve desirable outcomes, with little regard to broad principles of federalism. Conservative politicians are vocal proponents of states’ rights when it comes to stringent federal voting-rights laws, but they pay little heed to state prerogatives when Congress is considering whether to preempt stringent consumer protection laws. Progressive politicians can also vary in their support for preemptive federal laws, but they consistently support federal laws that preempt less-stringent state protections and preserve tougher standards.

Decades ago, the Supreme Court estab-

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lished a “presumption against preemption” when Congress legislates in a field traditionally regulated by the states, such as setting local electric utility rates or writing local building codes, and it frequently alludes to that presumption in modern opinions. But the power of that presumption appears to wax and wane, depending on whether the majority of the Court thinks preemption is appropriate in particular cases. And that may depend on whether the Court trusts the preempting agency, or whether presumption leads to an outcome the justices prefer.

Express Preemption

So long as it is exercising its constitutional power to regulate interstate commerce, Congress can decide that the regulatory regime that it imposes also preempts state regulatory regimes and state common law. It does this by adding a separate provision to the statute specifying the extent to which the federal regime preempts state law. Hundreds of federal statutes contain such express preemption clauses.

A good example of express preemption is the Atomic Energy Act of 1954, under which Nuclear Regulatory Commission regulations preempt all state laws dealing with the construction and operation of nuclear power plants and other facilities handling high-level nuclear materials. Similarly, the Medical Device Amendments Act of 1976, which prohibits manufacturers of Class III medical devices from marketing them without Food and Drug Administration approval, expressly preempts common law claims that devices approved by the FDA are nonetheless defective. When it comes to highly complex and potentially dangerous technologies like nuclear power plants and medical devices, Congress has decided to place responsibility for ensuring that they are designed, constructed, and operated safely in a single highly expert federal agency, without interference from state agencies or courts.

Since Congress rarely speaks with perfect clarity, courts must still interpret express preemption clauses in regulatory statutes. And sometimes they do a very poor job. For example, the express preemption clause in the Consumer Product Safety Act preempts only state “standards or regulations,” and it has a “savings clause” stating that compliance with standards

issued by the Consumer Product Safety Commission (CPSC) “shall not relieve” manufacturers from “liability at common law.” Despite the clarity of the savings clause, the Eighth Circuit Court of Appeals held that 17-year-old Brian Moe could not receive a jury trial on his claim that a defectively manufactured lawnmower cost him all the fingers on his right hand, because the product’s design complied with CPSC standards.

Implied Preemption

The Supreme Court has also held that “[i]f Congress has not entirely displaced state regulation over the matter in question, state law is … preempted to the extent it actually conflicts with federal law.” This form of “conflict” preemption comes in two varieties. “Impossibility” preemption occurs when compliance with both the state law and the federal law is impossible because conduct that complies with state law will violate federal law and vice versa. This species of preemption makes a great deal of sense. A company should not be put in a position where it is subject to federal prosecution for complying with state law and subject to state prosecution for complying with federal law. It turns out, however, that such situations are exceedingly rare.

The most frequently encountered (and most controversial) variety of conf lict preemption, known as “obstacle preemption,” occurs when “the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.” Obstacle preemption gives courts fairly broad discretion to throw out state regulatory laws and common law claims. And that gives federal agencies an opportunity to promulgate weak regulations that preempt more protective state regulations or lawsuits claiming that companies should have done more to protect victims than the federal regulations require.

A good example is Gade v. National Solid Wastes Management Association, in which the Supreme Court held that the minimal training requirements that the Occupational Safety and Health Administration mandated for workers at hazardous waste disposal facilities during the Reagan and George H.W. Bush administrations preempted Illinois’s attempt to protect those workers (and the general public) by requiring them to have special licenses. The

Court found that the licensing regime, which had its own arguably more stringent training requirements, presented an obstacle to achieving the federal training requirements.

Obstacle preemption is especially worrisome when companies seek to avoid liability by claiming that compensating victims presents an obstacle to attaining the purposes and objectives of a federal regulation. During the George W. Bush administration, some federal agencies aggressively insisted that federal regulatory requirements impliedly preempted state common law claims. The newly appointed chief counsel at the FDA made it his mission in life to change that agency’s position on whether FDA approval of labels for prescription drugs preempted common law claims that the labels contained inadequate warnings of their side effects. The agency had for 40 years taken the position that its approval of drug labels ensured that they met a threshold standard for warning, but common law juries could hold companies to a higher standard. Taking the opposite position, the chief counsel’s office wrote several amicus briefs in pending state litigation asserting that the plaintiffs’ claims were preempted.

After a great deal of litigation, the Supreme Court in 2009 held that FDA approval of drug labels did not provide an obstacle to compliance with the FDA’s labeling requirements, because FDA regulations allowed drug manufacturers to amend their labels at any time to contain more stringent warnings. The Court in a later case, however, held that claims against manufacturers of generic drugs were preempted, because a generic manufacturer had to use the original manufacturer’s label and lacked the power to insist that the FDA amend that label. Purchasers of generic drugs probably don’t know that the lower price comes with a prohibition on suing generic manufacturers.

Obstacle preemption can void state common law claims even when Congress has provided a savings clause allowing such claims. The National Traffic and Motor Vehicle Safety Act of 1966 empowers the National Highway Traffic Safety Administration (NHTSA) to promulgate safety standards for automobiles. Concluding that varying state regulatory standards would destroy the national market in cars, Congress included an express preemption clause prohibiting states from establishing safety standards

for autos that are not identical to the federal standards. But it also added a crystal-clear savings clause providing that compliance with an NHTSA-promulgated standard does “not exempt a person from any liability at common law.”

When 17-year-old Alexis Geier’s car slammed into a tree in Washington, D.C., she suffered serious injury despite the fact that she was wearing a shoulder harness and lap belt. Her attorney claimed that her 1987 Honda Accord was defectively designed because it lacked an airbag, a technology that had at the time been effective and available for years. Honda responded that the NHTSA’s passive restraint standard did not require airbags. Although the agency had required airbags during the

Congress has the power to change the current law that allows California to have tougher emission standards than the federal ones.

Carter administration, it reversed itself at the outset of the Reagan administration to give auto manufacturers a choice between airbags and shoulder harness–lap belt combinations.

Disregarding the savings clause, the Supreme Court found that a jury conclusion that Honda should have installed airbags would present an obstacle to attaining NHTSA’s goal of giving auto manufacturers a choice. Congress later required newly manufactured cars to come equipped with life-saving airbags, but that did nothing to ameliorate Alexis Geier’s injuries.

Field Preemption

The Supreme Court has also held that “[i]f Congress evidences an intent to occupy a given field, any state law falling within that field is pre-empted.” A court, in other words, may conclude that Congress meant for a regulatory program to co-opt an entire field of regulation of private conduct. Thus, for example,

the federal immigration laws preempt all state laws addressing immigration into the United States of persons from other countries. And the National Labor Relations Act preempts state law in the field of collective bargaining between employers and employees.

Field preemption can also deprive victims of corporate misconduct of their day in court.

In a recent case, Jill Sikkelee claimed that her husband, David, was killed because the engine of the Cessna aircraft he was piloting was defectively designed. The manufacturer of the engine, Precision Airmotive Corporation, claimed that regulations promulgated by the Federal Aviation Administration establishing minimum standards for airplanes and airplane parts preempted Sikkelee’s claim because the FAA’s airplane safety program preempted the entire “field of air safety.” In one of the increasingly rare cases that rigorously apply the presumption against preemption, the Third Circuit Court of Appeals held that the FAA’s minimum standards did not go that far. The court went on to hold, however, that Sikkelee’s claim might be preempted as an obstacle to the FAA’s implementation of its aircraft certification program, despite the fact that the agency delegates 90 percent of its certification activities to private entities, including the manufacturers themselves. The case is now pending before the lower court.

Floor Preemption: A Double-Edged Protection

The extent to which federal law preempts state law is entirely a matter for Congress to decide.

Congress has wisely decided to employ federal preemption as a one-way ratchet in some statutes by prescribing a hybrid form of preemption called “floor” preemption. These express preemption clauses preempt state laws that are less stringent than the federal regulations, but not those that are more stringent. The Fair Labor Standards Act, for example, contains a floor preemption provision that allows states to prescribe higher minimum wages and shorter workweek hours than the federal requirements.

Fortunately, most of the federal pollution control statutes contain f loor preemption clauses. Thus, California may be able to invoke its environmental regulations to restrict the Trump administration’s efforts to build a wall

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along its border with Mexico. Of course, the current Republican-controlled Congress could respond by enacting a border wall statute that preempts all California environmental laws.

The bad news is that nearly all of the federal statutes protecting the public from fraud and risks to health and safety, not to mention systemic risks to the economy, do not employ floor preemption. And the current Congress could revise other floor preemption clauses as well.

When Federal Preemption Is a Bad Thing

Federal preemption is a bad thing when it prevents states from protecting their citizens more effectively than federal agencies that sometimes fail to fulfill their statutory responsibilities. Regulatory failure is clearly a problem when federal agencies are run by political appointees who are ideologically opposed to their agencies’ statutory missions. But even under the leadership of nonideological technocrats, agencies can become captured by regulated interests. The experts who review new drug applications at the FDA, for example, bear the “dual” responsibilities of advising drug companies on how to get their drugs approved and reviewing those drugs to determine whether their benefits outweigh the risks of adverse side effects. During the hundreds of closed-door meetings they have with drug company representatives, they can lose some of their objectivity, especially when there is the possibility of a higher-paying job in the pharmaceutical industry sometime in the future.

Even federal agencies that are trying to do the right thing cannot do an adequate job if they lack sufficient resources. For example, company documents and depositions produced in state court litigation have revealed many successful attempts by devious drug companies to manipulate overworked FDA drug reviewers by submitting misleading data and withholding information that sheds a bad light on their products. Despite this ongoing risk of fraud, it looks like the Trump administration and a Republican-controlled Congress will be cutting agencies’ budgets right through the bone and into the marrow, thereby reducing their ability to protect the public.

While the technical experts that inhabit federal agencies undoubtedly have more expertise than judges and juries and many state agen-

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cies, federal agencies are notoriously bad at anticipating and responding to technological change. The NHTSA’s recent publication on self-driving cars, for example, explained that it was providing guidelines, rather than writing enforceable regulations, for those vehicles because it did not have the capacity to keep up with the rapidly evolving technology.

Even when a federal agency does have a good understanding of the risks posed by a newly emerging product or technology, it takes a long time to move from initial hazard recognition to a final regulation because of the current highly ossified rulemaking environment that requires lengthy cost-benefit analyses and review by small-business panels, the Office of Manage-

States might creatively use their taxing and contracting powers to incentivize companies to exceed the minimal federal standards. ment and Budget, and other federal agencies.

And the House of Representatives, challenging existing regulations, has just passed the Regulatory Accountability Act, which adds even more analytical and review requirements that cling like barnacles to the federal regulatory process. As slow as they are, jury trials and some state agencies can get issues resolved far more expeditiously than federal agencies.

Once an agency has undertaken the Herculean task of promulgating a major regulation, it is generally reluctant to revisit that regulation in the light of new information or changes in technology. Consequently, federal regulations can become obsolete and fail to provide the protections they were designed to yield. For example, the CPSC amended the original flammability standard for mattresses after numerous tragic fires had clearly demonstrated that it was woefully out of date. When the agency finally brought the 50-year-old standard up to

date during the George W. Bush administration, it also declared that the new standard would preempt state standards and common law litigation. At the agency’s current pace, we might expect an updated standard again in another 50 years, even though fire prevention technologies may improve considerably in the interim. In the meantime, victims of mattress fires will lose their right to persuade juries that manufacturers should have adopted those more effective protections.

Finally, because it is so difficult to promulgate major regulations and defend them in reviewing courts, federal agencies tend to set standards at the minimum level necessary to protect the public, rather than the optimum level or a level that provides a margin of safety.

A former head of the NHTSA observed that agencies often set standards at the level of a “20-yard field goal” because they are “easier to make than miss.” In fact, the Regulatory Accountability Act that the House just passed would require all federal agencies to adopt the “least costly” of the available regulatory alternatives, even if a more stringent alternative could achieve a great deal more safety at little additional cost. State agencies and common law juries might legitimately conclude that companies should be kicking 45-yard field goals when it comes to protecting the public from dangerous products and activities. But that won’t matter, because any more protective state standards will be preempted.

Upcoming Battles

As the Trump administration begins to promulgate weak regulations and roll back existing standards, preemption battles are likely to flare up over attempts by state legislatures and courts to protect their citizens from risks posed by poorly regulated products and activities.

One battle that is already brewing concerns the EPA’s standards for greenhouse gas (GHG) emissions from automobiles. One exception to the Clean Air Act’s floor preemption clause is a provision that prohibits states from promulgating automobile emissions standards that are more stringent than those prescribed by the EPA . An exception to that exception, however, allows California (and states following California’s lead) to enforce more stringent emissions standards if California first obtains

a waiver from the EPA to do so. With one exception, which it later overturned, the EPA has never disapproved such a waiver request.

In 2011, the EPA and California entered into an agreement in which the EPA approved the state’s request to regulate GHG emissions more stringently, and California agreed to link its overall GHG reduction targets to the EPA’s national targets from 2017 through 2025. At the industry’s insistence, however, the EPA agreed to conduct a “midterm evaluation” of the federal standards for model years 2022 through 2025 with an eye toward reducing their stringency.

On January 12, 2017, the EPA rushed out a final determination that “automakers are well positioned to meet the standards at lower costs than previously estimated.” Since this is an adjudication, and not a regulation, it is not technically subject to the memorandum that Chief of Staff Reince Priebus wrote on January 20 freezing all non-final federal regulatory actions. But the auto industry is pressing the administration to withdraw the final determination anyway. If the EPA reverses itself, California should be on solid legal ground in insisting that its standards nevertheless remain in effect, because of the 2011 agreement. Since California is such a large market, that should ensure that auto manufacturers comply with the California standards nationwide through model year 2025.

A different fate may await the ambitious climate action plan that California launched on Trump’s inauguration day. It calls for reducing petroleum use in the transportation sector by 50 percent by 2030. To the extent that achieving that goal will require even tougher standards for automobiles sold in California after the 2025 model year, the state will have to seek another waiver from the EPA . If the agency disapproves, any more stringent state standards will be preempted by weaker EPA standards.

When Senator Kamala Harris raised the issue at prospective EPA administrator Scott Pruitt’s confirmation hearings in January, he ducked the question. In briefs challenging several EPA regulations, Pruitt has argued that states should be allowed to craft their own environmental requirements. It remains to be seen whether he will adhere to that principle when California, rather than his home state of Oklahoma, is doing the regulating.

A number of other preemption battles may

loom just over the horizon. The Federal Hazardous Substances Act, for example, authorizes the CPSC to require consumer products containing hazardous substances to have one of three specified warnings (DANGER, WARNING, or CAUTION) on their labels, depending on the degree of hazard. An express preemption clause preempts any other warning on the label, but it allows a state to petition the CPSC to waive the preemptive effect of the federal requirement upon a showing that a more stringent warning would not burden interstate commerce. When the next child-poisoning tragedy prompts states to file waiver petitions, don’t expect a CPSC dominated by Trump-appointed commissioners to bend over backward to grant them.

The possibility of preemption should intensify the fights in the federal agencies over the stringency of new regulations. For example, we can expect a battle royal over the Department of Agriculture’s implementation of the recently passed GMO labeling law, because that statute provides that once the department’s regulations are in place, all existing and any future state GMO labeling requirements will be preempted. The residents of Vermont, which already has a stringent labeling law on the books, may find themselves stuck with vaguer warnings on foods that contain larger “adventitious” (unavoidable) amounts of GMOs. We could see an even bigger fight if the NHTSA decides to regulate self-driving cars.

If a proactive state attempts to promulgate standards relating to design and manufacture because it finds NHTSA guidelines insufficiently protective, you can bet that the automobile industry will beat a hasty path to NHTSA headquarters to insist that it promulgate “flexible” regulations that, under the express preemption clause discussed above, would preempt the fledgling state efforts.

Avoiding Preemption

Policymakers in progressive states should be thinking about creative ways to avoid federal preemption in the upcoming preemption wars.

For example, state governments can exercise their power to spend to insist that manufacturers of the products they purchase meet stricter standards than applicable federal requirements.

In addition, Congress usually leaves to the states power over siting requirements for federally

regulated activities like nuclear power plants, and states can creatively use that power to make it difficult or impossible for companies to undertake such activities within their borders. And states might creatively use their taxing power to incentivize companies to exceed the minimal expectations of federal agencies, though the federal courts may view brute force exercises of tax policy with a jaundiced eye.

In a passage often quoted by conservative opponents of a strong federal government, Justice Louis Brandeis called the states “laboratories” of democracy, where governments can experiment with different approaches to solving social problems. And many of President Trump’s recent appointees to powerful positions in his new administration profess to be strong proponents of federalism. Yet it is safe to predict that the Trump administration will attempt to reduce the role of states in exploring progressive alternatives to regulatory rollbacks and to social problems that arise in the future.

The Trump administration will also aggressively urge courts to dismiss claims by victims of irresponsible companies whose products and activities comply with weak federal regulations. Former Supreme Court Justice John Paul Stevens has written that allowing federal regulations to preempt state common law claims has “the perverse effect of granting complete immunity from … liability to an entire industry that, in the judgment of Congress, needed more stringent regulation.” Preemption of state common law claims will also grant immunity when regulatory agencies in the Trump administration weaken stringent federal regulations.

It will therefore not be enough for advocates of progressive change to retreat to progressive states and ignore what the Trump administration is doing in Washington, D.C., to reduce regulatory protections. Efforts at the state level are essential to keep the ball moving forward, but progressives must also be prepared to engage in upcoming federal preemption wars.

Thomas O. McGarity holds the Joe R. and Teresa Lozano Long Endowed Chair in Administrative Law at the University of Texas School of Law and is a board member of the Center for Progressive Reform. He is the author of The Preemption War.

Spring 2017 The American Prospect 81

Driverless Future?

F

ive to ten years from now, Uber hopes, the following will be an everyday occurrence: A driverless Uber car pulls up at Nick and Nicole Smith’s house at 7:30 in the morning. Their two kids, Julia, 16, and Joey, 14, hop into the car, and it then drops them off at school.

The Uber car returns to the Smiths’ suburban home, picks up Nick and Nicole, and drops Nicole at the train station to catch the 7:55 into the city. The car then drives 40 minutes to drop off Nick at his company’s headquarters nestled in an office park. During the drive, Nick uses his laptop to answer emails and finish a PowerPoint.

At 5:00 that afternoon, a driverless Uber car picks up Julia from field hockey practice and Joey from baseball practice and takes them home. Meanwhile, Uber has sent another car to pick up Dad at the office park at 5:30, and that car makes it to the train station in time to pick up Nicole, who’s due on the 6:15. The car then stops at a Chinese restaurant so the Smiths can pick up a takeout dinner. It waits while Nick runs in to get the food, and it then drops off the Smiths at home.

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Welcome to the brave new world of driverless cars and trucks. In this not-too-distant future, many Americans are likely to conclude that they no longer need—or want—to own a car. No more worrying about tune-ups or getting gas or shopping for auto insurance or renewing registrations. Uber’s controversial co-founder and CEO, Travis Kalanick, is very high on driverless technology, saying, “When there’s no other dude [i.e., a driver] in the car, the cost of taking an Uber anywhere becomes cheaper than owning a vehicle.”

And Uber is far from the only player. Ford Motor and BMW say they’ll have driverless cars on the road within five years. General Motors invested $500 million in Lyft (obtaining a 10 percent stake) to help it develop driverless cars.

Tesla, Volvo, Daimler, Toyota, Fiat Chrysler, Google, and Apple have also joined the race.

And now mighty Intel, eager to get into a new, fast-growing sector, jumped into the fray in March by announcing a $15.3 billion deal to acquire Mobileye, an Israeli company that is a leader in making sensors and cameras for self-driving vehicles. Depending on how things shake out, Ford or Fiat Chrysler may own and

manage self-driving fleets that compete head to head with Uber.

The coming of driverless cars and trucks raises several big questions. How long will the transition to these vehicles take? What will be the benefits and the costs to society? Who will be the winners and who, the losers (and it seems clear that many of the five million people who work as drivers will be losers)?

And what role should the government play in managing and regulating the arrival of this new technology, or should all this be left to the free market to sort out?

Also, what role should government take to help the millions of truck drivers, taxi drivers, and others who might lose their jobs, or should these displaced workers be left to fend for themselves? Should society require the winners from this new technology—most likely some giant corporations and the consuming public—to somehow share their gains with the losers, perhaps through some special levy on these new vehicles to finance programs to help the losers?

The shift to driverless cars and trucks will be one of the most important new technologies

m o n s i tj / i s t o c k b y g e t t y

If they ever get the bugs out, autonomous cars will put a lot of human drivers out of work. B y S t e v e n G r e e n h o u se

jared wickerham / ap images

Pitt Stop: Uber testing driverless cars on Pittsburgh streets, 2016

since the horseless carriage replaced buggies.

Yet the advent of self-driving vehicles will be different from the arrival of many previous technologies. Because we can see this technology coming years ahead of its arrival, we as a nation are in a position to take some smart policy steps to prepare and help the many people who will lose their jobs as a result of this new technology. But given America’s dismal history with easing economic transitions, such smart steps may not be taken, despite years of advance warning.

Self-driving vehicles will threaten the jobs of as many as five million people—workers who make a living as taxi drivers, long-haul truckers, Uber and Lyft drivers, local delivery drivers, limo chauffeurs, and even many bus drivers.

Beyond that, driverless cars could mean an end to many gas stations, auto repair shops, car washes, auto dealers, commercial parking lots, and car rental agencies, not to mention traditional auto insurance. Moreover, because this new technology will lead to a more efficient use of cars, the nation could well need fewer autos— and that could reduce overall car production.

These cars will benefit the public in ways that

many people don’t yet appreciate. “Most of us in the U.S. commute all alone in a single car—the average American driver spends 51 minutes to and from work every day,” says Raj Rajkumar, a professor of electrical and computer engineering at Carnegie Mellon University. “This is wasted time and wasted productivity. Driverless cars would be a big win for productivity.

You can spend 45 minutes doing something productive, including taking a nap.”

Rajkumar also sees a sharp drop in auto accidents. “About 1.3 million people die every year worldwide from auto accidents,” he says. “In the U.S., it’s about 38,000. Most of these accidents are caused by human error. Most of these lives would be saved with driverless technology.”

Rajkumar adds that autonomous cars would be a godsend for blind, disabled, and elderly Americans who can’t drive. “These people would gain mobility,” he says. “It would greatly help the 1.5 million legally blind Americans and the more than five million disabled people who can’t drive.” Autonomous cars will make it far easier and, in theory, cheaper for many disabled people to get to work. And they will make it easier for many elderly and disabled

people to go to movies or parks or shopping, and for the elderly to see their grandchildren and care for them after school.

Lawrence Katz, a labor economist at

Harvard, says there’s no denying that this radical new technology will imperil many jobs. The five million drivers who could lose their jobs, he says, represent almost 3 percent of the workforce and don’t, as a group, have bright prospects if they get laid off. “It’s disproportionately male, disproportionately non-college,” he says.

Five million jobs, he explains, “is about the same size as the decline in manufacturing jobs since 2000. It’s a comparable potential shock.”

The move to self-driving cars will of course produce some new jobs—in engineering, software, and marketing. But displaced former drivers generally won’t qualify for these whitecollar jobs. Instead, they could find themselves with lower-paying jobs at Walmart or Target, or they could be trained for something better.

According to Katz, there are two big reasons that the economic pain from losing five million driving jobs will be less than from losing five million factory jobs. First, drivers’ jobs are

Spring 2017 The American Prospect 83

spread fairly evenly across the United States, while manufacturing jobs were concentrated in one devastated region, the Midwest. The moreeven geographic distribution should make it easier for laid-off drivers to find jobs. Second, Katz noted, because factory workers average around $20 an hour, while drivers average $13, laid-off drivers would take less of a hit than factory workers if forced to take $10-an-hour jobs at Walmart. Still, Katz added, “This will be a shock to the labor market for non-college men. They’re already in tough shape.”

Bhairavi Desai, executive director of the New York Taxi Workers Alliance, which has 19,000 taxi, Uber, and Lyft drivers as members, shares these concerns. “Our people see this as a threat, and we know it’s closer than we realize,” she says. “These are workers on the margins, with language issues and low wages. Drivers are an older workforce. It’s people who are mainly in their forties and fifties and older. It’s going to be really hard to

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relocate these people within the economy.”

“It’s going to be very disruptive,” says Erik Brynjolfsson, director of the MIT Initiative on the Digital Economy. “It’s going to happen faster than a lot of people realize.”

How fast will it happen? Some companies, like Uber and Ford, see driverless cars becoming popular within five years, while some skeptical experts say it will take 20 or 30 years not just to develop a truly safe self-driving technology, but also to get needed government permissions, and to overcome public anxiety that could morph into public resistance.

Moody’s Investors Service predicts that selfdriving technology will not become a common option in conventional vehicles until 2030, and not become standard in all vehicles until 2035.

Moody’s further predicts that not until 2045 will a majority of vehicles be driverless and that by 2055, they will become nearly universal.

Uber and Google have prototypes on the road now. It’s one thing, though, to have a few

dozen or hundred closely supervised experimental vehicles on the road, but a very different thing to have several million self-driving cars on streets and highways across America.

Karl Brauer, executive publisher at Kelley Blue Book, an auto research firm, predicted that such cars would become mainstream across America in four to ten years. But Joan Claybrook, former head of the National Highway Traffic Safety Administration, says it could take 10, 20, even 30 years of tinkering with and improving self-driving technology until it is truly safer than human drivers.

In terms of its impact on the job market, “a huge amount depends upon the rate of change,” says David Autor, an MIT economics professor.

“If this is gradual, it’s not a big deal,” he adds, explaining that if this happens over 15 or 20 years, many drivers should have time to retrain and the economy should be able to absorb them without major problems. “But if this happens overnight, it’s a very big deal.”

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Otto-mated: One of Otto’s self-driving, big-rig trucks leaves the garage for a test drive during a demonstration at the Otto headquarters on August 18, 2016, in San Francisco.

For the moment, this technology still faces

sizable hurdles. It doesn’t work when snow covers lane markers, and there’s considerable worry about what happens if the internet system controlling these cars suddenly crashes.

Government approvals could be delayed for years if there are more fatalities like that of the Tesla test driver who died in May 2016 when a truck cut in front of his self-driving vehicle. To help make sure that driverless vehicles are safe, huge infrastructure spending will be needed, such as installing road signs that communicate with these vehicles and upgrading GPS systems so they are accurate to within a few inches to help self-driving cars stay in their lanes.

The huge outlays needed to finance these infrastructure improvements raise concerns about cost and about fairness. Supporters of driverless cars argue that such cars will help consumers—affluent and non-affluent— because they will in theory be cheaper than using today’s taxis. In some ways, however, the public investment needed to make a nationwide system of driverless cars possible will be a subsidy for affluent families like the Smiths who will be able to afford to use them far more than poorer families. The billions that government spends on infrastructure to make driverless vehicles safe and reliable could crowd out spending for mass transit, hurting less-affluent families who rely on subways, trains, and buses.

Many technology experts say major infrastructure improvements will be needed to ensure that driverless cars are safe. The electronic equipment—sensors, cameras, radar, lasers—that keeps self-driving cars from hitting other cars relies on lane markings to operate, but when there is fog or when snow covers lanes or when there is blinding glare from the sun, those sensors often can’t function. To remedy this problem, there is a push to develop a far more accurate GPS system that can locate vehicles to within four inches—helping keep them in lanes. This upgraded GPS will likely need an expensive, elaborate, and frequently updated mapping of the terrain.

As a further step to ensure safety and guide these cars, industry experts are calling for a new generation of road signs and traffic lights that contain elaborate electronics to communicate with driverless cars—perhaps telling them exactly where the next exit is or warning

of construction ahead or an upcoming lane merger. These infrastructure improvements will be expensive, and one can be sure that the industries rushing to introduce driverless cars will want the government to pay. In the past, the government has paid for GPS satellites and highway signs.

Another infrastructure requirement: The millions of autonomous cars that will eventually be on the road will need to communicate with the cloud, and that will mean significantly expanding the capacities of the cloud. This cost is likely to be borne by companies like Uber, Google, and Ford, and not by taxpayers.

Brauer of Kelley Blue Book has other, nagging fears, among them that computer hackers might sabotage a car’s computer controls. For example, hackers might direct 20 driverless cars on a bridge to suddenly turn right, and they

Without much public debate, the administration gave a fairly bright green light to driverless cars in September 2016, when the Department of Transportation issued guidelines permitting self-driving cars. These guidelines call for driverless cars to meet 15 safety standards and called for the 50 states to develop uniform regulations for these cars. There was no notice of rulemaking, and no formal set of rules.

Under these guidelines, Uber, Google, Ford, and other companies could move ahead in introducing driverless cars onto the roads, without any further federal authorization needed—although the government emphasized that it would look over the companies’ shoulder and intervene if it saw safety problems with this radical new technology. In the event of safety problems arising, the government reserved the right to step in and set stan-

How should driverless cars be regulated?

Their safety is a much bigger deal than airbags or backup cameras. then disastrously plunge off the bridge. Or there might be an unexpected technical glitch that causes five cars to blow through an intersection and take out a group of pedestrians. Such a serious glitch or hacking incident could traumatize the public and cause regulators to delay for years giving needed government permissions.

Brauer sees another obstacle to rolling out this new technology. “A lot of people won’t buy into it on a philosophy and on a trust level,” he says. That creates another challenge—many traditionalists may shun driverless cars and keep on driving their own cars. That could mean big problems meshing the supposedly safer driverless technology with cars driven by often-flawed human beings, some of whom will inevitably drive drunk or carelessly change lanes and crash into a self-driving car in their blind spot.

There is also the big issue of how driverless cars should be regulated. Autonomous cars present an auto-safety issue far more momentous than the battles over airbags or cameras for when one drives in reverse. But in the face of industry eagerness and rapidly changing technology, the Obama administration punted.

dards for some technologies, like electronic sensors, that autonomous cars rely on.

Perhaps predictably, some auto industry executives protested that these guidelines were too strict because they raised the possibility that the government would delay or block some new self-driving technologies if it saw safety problems. Currently, the auto industry self-regulates in introducing new technologies, like automatic braking, under the belief that automakers—not wanting to hurt their image or sales—wouldn’t add a new technology unless they were convinced it was safe. But in light of the industry’s checkered history on safety, some skeptics are calling for greater regulation of self-driving vehicles.

In Claybrook’s view, the Obama administration was far too hasty. “There will be some good actors and some bad actors,” she says.

“The question is whether the public can rely on anything.”

States have asserted some regulatory authority, but that is largely being preempted by Washington. The states will continue to be responsible for inspecting cars and licensing

Spring 2017 The American Prospect 85

drivers and insurance. “The way it’s going to work,” Claybrook says, “if the National Highway Traffic Safety Administration does nothing more, the industry can do whatever it wants on driverless cars. The federal government will have opted out.” And of course the Trump administration is even less likely to intervene.

Trucking presents a paradoxical variation on the theme. Last summer, Michael Belzer, a professor at Wayne State University and one of the nation’s leading academic authorities on the trucking industry, was predicting that self-driving trucks wouldn’t arrive for 20 years. He said in an interview back then, “The technology is just not there.”

But now Belzer says self-driving trucks might arrive in ten years, perhaps sooner. This past October, Uber’s Otto subsidiary caused

What’s going to happen to them? Our tradition in the United States is to hell with these workers and dump them. We get rid of that work, get rid of those jobs, and you, the worker, figure out what to do.”

For now at least, officials with the International Brotherhood of Teamsters aren’t voicing much alarm about the possibility of truck drivers losing jobs. The reason: Teamster officials assert that self-driving trucks will continue to need a driver to help out in case of emergencies, to handle paperwork, to assure the safety of the cargo, to pull a truck into a warehouse. An analogy is aircraft. Planes have had autopilots for generations. Today, aircraft can virtually fly themselves—and do so in bad weather. But despite futuristic projections of pilotless planes, no serious person is pushing to have commercial jetliners without

Where in tax-averse America will we find the money to finance retraining programs to assist six million displaced drivers?

Belzer to shorten his timeframe when an Otto self-driving truck equipped with $30,000 in software and hardware hauled 50,000 cans of Budweiser from Fort Collins to Colorado Springs. With a human driver sitting in the cab as a backup, the truck drove 120 miles on I-25, although the human did get the truck onto the interstate and took over again before the truck exited back onto city streets.

Some experts predict that self-driving trucks will become widespread before selfdriving cars do, because trucking companies are so eager to cut costs and have these expensive vehicles run nearly around the clock. “The trucking industry has a huge interest in not having to pay for drivers,” Claybrook tells me.

For some long-distance trucking trips, companies may cut back from two drivers in the cab to one, and there’s talk of having convoys with two or three trucks, with a driver in the front truck, and one or two autonomous trucks following right behind.

“One of the big questions should be what’s going to happen to this workforce,” Belzer adds. “A lot of these drivers voted for Trump.

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human crews capable of taking the controls.

Kara Deniz, a Teamsters spokesperson, says, “We don’t see anything indicating that these vehicles will be able to function in real-life conditions, go long distances, especially through a city environment, without a human being. You hear these doomsday scenarios about jobs, but there are so many questions that still need to be addressed, like not knowing the reliability and safety, and then there are hacking issues.”

Sam Loesche, a Teamsters lobbyist, adds, “We have not seen a situation where any responsible operator would agree that there’s a role for this technology without an operator in the cab. Our view is [that] the best piece of safety technology is the driver.”

While insisting that drivers will continue to be needed, Loesche switches gears and says that in any conversation about self-driving vehicles, “workers’ jobs need to be a top issue.”

He adds, “You can’t have the number of job losses you did in other industries and not see a role for policymakers and the government.”

The main industry group, the American Trucking Associations, shares some of the

Teamsters’ views. Pointing to issues like hazardous cargo, driving in cities, and interacting with warehouses and stores receiving merchandise, Chris Spear, the association’s president, told a federal transportation panel in January that ATA believes drivers “will retain an important role in trucking for the foreseeable future, even with automated trucks, just as pilots are still present in airline cockpits.”

Kalanick, Uber’s CEO, has a surprisingly optimistic—though somewhat self-contradicting—take on what driverless technology will mean for jobs. He says that in years to come, Uber will offer a mix of rides, some provided by drivers, some by self-driving cars. Kalanick foresees skyrocketing demand for improved transportation and says this would mean a continued need for drivers—for instance, to help many disabled or elderly passengers in and out of vehicles.

“Many people predicted that the ATM would spell doom for bank tellers,” Kalanick says. “In fact, ATMs cut the cost of running a local bank so more branches opened, employing more people.” Kalanick adds, “Self-driving Ubers, for example, will be on the road 24 hours a day, which means they’ll need a lot more human maintenance than cars today.”

Numerous corporations stand to make

a fortune from this new technology, and many consumers will benefit, too. “Well-funded companies see a lot of potential revenues at the end of this rainbow, and they all want to get there first,” says Brauer of Kelley Blue Book.

“There’s lots of money to be made producing the cars, controlling them, managing their data systems, and collecting information about passengers. Companies will know when he’s going, where he’s going, what he’s doing. Talk about opportunities for targeted advertising.”

Once autonomous cars become popular, Brauer adds, “there will be an explosion of new business models with billions of dollars up for grabs.” With driverless cars, Uber and Lyft won’t have hard-working drivers keeping 60 percent to 80 percent of the fares. Instead, Uber and Lyft will keep the lion’s share of fares, although some might go to taxes and fees and some might go to Google or whichever company runs the driverless cars’ data systems. “Their business model would go from having huge profit poten-

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tial to having massive profit potential,” Brauer says. “The fight over whether the drivers are independent contractors or employees and the related litigation, all that goes away. It becomes an extremely desirable business model.”

In their book, Driverless: Intelligent Cars and the Road Ahead, Hod Lipson and Melba Kurman point to another problematic effect of driverless cars—companies and their shareholders will grow richer as drivers grow poorer.

“As machines take away human jobs,” they write, “one potentially devastating effect will be to further exacerbate the trend toward inequality, a growing global problem.”

MIT ’s Brynjolfsson argues that we as a nation should make sure we find a way to share this prosperity and progress with the displaced drivers. The most important step, he said, will be to provide first-class retraining for them. Many economists say bigger and better retraining programs will be the key, even though the nation’s retraining programs have a less-than-stellar history because they often train unemployed workers for fields where there aren’t enough job openings.

Help for laid-off drivers can take many other forms, perhaps including something akin to the trade adjustment assistance received by factory workers who lose their jobs to imports.

A beefed-up version would be desirable, because trade adjustment assistance has often been underfunded and has not done enough to support and retrain laid-off workers. Harvard’s Lawrence Katz offers several other suggestions: wage subsidies, an increased earned income tax credit, and, if need be, a government-backed public jobs program. (That last idea is anathema to conservatives.)

A big question is where we, in tax-averse America, would find the money to finance programs to assist displaced drivers. One option would be to impose a tax on self-driving vehicles—perhaps a tax on every mile traveled. At some point, Congress could step in and tell the many corporations eager to introduce—and cash in on—this technology that it will agree to a nationwide green light for all 50 states on one condition: that it enacts a law creating a special per-mile tax to finance programs that aid and retrain displaced drivers.

“Even though this may not lead to mass dislocation,” Autor says, “it may further constrict the

set of opportunities for people who don’t have specialized skills. Not to say that driving doesn’t require specialized skills, but it’s not up there with engineers or computer programmers.”

Autor sees demand for skilled construction workers, skilled medical technicians, and skilled repairmen as opportunities for displaced drivers. As for those who do not retrain and develop special skills, Autor says, they might have to turn to lower-paying jobs

Uber-menschen: Uber’s Travis Kalanick with Anthony Levandowski of Otto

as home health aides, security guards, or food service or cleaning workers.

Brynjolfsson believes laid-off drivers should be retrained for many “different kinds of jobs and industries.” Many could be trained for sales or marketing jobs, he says, adding that there are huge unmet needs, in particular, in health care and other nurturing and caring jobs. But, he acknowledges, “a lot of truck drivers aren’t going to find much of this appealing.

It will be a rough transition.”

America’s retraining programs have often fallen short because they failed to place workers in jobs after months or years of retraining—

often because the programs ignored whether there were opportunities in the fields for which laid-off workers were being trained. While education—whether obtaining vocational training or associate’s or bachelor’s degrees—would of course help laid-off drivers, it could prove frustrating if there aren’t enough jobs out there.

An ambitious program to address the nation’s urgent infrastructure problems is badly needed, and that could create a million or more construction jobs, as well as long-term jobs maintaining and operating all manner of “smart” infrastructure systems, not to mention the newfangled auto repair stations and parking lots that will be needed for company-owned fleets of driverless cars. The nation’s renewed focus on preserving and creating factory jobs could also provide valuable opportunities for laid-off drivers. And it is of course important to strive for a full-employment, higher-wage economy that offers job opportunities not just for laidoff drivers, but for everyone. This is a long-term planning challenge that goes well beyond the question of how to re-employ the upcoming wave of displaced drivers.

No one should expect a seamless transition for the many drivers whose jobs get run over by driverless technology. That’s where wage subsidies, earned income tax credits, extended unemployment insurance, and some form of adjustment assistance might come into play. Some advocates argue that universal basic income would be an ideal program for drivers thrown out of work and having a hellish time finding another job.

But most drivers are eager to work and probably won’t want to just get by on a modest UBI. The development of driverless cars is a perfect opportunity for some smart public policy.

We as a nation have years to plan, and there will be a rich revenue stream to draw from.

Let’s hope that we, the world’s richest nation, adopt some smart, foresighted policies so that millions of drivers don’t get banged up in a head-on collision when this radical new technology takes the road.

Steven Greenhouse was a reporter at The New York Times for 31 years and was its labor and workplace reporter from 1995 to 2014. He is author of The Big Squeeze: Tough Times for the American Worker and is writing a book on the state of—and future of—America’s workers.

Spring 2017 The American Prospect 87

The Hidden

that Raise Drug Prices

How pharmacy benefit managers morphed from processors to predators B y Dav id Day en

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gem photogr aphy / istock by get t y

R Monopolies

ob Frankil of Sellersville, Pennsylvania, followed his father into the family business after college. “My entire life,” he said, “I’ve been involved with managing and owning independent pharmacies.”

He now owns two stores, a traditional community pharmacy and another that caters to long-term care facilities.

Like any retail outlet, Frankil purchases inventory from a wholesale distributor and sells it to customers at a small markup. But unlike butchers or hardware store owners, pharmacists have no idea how much money they’ll make on a sale until the moment they sell it. That’s because the customer’s co-pay doesn’t cover the cost of the drug. Instead, a byzantine reimbursement process determines Frankil’s fee.

“I get a prescription, type in the data, click send, and I’m told I’m getting a dollar or two,” Frankil says. The system resembles the pull of a slot machine: Sometimes you win and sometimes you lose. “Pharmacies sell prescriptions at significant losses,” he adds. “So what do I do? Fill the prescription and lose money, or don’t fill it and lose customers? These decisions happen every single day.”

Frankil’s troubles cannot be traced back to insurers or drug companies, the usual suspects that most people deem responsible for raising costs in the health-care system. He blames a collection of powerful corporations known as pharmacy benefit managers, or PBMs. If you have drug coverage as part of your health plan, you are likely to carry a card with the name of a PBM on it. These middlemen manage prescription drug benefits for health plans, contracting with drug manufacturers and pharmacies in a multi-sided market. Over the past 30 years, PBMs have evolved from paper-pushers to significant controllers of the drug pricing system, a black box understood by almost no one. Lack of transparency, unjustifiable fees, and massive market consolidations have made PBMs among the most profitable corporations you’ve never heard about.

Americans pay the highest health-care prices in the world, including the highest for drugs, medical devices, and other health-care services and products. Our fragmented system produces many opportunities for excessive charges.

But one lesser-known reason for those high prices is the stranglehold that a few giant inter-

mediaries have secured over distribution. The antitrust laws are supposed to provide protection against just this kind of concentrated economic power. But in one area after another in today’s economy, federal antitrust authorities and the courts have failed to intervene. In this case, PBMs are sucking money out of the healthcare system—and our wallets—with hardly any public awareness of what they are doing.

Even some Republicans criticize PBMs for pursuing profit at the public’s expense. “They show no interest in playing fair, no interest in the end user,” says Representative Doug Collins of Georgia, one of the industry’s loudest critics.

“They act as monopolistic terrorists on this market.” Collins and a bipartisan group in Congress want to rein in the PBM industry, setting up a titanic battle between competing corporate interests. The question is whether President Donald Trump will join that effort to fulfill his frequent promises to bring down drug prices.

How the PBMs Take Your Money PBMs were formed in the late 1960s, initially

to help with claims processing. As insurance plans started to offer prescription drug benefits, PBMs filled out paperwork, making sure reimbursements were passed along to pharmacies. And for a while, they really did provide a service, as one of the first health-care players to fully computerize claims-processing. This made the system more efficient and enhanced the fledgling industry’s credibility.

Over time, PBMs presented themselves as a cost-reducer. By aggregating customers of health-plan sponsors—insurance companies, big employers that self-insure, unions, state and federal employee plans, even Medicare and Medicaid—PBMs could form large patient networks, and negotiate discounts from both drug companies and pharmacies, which would have no choice but to contract with them to access the network. The savings would consequently pass through to plans and their patients. It sounded great.

This approach can work, when it truly represents what John Kenneth Galbraith termed countervailing power—when one large economic force counteracts another and prevents excessive advantage. But when one source of private power becomes the new monopolist, the idea backfires. A monopolist armed with

state power and committed to serving the public interest—such as the VA’s power to negotiate drug prices—is a very different story.

In the case of PBMs, their desire for larger patient networks created incentives for their own consolidation, promoting their market dominance as a means to attract customers.

Today’s “big three” PBMs—Express Scripts, CVS Caremark, and OptumRx, a division of large insurer UnitedHealth Group—control between 75 percent and 80 percent of the mar-

PBMs have evolved from paper pushers to significant controllers of the drug pricing system, a black box understood by almost no one. ket, which translates into 180 million prescription drug customers. All three companies are listed in the top 22 of the Fortune 500, and as of 2013, a JPMorgan analyst estimated total PBM revenues at more than $250 billion.

The Pharmaceutical Care Management Association, the industry’s lobbying group, claims that PBMs will save health plans $654 billion over the next decade. But we do know that PBMs haven’t exactly arrested skyrocketing drug prices. According to data from the Centers for Medicare and Medicaid Services, between 1987 and 2014, expenditures on prescription drugs have jumped 1,100 percent.

Numerous factors can explain that—increased volume of medications, more usage of brandname drugs, price-gouging by drug companies.

But PBM profit margins have been growing as well. For example, according to one report, Express Scripts’ adjusted profit per prescription has increased 500 percent since 2003, and earnings per adjusted claim for the nation’s largest PBM went from $3.87 in 2012 to $5.16 in 2016. That translates into billions of dollars

skimmed into Express Scripts’ coffers, coming not out of the pockets of big drug companies or insurers, but of the remaining independent retail druggists—and consumers.

Why haven’t PBMs fulfilled their promise as a cost inhibitor? The biggest reason experts cite is an information advantage in the complex pharmaceutical supply chain. At a hearing last year about the EpiPen, a simple shot to relieve symptoms of food allergies, Heather Bresch, CEO of EpiPen manufacturer Mylan, released a chart claiming that more than half of the list price for the product ($334 out of the $608 for a two-pack) goes to other participants—insurers, wholesalers, retailers, or the PBM. But when asked by Republican Representative Buddy Carter of Georgia, the only pharmacist in Congress, how much the PBM receives, Bresch replied, “I don’t specifically know the breakdown.” Carter nodded his head and said, “Nor do I and I’m the pharmacist. …

That’s the problem, nobody knows.”

This lack of transparency enables PBMs to enjoy multiple hidden revenue streams from every other player. “It’s OK to have intermediaries, we have Visa,” says David Balto, an antitrust litigator and former top official with the Federal Trade Commission. “But these companies make a fabulous amount of money, even though they’re not buying the drug, not producing the drug, not putting themselves at risk.”

The PBM industry is rife with conflicts of interest and kickbacks. For example, PBMs secure rebates from drug companies as a condition of putting their products on the formulary, the list of reimbursable drugs for their network. However, they are under no obligation to disclose those rebates to health plans, or pass them along. Sometimes PBMs call them something other than rebates, using semantics to hold onto the cash. Health plans have no way to obtain drug-by-drug cost information to know if they’re getting the full discount.

Controlling the formulary gives PBMs a crucial point of leverage over the system. Express Scripts and CVS Caremark have used it to exclude hundreds of drugs, while preferring other therapeutic treatments. (This can result in patients getting locked out of their medications without an emergency exemption.) And there are indications that PBMs place drugs on their formularies based on how high a rebate

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drugs are so much more expensive). PBMs reimburse pharmacies for generics based on a schedule called the maximum allowable cost (MAC).

But the actual number is hidden until the point of sale. “The contracts are written in the form of algorithms,” says Lynn Quincy, director of the Healthcare Value Hub for Consumers Union.

“It’s not a list of drugs with a price next to it.

Nobody knows what they’re up to.”

The MAC list that goes to the pharmacy does not necessarily match the one for the health plan. By charging the plan sponsor more than they pay the pharmacy in a reimbursement, PBMs can make anywhere from $5 to $200 per prescription, without either player in the

pharmacists say those are routinely denied, and almost never retroactively reimbursed. “One of my colleagues said if you went on Shark Tank and proposed this idea they’d laugh at you,” says pharmacist Frankil. “They underpay you and you can’t do anything about it? It’s insane.”

PBMs can also charge pharmacies additional fees months after a sale. Direct and indirect remuneration (DIR) fees were originally conceived as a way for Medicare to discover the true net cost of the drugs Medicare beneficiaries purchased through Part D, by forcing disclosure of all rebates from drug manufacturers. But PBMs secured a key loophole keeping their disclosures to the federal government

On Speed: The CVS Caremark merger creates overwhelming market power.

chain knowing. While some spread pricing can be expected, the opacity of the profit stream masks the allegedly low costs PBMs tout to health plans to get them to sign up.

Marketplace conditions frequently change, which can result in large spikes in the prices of generic drugs. But in what can only be described as deliberate laziness, the PBM often does not respond by altering the price on their MAC list, pocketing an even bigger spread. Pharmacies can lose hundreds of dollars on a generic prescription overnight. They can appeal to the PBM for paying a below-cost reimbursement, but

confidential, while arguing that DIR s also legally apply to pharmacies.

In theory, DIR fees deliver higher reimbursement rates to pharmacies that display better performance. But, as Frankil explains, druggists have little control over the outcomes that affect reimbursement. Pharmacies get rated partly on whether their customers stay on their medications. “I can’t stop by your house and say take your pill every day,” Frankil says. “We have strategies, but we’re at the mercy of the customers.” Another rating involves ensuring diabetics take medications to modulate their

c o a s t-t o - c o a s t / i s t o c k b y g e t t y

they obtain, rather than the lowest cost or what is most effective for the patient.

“Let’s say there are two drugs in the same therapeutic category—one for $500 and one for $350,” says Linda Cahn, an attorney and founder of Pharmacy Benefit Consultants, which helps health plans negotiate contracts with PBMs. “Which manufacturer can promise more rebates? Obviously the one with the $500 drug.” And because drug companies establish their own prices, they can use a higher ceiling to give more in rebates to get on PBM formularies.

This practice creates incentives for drug manufacturers to raise prices, and if the PBMs keep the rebates, the health plan pays more. Even if the rebates offset the list price, they are used to determine patient co-pays, so the consumer feels the burden from an increase in price that might otherwise never have taken place.

Indeed, the very existence of consultants such as Cahn suggests another cost driver.

PBMs themselves are intended to save costs.

But now, PBM abuses require additional layers of consultants to limit mischief.

The Justice Department has fined Medco and Express Scripts for receiving kickbacks from manufacturers to steer patients to higher-cost products, a process known as drug switching. “Look at a drug like [acid reflux medication] Nexium,” says Susan Hayes, an industry consultant with Pharmacy Outcomes Specialists, a firm that audits PBMs and negotiates for health plans. “[PBMs] allowed it to stay as a covered drug, even though there was an over-the-counter pill available. They preferred a brand name over an OTC that was 1/100th the cost.” AstraZeneca admitted in 2015 to giving kickbacks to PBMs to keep Nexium in their formularies, paying the government $7.9 million.

Additionally, The Columbus Dispatch explained last October how, in some cases, a consumer’s co-pay costs more than the price of the drug outside the health plan. But the pharmacy is barred from informing the patients because of clauses in their PBM contracts; they can only provide the information when asked.

The excess co-pay goes back to the PBM. Game-playing with brand-name drugs pales in comparison to more profitable schemes for generics, which represent the vast majority of filled prescriptions (though they account for only about half of the revenues, since brand-name

blood pressure, meaning Frankil has to call doctors to get them to prescribe the drugs.

“Can you imagine how that call goes? The doctor says, ‘Are you the doctor?’”

Lower performance ratings result in higher DIR fees, which the PBM takes out of pharmacies’ reimbursement checks every quarter. A recent report from the Community Oncology Alliance estimates that DIR fees can amount to as high as a 9 percent tax on gross revenues, which cuts pharmacy profits by up to 50 percent on a single prescription. Uncertainty over the size of DIR fees means pharmacies cannot assess their profit margins. “It’s impossible to operate a business when you don’t know when the other shoe is going to drop,” says John Norton of the National Community Pharmacists Association (NCPA), which represents 22,000 independent pharmacies.

The PBM s’ use of these fees also harms patients and taxpayers. Consumers pay copays or deductibles for drugs based on the list price, without DIR fees or rebates that would lower them. And retroactive DIR fees are routinely not reported to Medicare, as PBMs call them “network variable rates” or “pharmacy performance payments” and keep them for themselves. Obscuring DIR fees makes the net costs of drugs look higher to Medicare than they actually are. As a result, patients hit the “donut hole” coverage gap in Medicare Part D faster, forcing them to pay the full cost of their drugs. And it accelerates high-usage patients into catastrophic coverage faster as well, where Medicare pays 80 percent of all costs. All of this leaves subscribers and Medicare, i.e. the taxpayers, to pay more out of pocket, as the Center for Medicare and Medicaid Services noted in a January report.

The question begging to be asked is why all the players in the market—plan sponsors, drug companies, and pharmacies—put up with a middleman that extracts profits from all of them? And the answer is the failure of federal antitrust policy.

The Abuses that Antitrust Missed The first time PBMs tried to integrate with

another part of the drug supply chain, the government took notice. A series of mergers in the 1990s put drug manufacturers Merck, Eli Lilly, and SmithKline Beecham in control of

the most powerful PBMs. The drug companies could then view competitors’ pricing information and place their own drugs over their rivals’ on PBM formularies. “That raised eyebrows,” says attorney Linda Cahn. “It’s such a conflict of interest. Obviously, the PBMs were unlikely to negotiate aggressive terms with their manufacturer parent companies.”

In 1997, Cahn filed class-action lawsuits against the two largest PBMs in America, Medco (then in the hands of Merck) and PCS Health

With their monopoly power, PBMs offer independent pharmacies take-it-or-leave-it contracts, with no opportunity to negotiate.

Systems (part of Eli Lilly), for breaching their fiduciary duty to employee health plans and increasing drug costs. The high-profile cases motivated the Federal Trade Commission (FTC) to crack down on the PBM/drug company alliance. After a series of settlements that removed the benefits of the vertical integration by requiring decisions on drug formularies to be delegated to an independent third party, Lilly, SmithKline, and Merck all sold their PBMs. But although the antitrust laws initially worked, PBMs kept consolidating, insisting that gaining market share would produce benefits for consumers. And this time, the FTC kept their hands off. SmithKline sold their PBM, Diversified Pharmaceutical Services, to Express Scripts in 1999. PCS got bought by Advance Paradigm in 2000, and the new company became part of Caremark in 2003. And then, Caremark found a buyer in 2007— CVS, one of the nation’s largest pharmacy chains.

The Bush-era FTC barely blinked at this vertical combination of PBM and pharmacy.

“That was the first unholy union,” says

consultant Susan Hayes. Caremark steered its giant patient network toward CVS stores, through lower co-pays or out-of-network bans.

They also got to see all the information in CVS’s other PBM deals, using the data to underprice rivals. CVS prescription revenue from Caremark plans nearly tripled in the seven years after the merger.

Other PBMs got the message. They started their own specialty and mail-order pharmacies, mirroring the CVS Caremark model. And they consolidated as well. In 2012, Express Scripts and Medco, two of the three largest PBMs, announced a $29 billion merger. Julie Brill was one of five FTC commissioners at the time. “I said, ‘I need to understand the competitive justification,’” Brill says. “‘My understanding from your papers is you don’t need to get any bigger.’ And they said, ‘That’s right. We’re not making the argument that this merger is necessary to allow us to gain efficiencies of scale.’”

But despite the lack of justification for the consolidation, the danger of higher prices, and the unusually large congressional opposition, the FTC approved the merger. Brill was the only dissenting vote. “I thought it was wishful thinking and not smart economic analysis,” she says.

Three years later, Optum gobbled up Catamaran, creating the current situation where three firms control 80 percent of the market. Brill adds that the Big Three carve up the market geographically, effectively not competing in certain regions of the country. Amid such concentration, plan sponsors have little ability to select the best PBM on price or quality. “I just sat down with [one of the Big Three PBMs], I had half a billion dollars on the table,” says Susan Hayes. “They said, ‘Where are you going to compromise?’

Really? Where else do I bring half a billion and they say where will you compromise?”

With such monopolized control, PBMs offer pharmacies take-it-or-leave-it contracts, with no opportunity to negotiate. These contracts employ punitive terms, including allowing the PBM to audit pharmacies, allegedly to ferret out waste, fraud, and abuse. “Minor technicalities are used to extract money,” says Susan Pilch, vice president of policy and regulatory affairs for the NCPA . “There are examples where you were supposed to initial on the bottom right of prescription, not the bottom left.

The PBM recouped all claims on that.”

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Besides being a business partner, the PBM is also a competitor that can use all the pharmacy’s data against it. PBMs set up “preferred pharmacy networks” that give patients lower co-pays for using particular locations. Last year, 85 percent of all Medicare Part D plans used preferred networks, which often benefit large pharmacy chains that can afford to make deals for network access, like CVS Caremark. Specialty pharmacies report being frozen out by Express Scripts and other PBMs, with customers granted access only to its in-house specialty provider, Accredo. This practice has led to seven specialty pharmacy lawsuits against PBMs in the last year.

PBMs also aggressively steer patients to their mail-order pharmacies. Customers get constant solicitations by phone or mail, enticing them to use “Amazon-style home delivery,” offering lower co-pays or larger supplies per order. “They take a customer list and solicit the customers while they’re purchasing a prescription,” says Representative Doug Collins. This persistent poaching has worked; a 2017 report from Drug Channels Institute found that PBMowned pharmacies represented 46 percent of the industry’s revenue growth last year.

Though PBM s challenge pharmacies to maintain customer compliance with prescription drugs, steering customers to mail-order pharmacies where they get no direction or personal contact can produce the opposite result.

A 2013 study on patient adherence found that “personal connection with a pharmacy or pharmacy staff” was one of the most important variables for taking medications.

In addition, mail-order pharmacies often auto-ship drug shipments before patients run out, and on a chronic prescription, the drugs pile up. The NCPA has documented dozens of examples of pill waste, disposed after a patients’ death or when their doctor discontinues the treatment. People have brought in tens of thousands of dollars in unused meds, which often must be thrown away. That unnecessarily jacks up health-care costs, but the PBM profits on each pill shipped through its pharmacies.

PBMs aggressively steer patients to their mail-order subsidiaries, undercutting face-to-face communication with pharmacists.

Other pharmacies have little recourse to fight back. PBM contracts frequently contain gag orders, preventing them from talking to local elected officials or disclosing the terms of the contract. Pharmacists complain of being threatened for mailing or delivering drugs to local patients, which would compete with

PBM mail-order operations. The combined

toll makes it difficult for independent pharmacies to stay in business. “This takes away a medical provider patients have used for years,” said Representative Buddy Carter. “I’ve had grandparents come to my store in tears and say ‘I can’t come here anymore.’”

Mergers Beget More Mergers

Chain stores have turned to defensive consolidation to stay in the game. In October 2015, Walgreens and Rite Aid, two of the three largest drugstore chains (CVS is the other), announced plans to merge. Walgreens has explicitly said that acquiring a handful of PBMs bundled inside Rite Aid will enable them to better compete with CVS Caremark. “It’s the same story we’ve seen in so many industries, companies justifying their marriage on the basis of another company in the market with lots of power. It’s an arms race,” says Stacy Mitchell of the Institute for Local Self-Reliance. In the wake of the announcement, Walgreens inked lucrative new partnerships with Express Scripts and Optum, CVS Caremark’s biggest rivals. The merger deal remains under review by the FTC. Independent pharmacies don’t have the luxury of using mergers to offset the PBM power imbalance. In fact, when states proposed letting independents form their own pharmacy networks, the FTC argued against it, warning that it would “impair the ability of prescription drug plans to negotiate the best prices with pharmacies.”

Fewer independent pharmacies, especially

The War on Facts Hits Prescription Drug Regulation

The FDA’s authority was under legal attack even before Trump. Now the agency faces a triple threat.

By Jerry Avorn

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egimens of “regulatory relief” have begun to course through Washington’s veins, to treat a presumed diagnosis of severe governmental constipation. President Donald Trump has vowed to purge “over 75 percent” of the regulations governing the approval and manufacture of prescription drugs.

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His nominee for commissioner of the Food and Drug Administration, Scott Gottlieb, a physician at the American Enterprise Institute, has argued that many of the current requirements that oblige manufacturers to demonstrate that their drugs are safe and effective represent excessive big-government

impositions on the creative élan of pharmaceutical manufacturers.

Two other worrisome developments in these directions predate the election and are likely to further transform the medications landscape. The first is a legal movement to undercut the FDA’s authority to regulate drugmakers’

marketing claims. The second is legislation passed by Congress in December and signed by Barack Obama that could diminish the rigor of clinical trials needed to demonstrate the safety and efficacy of drugs in patients. These developments and the advent of the Trump presidency pose a triple threat to the protection of patients’ interests and the public health.

The legal movement against the regulation of drug marketing is based on a claim that the FDA

pure r adiance photo / istock by get t y

in rural areas without alternatives, not only weakens local economies and prevents skilled professionals from using their talents. It also significantly degrades the health-care safety net. Rural pharmacies are places to consult face-to-face with a health-care professional, to check blood pressure, to get advice. If someone’s only option to get prescriptions filled is 50 miles up the road or by mail, they might not bother to seek the advice.

Worst of all, PBMs don’t stop at legal moneymaking schemes. At his site PBM Watch, attorney David Balto compiled 56 pages’ worth of state and federal litigation against PBMs. Just a handful of these cases yielded $370 million in damages for undisclosed rebates, artificial price inflations, kickbacks, steering, and other deceptive practices.

Last year, Anthem sued Express Scripts for $15 billion, claiming the PBM violated their agreement by charging excessive rates for drugs. Federal agents from two states issued subpoenas for Express Scripts last fall, seeking information on the company’s business practices. In January, diabetes patients sued three drug manufacturers for conspiring with PBMs to triple the price of insulin.

PBM s may even have contributed to the worst public health crisis in America—the opioid epidemic. An investigation by Stat News found that Purdue Pharma, makers of OxyContin, paid off PBMs to keep prescriptions flowing for their product, over the howls of a state employee health plan in West Virginia. In exchange for rebates, PBMs kept OxyContin on

violates a company’s rights of “commercial free speech” when it prohibits marketing statements that fail to meet the agency’s standards of scientific accuracy. Before 2011, the constitutionality of federal regulation of commercial claims about drugs was no more in question than the regulation of drugs themselves.

The justification for that regulation has been clear. Even physicians are in a poor position to evaluate commercial claims about drugs. The terabytes of clinical and pharmaco-

Pushers: Makers of OxyContin paid PBMs to keep prescriptions flowing.

their formulary with low co-pays, and without requiring prior authorization from the health plan to dispense the drug. Overprescribing of OxyContin laid the groundwork for a crisis that killed more than 20,000 Americans in 2015.

“They were making a profit on people’s addiction, which is fricking criminal,” says consultant Susan Hayes. “Rubbing their hands with glee that people are becoming addicted to opioids. I can’t believe it.”

An Rx for Drug Pricing?

Amid frustration on all sides of the market, some private-sector actors are attempting to break the PBM stranglehold. A group of 20 large employers representing four million

logical data provided to the FDA by manufacturers for all new drugs are too complex for individual doctors or patients to evaluate adequately.

Some of that data, moreover, is owned by the pharmaceutical company, and no one outside the FDA is permitted to see it. Stripping the FDA of authority to regulate pharmaceutical claims for accuracy deprives the public of a basic protection.

Nonetheless, that is exactly what is happening. In 2011, a federal appeals court invoked the First

patients, including Coca-Cola, Marriott, and Verizon, have formed the Health Transformation Alliance, seeking to break away from the “patchwork of complicated, expensive, and wasteful systems” in modern health care, including the pharmaceutical supply chain.

The alliance has expressed interest in a “transparent PBM” model, which takes a flat administrative fee on each prescription, with all rebates and discounts fully disclosed and no hidden spreads. Transparent PBMs only have a sliver of the market, but they can get results: A hospital nonprofit network named Meridian Health Systems claimed to Fortune magazine that a transparent PBM saved it $2 million in the first year, about one-sixth of its total drug costs.

But many employers don’t know enough about the system to go outside the Big Three, says Susan Hayes. “They’re trying to manage something they don’t understand. If you put blinders on, and hire one of the Big Three, you won’t get in trouble with the boss.”

Another model would empower pharmacies. A 2016 report from the Institute for Local Self-Reliance highlights a quirk of law in North Dakota, which only allows drugstores to operate if owned by pharmacists (similar laws exist in Europe). The law prohibits chain pharmacies from entering the state. Not surprisingly, North Dakota’s independents deliver among the lowest prescription drug prices in the country, along with better health outcomes and more drugstores per capita than any other state. This flies in the face of industry claims

Amendment in overturning the conviction of a pharmaceutical sales representative who had told doctors that an obscure neurological drug also worked for chronic pain, fibromyalgia, and chronic fatigue syndrome.

None of those uses had been demonstrated to the FDA’s satisfaction, and the drug had not been approved for those purposes. The FDA , however, did not appeal the decision, apparently fearing that it could lose in the Roberts Supreme Court.

The assault on the FDA’s author-

ity over promotional statements has continued. Last year, the agency settled with a tiny Ireland-based drugmaker that insisted on its right to promote its only product, a fishoil derivative, on the basis of an unproven claim that it is useful for lowering moderately high blood triglycerides to prevent heart disease.

The FDA , by now in active retreat, sent a conciliatory letter to the manufacturer saying the company could do pretty much what it wanted. If the trend continues—and

Spring 2017 The American Prospect 93

that big chains and giant conglomerates save consumers money or improve services.

Why can’t this successful model be replicated elsewhere? “The answer is PBMs,” says Stacy Mitchell, the report’s author. “Because in North Dakota, independents are the only game in town, PBMs have to negotiate with them. In other states, they have no leverage.” Unsurprisingly, PBMs and chains want the North Dakota law overturned rather than adopted in other states.

For a more immediate impact, we must turn to Washington. And there, solutions often emerge when one large industry starts pointing the finger at another. Under fire for their many drug-pricing scandals, from Martin Shkreli to Valeant, the pharmaceutical industry has tried to deflect blame by citing PBMs. GlaxoSmithKline CEO Andrew Witty said in a February conference call that so much of the list price on the company’s drugs went to “noninnovators in a system which thinks it’s paying high prices for innovation,” a veiled reference to PBMs. An industry-funded report in January asserted that manufacturers took only 63 percent of gross drug revenues, attributing the decline to discounts and rebates paid to PBMs. (Of course, this hasn’t stopped pharmaceutical companies from earning higher profit margins than any other industry.)

For their part, PBMs insist that drug prices would be even higher without them, arguing that they deliver broad access to medications and 90 percent customer satisfaction rates.

But in an industry-on-industry arms race,

under Trump it probably will—the door will open wider to unfettered pronouncements by manufacturers about the purported benefits and safety of their drugs.

Yet another pre-Trump development weakening drug regulation is the 21st Century Cures Act, passed by Congress and signed

by President Obama in December.

Based on the erroneous proposition that the FDA has an unacceptably sluggish transit time for new drug approval (it’s actually impressively

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the millions of dollars that leading PBMs and their trade groups spend each year on lobbying would be no match for the pharmaceutical industry. That creates opportunities for longtime PBM opponents in Washington, which include several Republicans representing rural districts, where independent pharmacies are getting crushed.

Doug Collins, a third-term House member, experienced the PBM issue personally, when his mother couldn’t get her regular medica-

North Dakota, which requires pharmacies to be owned by druggists, has the nation’s most efficient drugstore industry. tions and her plan had no substitute on the formulary. “I am a free-market person, as conservative as they come,” Collins says. “When dealing with this, it’s not a free market.” Buddy Carter, his colleague, has worked in independent pharmacies since 1980, and sees himself as their voice in Congress. I asked him if he had

rapid), the law instructs the agency to rely more on a new medication’s capacity to bring about changes in laboratory tests and other “biomarkers” as evidence that a drug works, rather than requiring controlled clinical trials to demonstrate improved outcomes for patients. In the hands of a new FDA commissioner bent on regulatory relief, the “Cures” act could open the floodgates to more prescription drugs coming to market without evidence that they make patients healthier.

difficulty explaining the PBM market and its problems to his colleagues. “Heck, it’s difficult for me to understand and I’ve worked in the industry over 35 years!” Carter says.

Watch some hearing soundbites from these two and you’d think you’re seeing the second coming of William Jennings Bryan. “Who will my folks in my district of Georgia call, when they need someone at night and their local pharmacist is the one they trust?” Collins asked two PBM representatives in 2015. “They’re going to try and find their local pharmacist, who has been closed because of the anti-competitive nature of this field.” Carter grilled top PBM lobbyist Mark Merritt in 2016: “I notice that the profits of the PBMs have increased enormously over the past few years. In fact, almost doubled.

And I find that very disturbing.” These are conservative Republicans!

What can Congress do to reform PBMs? More than 20 states have passed laws to require more frequent MAC list updates, so PBMs can’t drag their feet and generate large pricing spreads. But PBMs started to circumvent the laws, in one case by eliminating the term “maximum allowable cost” from contracts. Collins’s bill, the MAC Transparency Act, would take care of this at a federal level, to stop the game-playing.

Other bills in the House and Senate would prohibit retroactive DIR fees on Medicare Part D plans, stopping the after-the-fact clawbacks on pharmacy reimbursements. A separate bill would allow any willing pharmacy to participate in a PBM’s preferred pharmacy networks

In the coming year, the interplay of these developments linking the courts, Congress, and a new executive branch will bring agita to physicians, patients, and insurers alike. Sales pitches by prescription drugmakers have often been glitzy and over-hyped, but until now they at least had to satisfy the FDA’s high standards for scientific accuracy. Now, commercial free-speech rights may be invoked to give a pass to most statements a company chooses to make, even if there

is no more than a grain of “truthiness” to them. At the same time, congressionally mandated looser criteria for FDA drug approval could undercut the agency’s longestablished status as the internationally respected guarantor of drug effectiveness and safety. The new administration could well be forcing new products through the evaluation pipeline at a trot, before prescribers, payers, and patients get a chance to digest the necessary data on their effects.

if they agree to the terms, increasing access in communities without chains. All of these bills would add transparency to the system, and reduce the incentives to constantly jack up prices. And they all have bipartisan cosponsors.

Outside of the legislative arena, the FTC also has tremendous power to fix the prescription drug market by applying the antitrust laws. “I think it’s up to the regulators looking at the competition issues around PBMs to put their money where their mouth was,” says former FTC Commissioner Brill. “You said everything was going to be fine. Show us if you were right.”

If the FTC determined that the PBM market was anti-competitive, they could sever the relationship between PBMs and pharmacies through sanctions or divestiture demands.

They could even break up the entire industry to generate competition. And the FTC has the power to demand the very transparency members of Congress and state legislatures believe is the key to ending profiteering. But this would require a radical shift at the FTC, which has often opposed state legislation to regulate PBMs or increase transparency. “The FTC had argued now for over ten years that lack of transparency is necessary because it can drive prices down,” says Brill, citing recent FTC statements. “Prices have not been driven down, and we need to take a different route.”

The wild card in all this is Donald Trump.

At his one and only pre-inauguration press conference, Trump singled out drug companies for “getting away with murder,” vowing to create “new bidding procedures” for Medicare and

During the presidential campaign, Trump said he would bring down the prices Americans pay for drugs—the highest in the world— but no movement in this direction is evident yet. The dismantling of the Affordable Care Act would make drugs even less affordable and lead to tragic, preventable, and costly clinical consequences for patients who need them.

Some countermeasures are available to both professionals and the public at large. We will all need to

earning praise from the likes of Bernie Sanders. But when Trump met with pharmaceutical executives two weeks into his presidency, he focused more on speeding up new drug approvals from the FDA and cutting regulations than on reducing industry profits. This lines up with the perspective of a key aide, Silicon Valley billionaire Peter Thiel, who wants to overhaul the FDA process. (In fact, the Republican Congress just overhauled the FDA process in one of the last bills signed by Barack Obama.) Trump doesn’t appear to understand the cost excesses in the supply chain.

Trump did say in his address to a joint session of Congress that he would “bring down the artificially high price of drugs.” And in his confirmation hearing, Health and Human Services Secretary Tom Price, discussing Trump’s idea for competitive bidding in Medicare, said that “right now the PBMs are doing that negotiation. … I think it is important to have a conversation and look at whether there is a better way to do that.”

But where Trump’s team will ultimately land is unknown. “We need to get to a point of clarity about whether the administration is serious,” says the NCPA’s John Norton. Furthermore, any attempt to move forward legislatively on any part of health-care policy will run headlong into the deeply polarized debate over the Affordable Care Act. While a bipartisan alliance appears possible on the PBM issue in isolation, it will be difficult to separate anything health-related from the Obamacare vortex.

The PBM industry’s leading trade group isn’t

rely more on independent, noncommercial sources of information that assess drugs’ effectiveness, safety, and value. My colleagues and I have been trying to improve the dissemination of that kind of information for over a decade. Drawing on a team of clinicians who don’t accept any consulting dollars from drugmakers, we critically review all the treatments available to treat a given condition, package the conclusions in a manageable, userfriendly format, and then “market”

sleeping on the possibility of an attack. Days after Trump met with pharma execs, the Pharmaceutical Care Management Association issued an internal memo leaked by Buzzfeed, stressing the need for “building a political firewall” in Congress to stop any legislative action.

Frightened about drug manufacturers highlighting a “bloated supply chain,” PCMA CEO Merritt laid out a six-point strategy that included meetings with White House staff and key members of Congress, a digital ad campaign targeting congressional leaders, partnerships with right-wing think tanks like the American Action Forum, and working groups to shape regulatory changes that make PBMs the savior instead of a villain. “We will continue to show how competition—not government intervention—is the way to manage high drug costs,” Merritt wrote, apparently without irony. Merritt even scheduled a meeting with the main health insurance lobby, AHIP, “to make sure the payer community is aligned and coordinated.”

With drug companies on one side and PBMs and insurers on the other, both camps will have plenty of resources. In that environment, is bipartisan action possible to break up a powerful monopoly? “My answer would be absolutely,” says Representative Carter. “Everyone is impacted by prescription drug prices.”

David Dayen is a contributing writer to The Nation and author of Chain of Title: How Three Ordinary Americans Uncovered Wall Street’s Great Foreclosure Fraud.

this commercial-free information to prescribers in their offices much as companies’ sales reps do—but without any sales agenda.

In the 19th century, draconian purgative treatments and other useless drugs were a mainstay of clinical medicine. They were widely promoted until medical research showed they were both useless and dangerous, and the government stepped in to protect the public. Looser-is-better drug regulations will force us to relearn

what Americans learned at great cost once before. Screening out dangerous and ineffective drugs is essential to public health and to our reliance on medications that genuinely deserve both our money and our trust.

Jerry Avorn is an internist and professor of medicine at Harvard Medical School and Brigham and Women’s Hospital in Boston, where he is chief of the Division of Pharmacoepidemiology and Pharmacoeconomics.

Spring 2017 The American Prospect 95

The Incoming Privatization Assault Get ready for everything from private infrastructure and private prisons to voucherized schools and Medicaid.

By Jeremy M o hle r and D o nald C o he n

I

n The Art of the Deal, Donald Trump wrote about perhaps his first deal ever, made with his younger brother, Robert: “One day we were in the playroom of our house, building with blocks. I wanted to build a very tall building, but it turned out that I didn’t have enough blocks. I asked Robert if I could borrow some of his, and he said, ‘Okay, but you have to give them back when you’re done.’ I ended up using all of my blocks, and then all of his, and when I was done, I’d created a beautiful building. I liked it so much that I glued the whole thing together. And that was the end of Robert’s blocks.”

According to President Trump, Robert, now 67, likes to tell the “blocks” story because it revealed to him where Donald was headed.

Now, we know where Donald was headed—to the White House, which comes with a much larger playroom, the most powerful in the world: the federal government of the United States.

But the “blocks” story tells us something more. Trump’s signature brand of wheeling and dealing fits neatly in the recent tradition of running government “like a business.” For decades, the corporate world has increasingly become the exemplar of good governance, and the market has come to stand for economic efficiency. These claims have fed into a trend of creeping privatization, which has weakened democratic public control over public goods, expanded corporate power, and widened economic and political inequality. Some of this trend has been driven by the desire to save public funds, and some of it by pure ideology.

Historically, government has often contracted out some tasks, such as highway construction and production of military materiel.

96 WWW.Prospect.org Spring 2017

There have been reasonable debates over what services, such as electricity, should be provided by government as opposed to regulated public utilities. But not until the late 1970s was there a movement to privatize basic public functions.

With the Trump presidency and Republican control of Congress, privatization will drastically accelerate—from privatized infrastructure and private prisons to voucherized schools and Medicaid or Medicare. Despite claims of greater efficiency, the reality is usually higher fees and costs, reduced services, lower wages, and loss of public control. The essence of a public service is cross-subsidy. Free or lowcost provision of water and sewer service, public transit, public education, and public parks tends to help lower-income people, based on the premise that these are basic public goods.

Market principles, by contrast, abhor crosssubsidies. When public goods are redefined as market commodities, the system raises costs to users, especially those with lower incomes.

Take the “deal” at the center of Trump’s guarantee to “Make America Great Again,” his promise to invest $1 trillion in the country’s roads, bridges, and other infrastructure. While this represents only a fraction of the money estimated to be required, such an investment would be substantial, more than Barack Obama’s stimulus at the nadir of the Great Recession. Trump’s infrastructure plan is a pillar of his promises to grow the economy and create millions of new jobs—and for good reason: Infrastructure projects generate middleand high-skill construction and engineering jobs, and inject money into local economies.

But what we know of the plan so far amounts to a stealth privatization of public infrastruc-

ture. Most of that $1 trillion would be private money, and investors would get a tax break to spend it. Based on a paper released during the election cycle by business professor and Trump adviser Peter Navarro and Wilbur Ross, Trump’s commerce secretary and billionaire private equity investor, the plan relies on a whopping 82 percent tax break to attract private capital to infrastructure projects. Private investors would front some of the cash to build, say, a new highway, and through the details of a complex “public-private partnership” they could influence policy regarding the highway.

On top of the tax break, they would recoup their investment by collecting the highway’s toll revenue for decades.

The plan still needs legislative approval. But given the aversion of the Republican Congress to spending money on domestic needs, the final legislation will certainly lean heavily on private finance and privatized operations and maintenance.

In this model, there’s plenty to be wary of— just ask Chicago. In 2008, former Mayor Richard M. Daley signed a 75-year public-private partnership with a Morgan Stanley–led consortium to operate the city’s parking meters, which puts taxpayers on the hook for any city decision that eliminates parking spots. If Chicago throws a street fair or builds permanent bike lanes, the city must reimburse the consortium for lost revenue—for another 66 years.

On top of that, downtown parking meter rates more than doubled in the five years after they were leased out.

Privatization’s consequences are widespread and well documented. In theory, public savings result from superior efficiencies. In practice,

m. spencer green / ap images

Big Shoulders: Parking fees doubled in the first five years after Chicago’s parking meters went private.

management is seldom better and often more vulnerable to sweetheart deals, and savings come mainly from cheaper pay to workers.

Outsourced jobs typically offer lower wages, fewer benefits, and little to no protections.

In the pursuit of profit, contractors often cut corners, lowering the quality of public services.

Taxpayers lose access to basic public information. As more and more public services are contracted out, government begins losing the capacity to supervise the contractors, opening the door to corruption and contractor “lock-in.”

Public money goes to contractor profits, invest-

ment returns, and executive salaries, rather than to investments needed in public health, education, infrastructure, and good jobs.

But privatization also cuts deeper, to the foundation of American democracy. It’s an assault on public control of public goods. The fine print in contracts often makes it harder to make democratic decisions about things we care about. Examples abound. Charter school management organizations often deem curriculum and lesson plans confidential private property, even though the materials were created with public dollars. Public-private part-

nerships often include non-compete clauses that protect profits for private investors and make it tougher to build other infrastructure nearby, like mass transit, to address climate change. Many private prison contracts contain “bed quotas” that all but guarantee 80, 90, and even 100 percent occupancy, boosting mass incarceration. Trump has already reversed President Obama’s decision to phase out use of private prisons for undocumented immigrants convicted of crimes—and the stocks of private prison companies soared.

While Trump comes to the presidency with no government experience, he’s surrounded himself with free-market ideologues, crony capitalists, and conservative think tanks bent on downsizing and outsourcing government.

The former president of the Heritage Foundation, Edwin Feulner, who’s been advising Trump’s transition, once said, “Any government function that can be found in the yellow pages should be a candidate for privatization.”

Billionaire Betsy DeVos, the new education secretary, is a staunch advocate for charter schools and voucher programs. Trump’s nominee to run the Centers for Medicare and Medicaid Services, Seema Verma, recently helped Iowa privatize its Medicaid system, which sputtered into crisis within months. Verma’s potential boss, Tom Price, the new secretary of health and human services, has been relentless about privatizing Medicare.

The entire range of public assets and services are potential targets. Since Election Day, Republican leaders have mentioned selling off public lands and privatizing the nation’s air traffic control system, nuclear waste storage, the Corporation for Public Broadcasting, and the Department of Veterans Affairs. The GOP-­controlled Congress will surely redouble efforts to turn Social Security and Medicare benefits into individual vouchers.

For conservatives, having Trump at the helm is a trifecta of opportunity. First, there’s a lot of money to be made—about $7 trillion spent each year by federal, state, and local governments.

Second, there’s a chance to severely weaken public-sector unions, a powerful pro-government force and a formidable political opponent in elections. Third, free-market ideologues see an opening to fundamentally redefine the role of government. In a democratic society, citizens

Spring 2017 The American Prospect 97

have rights and responsibilities to each other.

In a market society, people are individual consumers of a limited set of public services.

Roots of a Crusade

The year Trump was born, 1946, also kicked off the career of the best American promoter of free-market ideas. Milton Friedman joined the faculty that year at the University of Chicago, where he’d eventually become the foremost economist in the so-called “Chicago school” of economics. Friedman’s insight that government responsibility could be separated from government provision of services gave conservatives a fresh approach. This meant that privatization didn’t necessarily require cutting popular public services—instead they could be handed to private contractors.

Privatization advocates chipped away at government through the 1970s, but it wasn’t until the 1980s, with the election of Ronald Reagan as president, that privatization went mainstream. By 1987, Reagan’s budget plan included more privatization proposals than any president had ever recommended, including the sale of two federally owned airports, a railroad, four regional power agencies and their electricity-generating dams, and weather satellites. Stymied by a Democratic Congress, Reagan only succeeded in privatizing Conrail, the northeastern freight railroad taken over by the federal government from the bankrupt Penn Central. In 1988, a presidential commission developed a road map of federal functions to privatize, including low-income housing, federal loan programs, air traffic control, education vouchers, the Postal Service, prisons, Amtrak, Medicare, and urban mass transit.

But congressional Democrats stood up again, thwarting the commission’s recommendations.

Fred Smith Jr. of the Competitive Enterprise Institute, a libertarian think tank, tore into Reagan for failing to develop an effective strategy to take on core Democratic constituencies. Smith argued that for a privatization proposal to “make it through the political process,” a “viable privatization coalition” must be created. Thus a top priority, Smith wrote, “should be to identify Democratic senators and representatives who might be persuaded to support privatization and convince them to take the lead on the issue.”

98 WWW.Prospect.org Spring 2017

Smith’s ideas were inspired by Madsen Pirie, the architect of Margaret Thatcher’s privatization efforts across the pond, and the BritishAmerican Stuart Butler, then at the Heritage Foundation. The problem in the United States, as Butler saw it in a 1987 paper, was not a lack of determination, but that the Reagan administration had failed to change the underlying political dynamics that favored increased federal spending. “Conditions must be created in which the demand for government spending is diverted into the private sector,” he wrote.

“Instead of having to say ‘no’ to constituencies,” through privatization “politicians can adopt a more palatable approach to cutting spending.”

Though the right continued to push priva-

Private investment increases dependence on tolls and user fees to pay debt service and ongoing operations. tization during the Bush and Clinton eras, Congress was able to block most major efforts at the national level. Much of the battle over privatization moved to state capitols and city halls. A well-established network of conservative think tanks, industry associations, investors, and corporate lobbyists—the State Policy Network, ALEC, and others—began pushing privatization projects and enabling legislation.

Today, contractors, Wall Street, and multinational corporations vie for the estimated $1.5 trillion that state and local governments combined spend annually on outsourcing. Redstate politicians carry the water, but politicians facing tight budgets in blue regions increasingly have become game.

Enter Trump, riding a wave of right-wing populism and hatred for nearly everything government. The Reagan administration had

similarly broad goals but hadn’t built the political apparatus and congressional support to accomplish them. Trump has been handed both, and privatization will now be a key goal of federal policy.

Privatized Infrastructure

To say America has an infrastructure problem would be an understatement. The American Society of Civil Engineers estimates that our roads, bridges, water systems, and other infrastructure need $1.4 trillion in investment before 2025. State and local spending on roads, bridges, schools, water treatment plants, and other infrastructure is at a 30-year low. Federal spending has fallen by half over the past 35 years.

Washington spends around six times more on the military than it does on infrastructure.

Public opposition to taxes—fueled by attacks on government—has left mayors and governors desperate for ways to make up this funding gap. This desperation has opened the door for private investors, construction giants, and global water companies who see potential for market share and stable returns. The centerpiece for this burgeoning infrastructure industry is the “public-private partnership,” which replaces public debt with private capital and privatizes operations and maintenance.

Traditionally, infrastructure projects are built with public debt raised through taxexempt bonds sold to institutional investors like pension funds and mutual funds. The public pays off the debt through taxes or a combination of taxes, fares, and tolls. In a public-private partnership, investors front the cash to build—and often maintain and operate the resulting asset—allowing elected leaders to promise no new taxes. Private financing is considered “off–balance sheet debt,” because it doesn’t show up on a city’s or state’s debt load or impact their bond rating. But the debt is still real. The public pays it off through tolls, user fees, or transit fares, and sometimes through guaranteed annual payments (called “availability payments”) from general taxes. Investors promise better, cheaper, and faster, but they demand a healthy return—usually 10–25 percent—making the deals a costly and dangerous alternative to building things the oldfashioned way, with tax-exempt public debt.

The deals are sold as benign “partnerships,”

l i n d a d av i d s o n / wa s h i n g t o n p o s t v i a g e t t y i m a g e s

NOT Lanes. In Virginia, a deal with a private consortium punishes the state for increased carpooling, which costs the consortium toll revenues. Virginia deters HOV use by requiring 3 occupants; most states require only 2.

but without strong protections for the public, they can be anything but.

Many public-private partnerships, by design, limit or eliminate the public’s ability to make critical decisions. Through so-called “non-compete” clauses and compensation clauses often buried deep in contracts and long-term leases, investors reduce their risk exposure and lock in profit. Such clauses limit the public’s control over policy by adding additional costs to normal policy decisions. The examples border on absurd. A private consortium operating the Northwest Parkway toll road in Denver, Colorado, stopped the city in 2008 from making improvements to a nearby public road. The consortium cited contract language that prevented improvements that “might hurt the parkway financially” by providing an alternative route for travelers, thus potentially reducing toll revenue. In Virginia, a long-term contract with a multinational consortium penalizes the state for increased carpooling on the Capital Beltway’s highoccupancy express toll lanes. During floods in 2008, a state of emergency was declared and tolls were waived on the Indiana Toll Road— the private joint-venture running the road

charged the state $447,000 for missed tolls.

Private investment increases dependence on tolls and user fees to pay debt service and ongoing operations and maintenance. Infrastructure costs money—there’s no free lunch—but private investment makes it nearly impossible to provide affordable access for everyone. The small Pennsylvania town of Coatesville, for example, saw the cost of water skyrocket after the city sold its water and wastewater systems to the publicly traded corporate giant American Water in 2001. Residents, nearly threequarters of which are of color, saw their water bills increase 282 percent between then and 2015. In Chicago, where downtown parking meter rates have skyrocketed, not a cent of the $121.7 million the privatized meters took in last year went to the city. Instead, it went to the Morgan Stanley–led consortium, which is on pace to make back the $1.15 billion it paid to the city by 2020, leaving more than 60 years of meter revenue to go. The city of Bayonne, New Jersey, recently made headlines for its massive water-rate increase—nearly 28 percent since the city sold its system to a private equity firm in 2012. To sell the deal to residents, city officials promised a four-year rate freeze that

never materialized. Public-private partnerships often shift the political burden in this way. Ratepayers and taxpayers foot the bill, but government agencies can say tolls, fares, and rates are private decisions.

Sometimes the decisions really are private. A public-private partnership recently fell through in Texas when the consortium that financed and built the State Highway 130 toll road didn’t hit its revenue projections and declared bankruptcy. The consortium, led by a Spanish developer, had long refused to release the traffic projections the project was based on, claiming that doing so could help its competitors.

In a similar deal, the Indiana Toll Road, built by the public in the 1950s, was turned over to a Spanish-Australian joint venture in 2006 for 75 years in exchange for a $3.8 billion upfront payment to the state. Since then, traffic has dropped and toll rates have skyrocketed, so much so that the joint venture went bankrupt in 2014. Many blamed faulty traffic projections, but who would know? The actual projections remain proprietary and shielded from public view. In late February of this year, Trump added a key player in that deal, D.J. Gribbin, who worked for the Australian half of the joint venture at the time, as special assistant on infrastructure policy.

Trump has yet to release a formal infrastructure plan, but has tipped his hand by stocking his administration with public-private partnership enthusiasts. Beyond Navarro and Ross, the transition point person for transportation and infrastructure policy staff was former George W. Bush transportation official Martin Whitmer, who previously ran the “public-private ventures division” at the American Road & Transportation Builders Association. Shirley Ybarra, who led the Department of Transportation transition and presumably helped peg Elaine Chao for transportation secretary, is a former transportation policy analyst at the libertarian Reason Foundation and authored the first public-private partnership bill in the nation, Virginia’s PublicPrivate Transportation Act of 1995.

Chao, who is married to Senate Majority Leader Mitch McConnell, has remained relatively agnostic about the use of public-private partnerships, saying in her confirmation hearing when asked whether the Trump adminis-

Spring 2017 The American Prospect 99

tration would be supportive of direct federal spending on transportation, “I believe the answer is yes.” But she also said, “In order to take full advantage of the estimated trillions in capital that equity firms, pension funds, and endowments can invest, [public-private] partnerships must be incentivized with a bold, new vision.” Straddling the line might have been the safest play, but as a former distinguished fellow at the Heritage Foundation, which promotes “private sector ownership, financing, operation, and maintenance of infrastructure and transportation services,” Chao will likely favor the private sector where the rubber meets the road.

The Prison-Industrial Complex

100 WWW.Prospect.org Spring 2017

Correct this: Corrections Corporation of America (now CoreCivic) ran what inmates dubbed “Gladiator School” because of a violent atmosphere they say understaffing helped create at the Idaho Correctional Center.

grown into a multibillion-dollar industry. The industry spends millions of dollars each year influencing public officials, making it harder to break the country’s addiction to incarceration.

With Attorney General Jeff Sessions in the driver’s seat, the Justice Department is likely to take a step back from the mild reforms it enacted under the Obama administration. Sessions is a big fan of the war on drugs, which has been a major driver of mass incarceration. He also has a history of supporting private prisons, green-lighting them for use in Alabama when he was attorney general of his home state. Private prison companies have taken note. Shortly after the Justice Department’s August announcement, the country’s second-largest private prison company, GEO Group, hired several lobbyists, including two former Sessions aides. Investors have taken note, too. The day after Election Day, CoreCivic’s stock increased in value more than any other on the New York Stock Exchange.

Trump’s “law and order” rhetoric sent the stock skyward, but so did his promise to deport millions of undocumented immigrants.

The immigration detention system is highly privatized. Massive deportation would likely require help from private prison companies to expand old detention facilities or build new

ones to hold immigrants awaiting deportation.

Regardless of what Trump does, private prison industry leaders have long seen the writing on the wall as many states continue criminal justice reform efforts. As fewer people have been sent to prisons and jails in recent years, the industry has expanded beyond the business of incarceration. Since 2005, CoreCivic and GEO Group have collectively spent more than $680 million acquiring smaller companies that provide services such as residential re-entry (“halfway houses”) and electronic monitoring. Like private prisons, private halfway houses have been rife with scandal.

Private prison companies have also positioned themselves, in an effort to elude mounting backlash, as if they were in another line of business altogether. When CoreCivic changed its name from CCA in October, CEO Damon Hininger said it was about transforming the business to provide a “wider range of government solutions,” including real estate. In fact, several years ago, CoreCivic and GEO Group changed their corporate legal status to become Real Estate Investment Trusts, offering significant tax reductions. In 2015 alone, the companies used the REIT status and other avenues to avoid a combined $113 million in federal income taxes.

charlie litchfield / ap images

When it comes to criminal justice, Trump has no qualms with running government like a business. He told MSNBC ’s Chris Matthews during the campaign, “I do think we can do a lot of privatizations [sic] and private prisons.

It seems to work a lot better.”

Trump must’ve been relying on facts of the alternative variety. Today, private prison companies already hold contracts to operate hundreds of prisons, jails, and detention centers across the country. Studies show that these facilities increase recidivism and tend to be more violent than public facilities. In 2014, Idaho, not exactly a liberal state, ended a contract with the country’s largest private prison company, CoreCivic (formerly CCA), after the rate of assaults at the company’s prison was four times that of the other seven Idaho prisons combined. Prisoners said the prison was so violent it was nicknamed the “Gladiator School.” When the Obama Justice Department announced in August of last year that it would begin to phase out some of its private prison contracts, it concluded that private prisons “simply do not provide the same level of correctional services, programs, and resources; they do not save substantially on costs; and … they do not maintain the same level of safety and security.”

For decades, private prison companies have acted as an enabling force for both mass incarceration and the criminalization of immigration. As incarcerated and detained populations have swelled, the business of owning and operating prisons and jails to incarcerate them has

The War on the Poor

There may not be a better representative of Trump’s winner-takes-all attitude in Congress than former Georgia Republican Representative Tom Price. Last March, the former orthopedic surgeon announced his opposition to a proposal meant to reduce doctors’ financial incentives to prescribe expensive drugs through Medicare. A week later, he bought stock in six pharmaceutical companies that would benefit from the proposal’s defeat. The companies had lobbied Congress—and presumably Price—to stop the proposal, and they eventually won.

Price happens to now run the Health and Human Services Department under Trump, which means he’ll oversee core health-care entitlement programs like Medicaid and Medicare. He’s been an advocate for forcing “ablebodied” Medicaid recipients to meet work requirements and shifting Medicaid funding into state block grants. Shortly after the election, Price said he expected Congress to push forward with a Medicare overhaul—i.e., privatization via vouchers—within the first six to eight months of the Trump administration. A day after Trump nominated him to run HHS, Price released a new agenda that called for automatic across-the-board cuts to programs, including Medicare and Medicaid, and even Social Security.

The magical thinking of privatization has no more devastating consequences than when it’s applied to those living on the margins. Ask Iowa’s poor and disabled. Last spring, the state handed its Medicaid system to three big insurance companies. Under “managed care,” the insurance companies are paid a fixed amount to cover nearly 600,000 of Iowa’s most vulnerable.

Managed care appears to be headed for disaster.

Hospitals, nursing homes, and clinics say they’ve lost hundreds of thousands of dollars in expected reimbursements and spent countless hours chasing down payments. Even so, the insurance companies say they’re struggling too. In October, Iowa Republican Governor Terry Branstad, who spearheaded the privatization effort, saying it would save the state millions, handed the companies an additional $33.2 million, which triggered an extra $94.5 million in federal money.

Apparently, that wasn’t enough. The companies expect themselves to have lost $450 million total in the first year of managed care. In February, an

executive for one of the companies told investors not to worry—he’s optimistic about negotiating even more money from the state in the future.

The architect of Iowa’s managed-care system may soon be a familiar face nationwide.

Seema Verma, Trump’s pick for administrator of the Centers for Medicare and Medicaid Services, has deep ties to the administration. In 2007, Verma helped Vice President Mike Pence create savings accounts for Medicaid recipients in Indiana, requiring poor and disabled people to make premium-like monthly payments into an account to receive coverage. Verma considers the payments a way to get people to take “personal responsibility” and encourage them to stay engaged with their health. State reports

private prison companies have helped enable both mass incarceration and the criminalization of immigration. show thousands of people have been kicked off of coverage for missing payments, and many more are confused about how the program even works. As of November 2016, 397,000 people had enrolled in the program out of the 573,000 that are estimated to be eligible and would have been automatically covered without the payment requirement.

Trump considers Verma and Price “the dream team that will transform our healthcare system for the benefit of all Americans.” But in reality—not dreams—the health-care system, especially the social safety net, has long been transforming to benefit fewer and fewer Americans. Safety net programs are low-hanging fruit for privatization efforts, as they impact those who have little to no political power.

The 1996 Personal Responsibility and Work Opportunity Act, Bill Clinton’s signature wel-

fare overhaul, set the stage for social services privatization. Welfare reform centered on cost savings for programs and work requirements for beneficiaries, supercharging the privatization of services like Medicaid provision, foster care, food stamps, and child support. For example, shifting to block grants for services like cash assistance contributed to a shift in funds to private companies, as contractors promised states cost savings through privatization. The law also removed restrictions that had prohibited states from outsourcing welfare intake and eligibility in what The Washington Post described as perhaps “the largest transfers of public sector operations into private hands.”

The result: Fewer and fewer poor families actually receive the benefits they need. For example, since 2001, Oklahoma has given a contractor more than $70 million in TANF money to run relationship workshops, including classes to help couples find compatible “love styles,” as a way of encouraging marriage.

In the 15 years the classes have been offered, the marriage rate has actually fallen. Contractors have flourished in the new social services environment. In 2000, Lockheed Martin disclosed that welfare-reform services was one of its two fastest-growing business lines at that time. JPMorgan Chase made more than half a billion dollars between 2004 and 2012 providing public assistance benefits.

In the first months of the Trump administration, more direct assaults on our democracy have gotten most of the attention. Privatization of the public realm is another core assault. But evidence is piling up about the true costs of privatization. Communities across the country have struggled against and won against private prison companies, billionaires funding school choice, multinational water corporations, and more. One front where many citizens can come together in the Trump era is in the struggle for what we own together.

Jeremy Mohler performs strategic communications for In the Public Interest, a national research and policy center on the privatization of public goods and responsible contracting.

Donald Cohen is founder and executive director of In the Public Interest, and a founding board member of the Partnership for Working Families.

Spring 2017 The American Prospect 101

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In Search of Obama Jonathan Chait lays out the case for Obama as a transformative president. By Julian E. Zelizer b

pete souza / white house

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onathan Chait’s Audacity is the perfect book for anyone in search of a robust defense of President Barack Obama. Taking aim at Obama’s critics on the right and the left, the New York magazine columnist offers a fullthroated defense of the former president. In his quintessentially punchy style, Chait provides a thoughtful and compelling case as to why Obama was a transformative president.

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The book feels as if it were written at the height of the Democratic primary in March or April of 2016, when Bernie Sanders and Hillary Clinton were engaged in a brutal left-right competition for the soul of the party, rather than in early 2017 when the world is trying to make sense of President Donald Trump. While Chait spends a good amount of time punching holes in the claims of rabid Republicans who said Obama accomplished

nothing of significance, the focus of the work is a frustrated and pointed response to left-wing Democrats who believe that their president let them down. Rather than a passive centrist who settled on middling, market-based solutions to domestic problems, Chait believes that Obama had large ambitions and worked hard to turn them into policy in an extraordinarily difficult political environment. In the end, what’s most

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important is that he delivered.

President Obama wasn’t perfect, Chait says, but he never promised that he would be. Those who expected perfection and graded him accordingly did so based on a false nostalgia about his predecessors—like Lincoln, FDR , or LBJ—all of whom weren’t as powerful as we often remember them to be.

Chait’s Obama is an audacious commander-in-chief who made great progress on a number of critical policy challenges, including health care, the economy, financial regulation, climate change, and education. In contrast to the public perception, Obama turned out to be a bold risk-taker who was

Spring 2017 The American Prospect 103

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often more willing than his inner circle of advisers to pursue big changes despite the potential political fallout.

He even found ways to use Republican ideas to achieve progressive changes.

Chait recounts the many ways that the Affordable Care Act succeeded in expanding insurance coverage and containing costs. The economics of health care forever changed as a result of the policy. Echoing the work of Michael Grunwald, Chait argues that the economic stimulus saved the nation from another Great Depression and revived economic conditions, even if nobody seemed to give the administration any credit for what it had achieved. DoddFrank constituted a bold piece of financial regulation that curbed Wall Street’s riskiest and most destructive form of behavior. Chait even depicts more modest programs such as education reform as crucial policy innovations that would have been considered breakthroughs in other presidencies if it hadn’t been for the overwhelming number of other changes that took place.

When Chait turns to foreign policy, his challenge is more difficult. With the rise of ISIS and the chaos in Syria, as well as ongoing Russian aggression, Chait admits that the administration made many terrible mistakes during its eight years. He doesn’t deny the bloodshed and instability that were partially a result of Obama’s poor choices. Yet Chait doesn’t back down from his bigger claim. He correctly reminds us that President Obama drew down our involvement in President George W. Bush’s wars in Afghanistan and Iraq and eliminated some of the most egregious parts of the counterterrorism program, such as ending the use of torture, all while waging an effective drone war against terrorist networks. The Iran nuclear deal was a landmark measure to contain nuclear proliferation. Moving from specific areas to his overall approach to international relations, Chait believes that Obama moved the U.S. government away from the aggressive interventionism that took hold after September 11 toward a more cautious and restrained diplomatic model of foreign policy.

Not only did Obama accomplish much of what he set out to do, but

104 WWW.Prospect.org Spring 2017

Chait believes that the accomplishments will not easily be undone.

Indeed, he uses strong language to argue that those who are warning about the likelihood that Obama’s legacy will mostly be dismantled are wrong: “The fatalistic conclusion that Trump can erase Obama’s achievements is overstated—perhaps even completely false.”

Chait couples his analysis of Obama’s policy legacy with a Whiggish take on his political legacy. Although it is hard for Democrats to muster much of a smile as President Trump and the Republican Congress get to work on an extraordinarily rightward agenda, Chait feels that the Obama coalition of immigrants, African Americans, young voters, educated suburbanites and women does offer a path to success in the coming years. The 2016 election, he argues, was the last gasp of an older vision of America that won’t work as a result of the demographic changes transforming the country.

Hillary Clinton’s loss, he says, was not Obama’s fault. “She lost despite, not because of, her association with the popular sitting president.”

And yet, when read in 2017, some of the arguments Chait makes seem suspect. If it is possible to give a president credit for much of the policy success that takes place during his tenure, it is also justified to blame him for some of the political problems that he and his party encountered. Right now, Democrats are looking at a Republican president pursuing a right-wing agenda, working with an extremely conservative Congress that stands a good chance of surviving the usual midterm backlash, and a massive number of Republican statehouses and governors, who are going to do everything possible to protect Republican power at the local level.

That’s not all. During Obama’s presidency, the conservative movement reenergized at the grassroots level with the formation of the Tea Party movement that fueled the Republican takeover of Congress in 2010. Conservatives have also created a vast infrastructure of interest groups and media outlets that provide the right with a permanent institutional stronghold.

Even if the Democratic coalition looks

Audacity: How Barack Obama Defied His Critics and Created a Legacy That Will Prevail

By Jonathan Chait

HarperCollins

like a winning one in the long term, we are all dead in the long run, as Keynes said. Right now, Democrats are not in great shape.

As historians look back at what happened, some of the blame for the condition of the Democratic Party will have to fall on the president’s choices.

The organizational strength of the Democrats at the state and local level has withered under bad leadership, as Theda Skocpol has argued. To the dismay of congressional Democrats, the president has not always worked hard enough to help the party amass the resources that it needed to fight an aggressive GOP. His Democratic critics complained that Organizing for America, his political campaign operation, had always focused on Obama over the interests of the party in the states and localities. Unlike Franklin Roosevelt, Obama does not leave behind a coalition that, at least in the short term, has the muscle to protect what he built.

Obama had an unyielding belief in the potential for bipartisanship and civility. This was the promise of his brilliant speech at the 2004 Democratic Convention, when he questioned the idea of a hardened red and blue America and claimed the divide did not have to be permanent. He continually attempted to reach out to Republicans early in his term, putting compromises on the table even when it became clear that the Republican compromise would never come.

The contrast with Trump, who as president has aggressively appealed to his campaign base as a way to start building pressure on Congress, is striking. Obama didn’t do that, to the frustration of supporters who understood just how vibrant his grassroots appeal had been. When Republicans embarked on a zealous campaign of austerity, or “anti-deficit fervor” as Chait describes it, Obama didn’t offer a full-scale rhetorical response and expose the economic irrationality of their arguments.

In an interview with David Remnick after Trump’s victory, Obama admitted: “We’ve seen this coming.

Donald Trump is not an outlier; he is a culmination, a logical conclusion of the rhetoric and tactics of the

pete souza / white house

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Republican Party for the past ten, fifteen, twenty years. What surprised me was the degree to which those tactics and rhetoric completely jumped the rails. There were no governing principles, there was no one to say, ‘No, this is going too far, this isn’t what we stand for.’ But we’ve seen it for eight years, even with reasonable people like John Boehner, who, when push came to shove, wouldn’t push back against these currents.”

It is reasonable to ask, why was Obama caught by surprise? Why wasn’t he more aware? Why didn’t he do more to work with the Democratic Party and activists to fight these currents as he saw them gradually building strength?

Some will question whether the design of policies was as sound as Chait argues. It is true that Obama faced enormous obstacles and made pragmatic decisions about what policy design would work best. But, as critics have noted, the way he and his advisers chose to structure the policies did have costs. A key measure for any policy is not simply whether it passes but whether it lasts. Some of the challenges the Obama legacy faces stem from the design of the programs themselves. While it is true that the byzantine methods through which the Affordable Care Act lowered costs and guaranteed insurance were politically shrewd given the obstacles that health-care reform has confronted in the past, the program often made it difficult for beneficiaries to perceive what the program did. It depended on mechanisms such as the subsidies for exchanges and the individual mandate that would offer conservatives juicy targets to unravel the program.

The ACA lacked the clear and direct kind of benefit that Social Security or Medicare provided.

The Dodd-Frank regulations, which Chait touts as a major success, were also limited and highly vulnerable to changes in policy by a new

Why didn’t Obama do more to work with the Democratic Party and activists to fight these currents as he saw them gradually building strength?

administration. Critics, and not just on the left, have pointed out how the design created a significant amount of space for financial institutions to curtail the impact of the programs.

The reforms did not do enough to undercut the power of the interests they were meant to regulate; they only provided a framework for governance rather than more specific rules. The flexibility built into the law gave the financial industry more than enough room to maneuver to weaken the effects. Although some risky activity has been curtailed, there is more than enough evidence that Wall Street is on anything but its best behavior. All of the designs created regulatory programs that would be possible to dismantle via a president and cabinet leaders who were not interested, as is now the case, in carrying out the laws. Chait may turn out to be correct. But the programs were not well designed to withstand counterattack.

Chait is also much too dismissive of the left. In his book, the left comes across as a bunch of whiny, unrealistic neophytes who don’t know much about how politics work. In his chapter on revered earlier presidents, Chait means to show that the critics of Obama have little understanding of what actually happened in the

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past. But for Obama and all other mainstream, pragmatic liberals, the left has been an essential force for generating ideas and creating grassroots political pressure.

Historians such as Doug Rossinow and Michael Kazin, whom Chait criticizes, have demonstrated that many of the best moments for liberals— such as the mid-1930s or the mid-1960s—come when the left keeps the feet of the Democratic leadership to the fire, forces issues onto the agenda, and helps create the kind of political momentum that leaders need to overcome political opposition.

The left pushes Democrats as a whole to address big questions—like racial injustice or economic inequality—that seem unrealistic or out of bounds, until they are not. If Democrats had ignored the cries of the left, we might never have obtained the Civil Rights Act of 1964 or the ACA , for that matter. Chait downplays the role of congressional Democrats and the left in driving the health-care legislation in 2009 and 2010 even when the administration buckled.

Obama’s legacy looks simultaneously greater and more vulnerable as we watch President Trump take his political sledgehammer to Washington. As Chait rightly claims, the policies that he leaves behind are impressive and, should they survive, they will remake the social compact.

But will they survive? That’s the burning question right now. If they don’t, his audacity won’t seem so grand.

And that is where some of the costs of Obama’s mistakes might prove to be most damaging, if there is no left to defend what he created.

Julian E. Zelizer is a political historian at Princeton University and a fellow at New America. His most recent book is The Fierce Urgency of Now: Lyndon Johnson, Congress, and the Battle for the Great Society.

Spring 2017 The American Prospect 105

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How the Religious Right Led to Trump Two new books on American religious history provide key insights into the currents that produced one of the country’s least religious and least biblically literate presidents. By Sarah Posner b

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onald Trump’s conquest of the White House, buoyed by the overwhelming support of white evangelicals, has, for the moment at least, quelled the semi-regular pronouncements of the death of the religious right. As the numbers of non-white and non-religious Americans have increased, the demographic weight of white evangelicals has fallen. But rather than withering away, the religious right in its 2017 version seems poised to capitalize on unexpected access to power—a miracle, if you will. They are ecstatic over Trump’s Supreme Court pick, Neil Gorsuch, and what they see as his steadfast protection of religious liberty and opposition to abortion. They also see trusted longtime allies in Vice President Mike Pence and at the helms of the Departments of Justice and Health and Human Services; a co-religionist, climate-change denier as the head of the Environmental Protection Agency; and an opponent of public schools, long the movement’s “secular humanist” bogeyman, as secretary of education.

Americans have been puzzling over how the religious right made a Faustian bargain with one of America’s most boastful violators of the “values” that the movement claims to uphold. Given the unprecedented circumstances, it would be tempting to characterize 2016 as a fluke election in which a Kremlin-backed charlatan upended our electoral process.

The religious right’s coattail victory would then be evidence not of a lasting resurgence, but of a temporary victory followed perhaps by an inexorable decline. After all, how can this movement, not even popular among all Republicans, keep going? Isn’t the rest of America—feminists, secularists, liberal Christians, religious minorities, and anyone who has yielded to hedonistic impulses—finally poised to

106 WWW.Prospect.org Spring 2017

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prevail over the religious right?

Two new books, in very different ways, offer crucial insights into how we got here and why resistance to the enduring influence of the religious right is a long game, perhaps even a defining feature of the republic. The first, Pulitzer Prize–winning journalist Frances FitzGerald’s The Evangelicals: The Struggle to Shape America, is a sweeping and vibrant history of white evangelicals in America from colonial times to the present—or, rather, up to the Trump presidency.

If FitzGerald tells us the comprehensive and often lurid tale of how white evangelicals shaped our politics, Yale sociologist Philip Gorski’s American Covenant: A History of Civil Religion from the Puritans to the Present offers an antidote of sorts. An ambitious account of American civil religion, his book explores the tension between “religious nationalism” and “radical secularism”—in other words, the culture war over whether America is a Christian nation or a purely secular one. FitzGerald shows us how white evangelicals shaped our politics; Gorski asks why their religious nationalism should prevail in a pluralistic republic.

Both authors finished their books before Trump was elected, and FitzGerald’s conclusion—that the religious right finally has lost its luster— feels regrettably premature. Still, her book should be of great interest to any number of readers, whether they are merely curious or deeply preoccupied about evangelicals and the turbulent intersection of religion and politics. If you’ve ever wanted to understand the First and Second Great Awakenings, abolitionist evangelicals, the history of Baptists, Methodists, and Presbyterians and all their internal turmoil and schisms, the origins of biblical “inerrancy,” or the full history of the fundamentalist-modernist split,

The Evangelicals: The Struggle to Shape America

By Frances FitzGerald

Simon and Schuster

American Covenant: A History of Civil Religion from the Puritans to the Present

By Philip Gorski

Princeton University Press

FitzGerald has you covered. If your tastes run more contemporary, you could start with FitzGerald’s history of Billy Graham’s rise after World War II and read through the period covering the religious right’s travails during the Obama era.

Much of the section on Graham—­ ably recounted by FitzGerald—will be familiar to readers from the iconic evangelist’s biographies and other religious histories of the period. Fitz­ Gerald also gives us vivid accounts of the ascent of Oral Roberts, founder of the eponymous university in Tulsa, Oklahoma, and a pioneer of religious broadcasting and the “seed-faith” theology of the prosperity gospel. She recounts the shenanigans of Jim and Tammy Faye Bakker, whose scandalplagued PTL (“Praise the Lord”) television network and Heritage USA megaplex came crashing down, landing Jim Bakker in jail for fraud.

Some important aspects of the history of televangelism’s popularization of Pentecostalism and charismatic Christianity don’t get adequate attention in FitzGerald’s book. For example, she mentions Word of Faith pioneer Kenneth Hagin only in passing and omits the history of the Trinity Broadcasting Network. But her account of the rise of Pat Robertson and building of the Christian Broadcasting Network and the Christian Coalition is an essential contribution, especially given the network’s role in promoting Trump.

FitzGerald’s treatment of R.J. Rushdoony, the founder of Christian Reconstructionism, and of Moral Majority founder Jerry Falwell provides a critical backstory for understanding Trump’s appeal to white evangelicals. Her discussion of the reclusive and prolific Rushdoony is the best non-academic treatment that I’ve seen, capturing both his rigid Calvinist drive to replace civil law with biblical law and his propensity for conspiracy theories to undermine perceived enemies. Most on the religious right today would publicly reject Rushdoony’s specific proposals—such as advocacy of slavery and punishment by stoning—but FitzGerald correctly points out that his broader ideas “made their way into a variety

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pa r k e r m i c h e l s - b oyc e / t h e n e w s & a d va n c e v i a a p i m a g e s

Donald Trump speaking at Liberty University in 2012, with Jerry Falwell Jr., left, and Michele Bachmann on the far right

of Christian right circles whose members adopted those they found useful for filling in intellectual gaps.” Rushdoony’s America, she adds, “was white and Calvinist, and at the heart of his politics was not just racism but an allpurpose full-service bigotry.” He was “completely straightforward in rejecting democracy,” FitzGerald notes, as he wrote that “Christianity is completely and radically anti-democratic,” and only “the right have rights.”

Rushdoony peddled in conspiracy, too, promoting Bircher tracts and arguing that “the view of history as conspiracy … is a basic tenet of … orthodox Christianity.” It’s not hard, then, to see how the seeds planted by Rushdoony could have led to Trumpism—to the idea of a white elect purifying the nation by promoting supposedly Christian answers to sinister threats.

In its early days, the religious right also needed a political player, or, more to the point, a political compromiser, and that’s where, in FitzGerald’s telling, Falwell comes in. Falwell’s achievement, FitzGerald suggests, emerged not from any demand that politicians adhere to religious or ideological litmus tests, but from his willingness to present the movement as a “loyal constituency” to the Republican Party. Falwell, she argues, didn’t insist on a particular piece of legislation or policy result from Reagan, recognizing that gauzy speeches about

traditional values did “more to spread the Christian right message than Falwell ever could.” Reagan, she writes, was the “other half of the epoxy” in gluing white evangelicals and the GOP. For Falwell, then, the culture wars were performative, not political; it was more important to keep waging those wars than to obtain solutions from Washington.

Through this lens, one can see how Falwell’s son Jerry Jr. follows in his father’s footsteps, not just as heir to the presidency of Liberty University but as one of the earliest evangelical endorsers of Trump. Trump’s pledge to make America great was more important to Jerry Jr. than Trump’s adherence to religious-right litmus tests. As he told me last spring: “This is not a race for the pastor-in-chief, it’s the commander-in-chief. I think it’s obvious to the vast majority of rankand-file Christian voters.” His father’s Moral Majority, as an organization, faded away long ago but left a legacy of white evangelicals who see their role in politics as choosing an anointed strongman who will save America from the disobedient, the un-American secularists, and the infiltrators— and ultimately from God’s judgment.

A critique of that kind of apocalyptic religious nationalism lies at the heart of Gorski’s book, a vastly different project that is, in many ways, a welcome counterpoint to FitzGerald’s

Falwell’s white evangelicals see their role in politics as choosing an anointed strongman who will save America from the disobedient, the un-­ American secularists, and the infiltrators.

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chronicle. FitzGerald acknowledges that she is presenting a history of white evangelicals in an effort “to understand the Christian right and its evangelical opponents.” Accordingly, she “omits the history of African American churches because theirs is a different story, mainly one of resistance to slavery and segregation.”

Gorski, in contrast, positions that story of resistance as central to the broader American religious experience and includes in his wide-ranging account the contributions to American civil religion of Frederick Douglass, W.E.B. Du Bois, Martin Luther King Jr., and Barack Obama.

Gorski’s guiding principle is the quest to recover a centrist civil religion and to save the republic from the polarized oppositions of the culture wars. On the one hand, the “religious nationalists,” aka the religious right, press their “persistent claims that the United States was ‘founded as a Christian nation’ or that the U.S. Constitution is ‘premised on Judeo-Christian values,’” which Gorski argues, correctly, “are neither historically accurate nor politically harmless.” He pits this camp against “radical secularism,” which he describes as “little more than a misguided effort at cultural censorship” and “political illiberalism dressed up as liberal politics.”

Gorski’s setup here contains a critical error. In his opening chapter, he asks, “How have religious nationalism and radical secularism come to exert so much influence over our public life?” The reality, however, is that religious nationalism exerts far more influence in our politics than “radical secularism” does. Gorski maintains that this dichotomy “has arisen in part because both sides have been supported by vocal and well-organized minorities,” and they serve, in effect, as each other’s foil: “each tradition strongly confirms the other’s prejudices.” The two sides, then, crowd out the middle ground of Gorski’s civil religion, which rejects the “conquest narrative” and apocalypticism of the religious nationalists as well as the total separation of religion and politics he says the “radical secularists” demand.

Despite this flawed formulation of the sparring sides in the culture

Spring 2017 The American Prospect 107

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wars, Gorski delivers a rich, detailed account of the history of efforts to define American religion. The central theme is how a more pluralistic, but not anti-religious, civil religion is part of our history and perhaps even a larger part of our future. Along the way, he introduces us to the Puritan progenitors of apocalypticism and to a competing religious narrative of the American founding based not on the New Testament’s Book of Revelation, but on the Hebrew Bible’s Exodus narrative. That struggle between a religious narrative of doom versus one of liberation from oppression is the real central battle in America’s religious wars—not the false opposition between religious nationalism and radical secularism that today pervades our politics.

Gorski finds the seeds of his middle ground in Barack Obama’s brand of presidential religion and even commends to the reader Obama’s preferred authors, including St. Augustine and the theologian Reinhold Niebuhr. Niebuhr, Gorski writes, “traced the roots of American religious nationalism to the hidden conceit that lurked deep” in the Puritan covenant: “the belief that God had chosen [the Puritans], not out of his own divine mercy and sovereign grace, but on account of their peculiar individual and collective virtues.”

Gorski’s nuanced treatment of the intellectual roots of Obama’s thinking suggests that as he wrote American Covenant, Gorski may have thought that his hopes for civil religion were in reach, only to find now that Trump signals a cruel return to religious nationalism. But as both books show, Trumpism has deep and abiding roots.

Our irreligious and biblically illiterate president may not be an aberration in the turbulent history of the religious right. In light of the history of religious nationalism in America, he may be its apotheosis.

Sarah Posner is an investigative journalist whose work on the intersection of religion and politics has appeared in The Washington Post, The New York Times, Rolling Stone, Mother Jones, and many other publications.

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Citizen Activism and the Courts The surprising impact of popular movements on shifting judicial doctrines By Jedediah Purdy b

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avid Cole’s Engines of Liberty is a welcome corrective to a conventional way of narrating constitutional law as being the work of federal courts, especially the Supreme Court, whose justices are nerd-celebrities, internet memes, and partisan heroes or villains. Cole argues that constitutional law comes from sources that are more democratic, and more obscure, than judges. It begins in the work of citizen activists, quixotic lawyers, and legal scholars willing to buck mainstream views and take unfamiliar ideas to their logical conclusions.

If progressives hope the courts will stand in the way of Donald Trump’s enormities, Cole’s arguments suggest, they had better mobilize now for the constitutional values they hope to see judges protect in a few years.

Cole makes his arguments by telling the background stories behind three important legal developments of the last 15 years: the Supreme Court’s embrace of same-sex marriage in 2015, its announcement of a constitutional right to individual gun possession in 2008, and its pushback against George W. Bush’s “War on Terror” in a series of cases concerning the rights of detainees and other targets of that “war.” In each instance, courts behaved surprisingly.

As late as 1990, Warren Burger, the conservative former chief justice of the Supreme Court, called the idea of constitutional right to gun possession a “fraud.” Most courts and constitutional scholars agreed with him. Less than a decade before the Court announced a right to samesex marriage in Obergefell v. Hodges, leading advocates for marriage equality adamantly opposed such a suit because they expected their side to lose badly. Pushback against the war on terrorism is less clean-cut, but the federal courts, in times of war and perceived emergency, have often approved draconian measures, such as internment of Japanese Americans

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in World War II, imprisonment of pacifists and other radicals during World War I, and criminalization of communist activity during the Cold War. Although lawyers at the American Civil Liberties Union, the Center for Constitutional Rights, and other advocacy groups had no doubt that they needed to swing into action against the Bush administration’s response to the al-Qaeda attacks of September 11, 2001, Cole tells us that they had little expectation of success. (He would know. He is now the national legal director of the ACLU, and, besides teaching at Georgetown Law School, has a long history of work as a civil-liberties lawyer.)

Part of the reason so many elite lawyers and judges underestimated the changeability and surprise of constitutional law is that they took court precedents and standard legal reasoning too seriously, and put too little weight on the creativity and power of grassroots politics. Advocates for same-sex marriage spent many years pressing for intermediate forms of legal recognition, especially civil unions. They engaged in political campaigns for sympathy and inclusion in receptive states like Massachusetts and Vermont. They tried out constitutional arguments in state courts, winning marriage equality in 2004 in Massachusetts (chosen partly for its liberal politics, partly because a cumbersome amendment process made it unlikely that voters would overturn the decision by changing the state constitution); the same arguments ended up carrying the day in Obergefell in 2015, but almost certainly would have failed at the Supreme Court in 2004.

The most important thing was that enough of the country got used to the idea that a same-sex couple’s marriage was really a marriage. With that done, it was a relatively short step to conclude that constitutional freedom and equality required legal recognition of that marriage.

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While marriage equality A candlelight rally on the steps of the Statehouse in was moving from a radical Boston in September 2005 was part of the lobbying goal to a constitutional guararsenal activists deployed to defeat a proposed antee, gun-rights activists constitutional ban on gay marriage. were helping their favorite liberty along the same path.

As Cole tells it, the National Rifle Association began its long march in 1977, concentrating on state legislatures to win laws blessing the carrying of concealed guns, guaranteeing a handgun license to most law-abiding applicants, and authorizing the notorious “stand your ground” response to perceived threats. Gun advocates also won stateconstitutional rulings and amendments protecting a right to gun ownership.

(Some states, such as Pennsylvania and Vermont, had protected individual rights to own guns for hunting or self-defense in their state constitutions since before back from its original impulse to the federal constitution existed.) embrace torture, military tribuAlthough the official consensus of nals with no judicial oversight, and elite lawyers and judges was still that “extraordinary rendition” of suspects the Second Amendment’s “right of the to countries with more savage interpeople to keep and bear arms” applied rogation techniques than waterboardonly in connection with service in ing. The results were mixed—today, what the amendment calls a “well regdrone assassinations and surveillance ulated militia,” that view was being continue, and restraints on the latundercut on the ground. ter owe more to Edward Snowden Gun-rights advocates also benthan to the ACLU—but a series of efited from, and sometimes helped to Supreme Court decisions, congressiofinance, a groundswell of historical nal actions, and presidential reversals scholarship suggesting that an individbrought counterterrorism policy from ual right to gun possession was a widely an extra-legal zone into a measure of recognized part of founding-era legal procedural regularity, oversight, and culture, and that the Second Amendtransparency. ment might well have been intended Engines of Liberty: Cole’s main points here are tactical. to protect it even apart from militia The Power of Citizen Without a strong domestic constituservice. Cole suggests that this scholarActivists to Make ency, civil-liberties advocates built ship, along with the increasing influConstitutional Law alliances with foreign governments ence of constitutional originalism, gave

By David Cole whose citizens the United States was five Supreme Court justices confidence Basic holding without due process, moving in a ruling that would have been nearly the terrain of advocacy from stateunimaginable a few years earlier. level grassroots work to international The lawyerly resistance to the “War diplomacy. Rhetorically, they idention Terror” fits Cole’s grassroots story fied Bush’s policies as lawless, and less cleanly. As he points out, in the appealed to courts’ sense of duty (and aftermath of September 11, there was to that of some politicians) to defend little constituency for terror suspects. “the rule of law” against unchecked But an unrelenting series of challengofficial power. Cole argues that, when es moved the Bush administration

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the Supreme Court asserted legal oversight of the Guantanamo prison camp, the justices were self-consciously trying to stay on the right side of history, and had in mind the notorious 1944 decision of Korematsu v.

United States, which upheld Franklin Roosevelt’s internment policy. (Civilliberties lawyers had filed a friendof-the-court brief in the name of Fred Korematsu, whose resistance to internment lent his name to the case.)

This book leads one gently toward a pair of conclusions: first, that constitutional law is a form of politics, and second, that this fact should be somewhat heartening at the present moment. Constitutional rulings move from unimaginable to possible to mainstream because of the sincere conviction and activism of the present generation, not because of James Madison’s design or the third alternative definition of the word “arms” in an 18th-century dictionary. Even originalism, whose advocates present it as an exit ramp from politicized jurisprudence, is really a form of political advocacy: no NRA , no new Second Amendment law, never mind what a few law professors might

Spring 2017 The American Prospect 109

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dig up in the historical archives.

Although Cole’s book appeared just as Donald Trump was emerging as the candidate to beat in the 2016 Republican primaries, and so is written for the ever-receding world of Hillary Clinton and Jeb Bush, it speaks to the many everyday people who raced to airports to protest the Trump administration’s travel ban, who began phoning representatives daily or showing up at town-hall meetings, and who generally feel that their country is at stake in the next four years. That feeling is part of what marks constitutional politics, whether it belongs to the Tea Party or to mobilized progressives. If Cole’s argument holds, these protests, along with a lot of other organizing and legal advocacy, will help to decide whether the federal courts go along with Trump’s nationalist attacks on civil liberties and basic legal protections, or defend and even expand the rights of dissenters and noncitizens.

Besides their political relevance and civic usefulness, Cole’s stories translate more than a decade of groundbreaking work by other legal scholars. In 2004, Larry Kramer, a legal historian, published The People Themselves, a study of the role of popular politics and direct mobilization in shaping and enforcing constitutional law. Since then, leading constitutional theorists have doubled as students of social movements and organizing strategies, producing illuminating studies of the constitutional politics of originalism, gun rights, marriage equality, and much more. The study and practice of law are infused these days with the kind of political selfconsciousness that Cole celebrates.

In choosing stories that emphasize citizen activism, Cole has left out important ways that the federal courts are anti-democratic and distinctly unprogressive, although not at all apolitical. In a series of issues, the Supreme Court has taken the right-wing side of intensely partisan disputes in ways that are harder to trace to a noble idea of constitutional citizenship than are Cole’s examples. For instance, there is the fight over the social safety net.

The Court’s 2012 ruling on the Affordable Care Act came within one vote of

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gutting the entire law, and crippled the Medicaid expansion that formed a key part of the ACA’s design. The reasoning behind this ruling was just as novel and unexpected—to put it gently—as marriage equality. It didn’t come from nowhere, but from Tea Party–style advocacy that objected to President Obama’s expansion of the safety net and pushed back in the courts after losing in the political process.

Then there is the question of race.

In 2013, the Court significantly weakened the Voting Rights Act, clearing the way for new barriers to voting, which Republican legislatures hurried to adopt. For decades, the Court has been on the brink of invalidating affirmative and race-conscious integration policies in public schools. The Court’s affinity for the center-right wing of American race politics reflects how conservative justices make constitutional law out of the Republican Party’s preferred interpretation of the civil-rights era: Martin Luther King Jr. and Brown v. Board of Education cleared up Jim Crow, and now we can all be judged by “the content of our character” and stop talking about structural inequality and the need to address race as an ongoing reality.

Courts have also turned the First Amendment into a doctrine that supports economic power as much as political dissent. Some of this change has happened in the arena of campaign spending. Although the 2010 decision in Citizens United gets the most attention, as early as 1976 the Court announced an extremely skeptical approach to campaign-finance reform. It is now constitutional law that the government may not try to “level the playing field” in politics by limiting political spending for the wealthy or even providing certain kinds of public-funding subsidies to their opponents. There is also a broader front in anti-regulatory First Amendment law. In recent decades, the Court has used the First Amendment’s free-speech protections to attack economic regulation and public-health laws, protecting pharmaceutical companies’ data collection and marketing strategies as if they were political speech, and striking down bans on alcohol ads near schools

Court decisions also reflect political power.

In today’s influence of movements on courts, Goliath sometimes defeats David.

and mandatory health disclosures on cigarette packaging. All of these constitutional defenses of private money and private business are, as much as Cole’s examples, the products of activism and mobilization, in this case by economic libertarians and Chamber of Commerce types (such as the National Federation of Independent Business, which brought the suit that nearly sank the ACA).

There are, of course, good-faith debates about all of these questions, as matters of policy and of constitutional interpretation. But what these cases suggest is that the Supreme Court is an intensely political institution even when citizen activism of the kind Cole focuses on is far from the center of the action. The most politically important constitutional rulings in recent years are not David-and-Goliath stories, but more conventional kinds of partisan judgments, in which powerful interests end up getting what they want from judges after losing—despite every advantage—in the political process.

It isn’t David Cole’s goal, in this valuable book, to answer the deeper question of when, exactly, a democratic society should want its courts to second-guess its elected lawmakers and when it should tell judges to stand down. But it is part of the question the rest of us confront. In the last century, progressives have had many different views about this question. Franklin Roosevelt’s supporters largely wanted the federal courts out of the way of their legislative and administrative reforms. The civil-rights era depended on federal judges’ willingness to wade into controversial arenas such as desegregation. Modern civil libertarians want the courts to be bold on abortion and gay rights, but allow Congress to legislate for voting rights and a strong safety net. Cole’s book tells us that in the age of Trump, when courts can seem at once indispensable to progressive goals and dangerous to them, threading the needle will be as much a matter of politics as one of principle.

Jedediah Purdy is the author of five books, most recently After Nature. He teaches at Duke Law School. He was in the Prospect’s first class of writing fellows, in 1997.

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Why Are Men Dropping Out of Work?

A new book highlights the decline of male employment. By Michael Hout b

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merica’s working man has taken a pounding over the course of the past half-century. According to the most recent data available, 15 percent of men in their prime working years (between 25 and 54) had no job—5 percent were unemployed and 10 percent were neither working nor looking for work. Fifty years earlier, in the summer of 1966, only 5 percent of men in that age range had no job.

Most of the decline in male employment took place relatively recently, during the Great Recession, when men’s prime-age employment fell 8 percentage points, from 88 percent in the spring of 2007 to 80 percent in December 2009. Since the bottom of the recession, prime-age men have regained 5 percentage points, reaching 85 percent employed in the most recent data.

Nicholas Eberstadt, a demographer at the American Enterprise Institute, sees this as an “invisible crisis” that urgently needs the nation’s attention.

Eberstadt’s rhetoric runs high, but he is right to bring attention to employment trends. American culture measures men’s contributions to society in proportion to how hard they work, and most Americans embrace the idea that men’s worth is tied up in what they do for a living. Meanwhile, public policy insists on work. Laid-off workers in most states have to produce evidence of job applications in order to collect their unemployment insurance; mothers have to agree to look for employment when they apply for welfare (Temporary Assistance for Needy Families). With this kind of cultural and policy pressure, it is shocking to learn that 10 percent of prime-age men were neither at work nor looking for work in the fall of 2016. Whether they are idle, injured, criminal, or merely working under the table, they are more numerous than just a decade ago and deserving of public attention

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for what it tells us about our economy and society.

The question of why more men are jobless is a variant of “Did they jump or were they pushed?” The answer is far from obvious. Job growth had been robust for most of the past three years, clearing out the “discouraged workers” of the Great Recession. That suggests many jobless men “jumped.”

Eberstadt thinks so. He believes the choices were voluntary and uses words like “hiding,” “flight,” and “idle” in provocative chapter titles, padding his argument with several dubious statistical comparisons. For example, he compares employment among 20-to-64-year-olds in 1930 and 1940 with their employment in 2016, arguing that work rates for men are lower today than in the Great Depression.

But far more 20-to-24-year-olds are now enrolled in college, and employer-provided pensions and Social Security enable more 55-to-64-yearold men to retire early. We can’t assume men prefer to be idle.

Illness and injury may contribute to joblessness among men of prime working age. The economist Alan B. Krueger estimates that 43 percent of prime-age men who were out of the labor force struggled with what they described as “poor” or “fair” health, 34 percent had a condition that interfered with daily activity or cognitive functioning, and 18 percent had more than one such condition. Half reported pain; 43 percent were taking pain medications.

Two other factors, recessions and incarceration, are critical to the case that prime-age men have been pushed out of work. According to my own research, hard times have been harder on men than women at least since the 1970s. The American economy has suffered seven recessions since 1970.

Predictably, American men’s primeage employment has fallen during each one. Although most men have returned

Men Without Work: America’s Invisible Crisis

By Nicholas Eberstadt

Templeton Press

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to work after each recession, men’s employment has not returned all the way to pre-recession levels, even during the longest growth periods. Each succeeding recession has dropped men’s employment a little lower.

Mass incarceration has added to men’s work woes. Men disappear from the data while in prison, but their struggles upon release contribute to the trends that Eberstadt discusses.

Ex-felons face grim odds in the job market. Rebuilding a life after prison would be daunting if employers were merely indifferent; most employers aggressively weed out ex-felons. Men returning from prison face background checks and scrutiny when they are lucky enough to get a callback from a prospective employer. Eberstadt walks the reader through the difficulties in estimating the scope and scale of this problem. He then concludes that mass incarceration accounts for both why the United States has a higher proportion of prime-age men out of the labor force than other countries do and why American men’s labor force participation has fallen more than American women’s since 2000.

The analysis is interesting, but to me it works strongly against Eberstadt’s view that men are fleeing work. Discrimination against ex-felons is a push factor. The more the aftermath of incarceration matters, the less likely it is that out-of-work men need new incentives to seek employment. Perhaps they need remedial education or training. They almost certainly need advocacy and legal protection.

How do men without work survive?

Most rely on family. Their employed wives, cohabiting partners, and sometimes even grown children support them. Many get benefits from federal and state programs, but the government does not know how many do so. Each program keeps records, but since the records are not linked, the government and researchers have a hard time estimating how many men get benefits from multiple sources or how many men are left out of all programs. This is the strongest and most original part of Eberstadt’s book.

Eberstadt asserts that falling employment reduced economic growth, exacerbated inequality, and

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increased public debt. I think he has the first two backwards. Fleeing workers did not precipitate recessions; recessions pushed those men out of the workforce. Inequality did not come from voluntary pay reductions by idle men; it came about because capital now reaps the rewards of whatever growth occurs. And disability programs, which replace only a fraction of the wages sick and hurt men have lost, are not a major factor in public debt. Manual work in the service economy damages joints, backs, and heads just as manual work in the higher-paid industrial past did.

If there is fraud, find it and prosecute it. But if not, employers’ and employees’ contributions to Social Security disability insurance should be raised to meet the needs of the disabled.

Public policy should offer incentives to those who have left work and a path back to legitimate employment for those blocked by a criminal record or discrimination. The best incentives are a choice of jobs and rising pay. Until recently, the U.S. economy created about 200,000 jobs a month while wages stagnated. These trends increased prime-age men’s employment ratio from 81 percent

Public policy should offer incentives to those who have left work and a path back to legitimate employment for those blocked by a criminal record or discrimination.

in September 2009 to 85 percent in October 2016, according to the Bureau of Labor Statistics. Unemployed men (those without a job and looking for work) found employment, but prime-age men’s labor force participation fell slightly from 90 percent in September 2009 to 89 percent in October 2016. The increases have all been so recent that we can only say that they did not immediately increase labor force participation.

As states release more men from prison, both ex-felons and would-be employers will need a way to come together. Opening the gates and setting the former inmates free will not, by itself, create demand for their labor.

Matching men released from prison with employers willing to hire them will be a challenge. Most prisoners have only a high school education or less.

While some earn credentials in prison, most will need a way to demonstrate that they are ready, willing, and able to work, and a third party to vet them.

When Eberstadt gets to his policy recommendations, his often-original book gets conventional and familiar.

He pushes tax and benefit cuts and is vague on the path that might lead from tax cuts to higher employment.

The argument is too thin to convince anyone who does not already believe in tax cuts as an all-purpose fix. Evidence from a state where tax cuts worked would help here. My casual reading suggests that Kansas’s crumbling state economy contradicts his argument, as does California’s ongoing boom.

Cutting benefits could spur men who are faking disabilities to seek work, I suppose. But Eberstadt shows no evidence that men on disability are cheating. If they are suffering as much as Krueger’s data indicate, cutting benefits would harm men who need help without changing employment trends.

Eberstadt is right to point to a serious issue, but to make progress, we need to calibrate the scope and scale of the problem correctly. A 10-point drop in men’s prime-age employment ratio from a historic peak is consequential, but hardly the “death of work.”

Eberstadt and I are demographers.

We write with numbers and think our graphs are pictures. We can talk to each other in this language. But when I read the data, specific people come to my mind. One is a guy who, in the 1990s, hoped to ride the dot-com boom to a six-figure income. Obsessive computer coding led to overmedication and, now, disability checks. The other is a neighbor who fought in the first Iraq War. He leans on his walker down by the bodega and talks to any passerby who will listen. People-youknow is a lousy sample, but their stories make me doubt that men out of work chose their path.

We have to respond to falling employment among working-age men, but we cannot rely on the usual prescriptions. The idle among them need incentives, the injured need care, and the formerly incarcerated need just one employer willing to give them a break—and maybe some legal protection to make that break more likely.

Michael Hout is a professor of sociology at New York University. Since 2012, he has written annual updates on labor force participation for the Stanford Center on Poverty and Inequality’s “State of the Union” series.

volume 28, number 2. The American Prospect (ISSN 1049-7285) is published quarterly by The American Prospect, Inc., 1225 Eye Street NW, Suite 600, Washington, DC 20005. Periodicals-class postage paid at Washington, DC, and additional mailing offices. Copyright © 2017 by The American Prospect, Inc. All rights reserved. No part of this periodical may be reproduced without the consent of The American Prospect, Inc. The American Prospect ® is a registered trademark of The American Prospect, Inc. Postmaster: Please send address changes to The American Prospect, P.O. Box 421087, Palm Coast, FL 32142. printed in the u.s.a.

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Trump’s Actions Speak Louder Than His Words

By Randi Weingarten, President AMERICAN FEDERATION OF TEACHERS here are many theories about how Donald Trump was elected president. One explanation is to take a saying that Trump is fond of and flip it: Many Americans had lost so much—decent jobs, a secure retirement, their homes, and the confidence that their children will be better off than they are—they got tired of losing and took a chance on a candidate who promised to be on their side. But Trump’s pledges on the campaign trail—to create 25 million good jobs, help working-class Americans get ahead, and end the days of “hedge fund guys getting away with murder [while] the middle class are getting absolutely destroyed”—are taking a back seat to the interests of Wall Street, the wealthy and the far right.

Sen. Charles Schumer (D-N.Y.) noted that it took only an hour on Inauguration Day for Trump’s “populist words delivered on the steps of the Capitol to ring hollow.”

Minutes after he was sworn in, Trump overturned a mortgage fee cut, making it harder for low-income Americans to buy a home. Just weeks into his presidency, he made it easier for Wall Street to prey on people’s retirement savings and, while surrounded by Wall Street bankers, signed an executive order gutting Wall Street reforms enacted after the Great Recession.

are pushing a healthcare plan that would cause millions of Americans, including millions of children from low-income families, to lose access to healthcare through the Affordable Care Act and the Children’s Health Insurance Program.

While, in a victory for workers, Andrew Puzder withdrew from consideration as secretary of labor, other key confirmations remain, notably Neil Gorsuch for a lifetime appointment to the U.S. Supreme Court.

People for the American Way describes Gorsuch as a “judge who has dependably acted to protect the interests of big businesses at the expense of ordinary Americans.” Among the examples PFAW cites is the Hobby Lobby case, in which Gorsuch ruled that corporations are people and so can use their religious beliefs to deny employees insurance coverage for contraception.

And, in the “freezing trucker” case—in which a truck driver was fired after he left his disabled vehicle to find help and escape subzero temperatures—Gorsuch again sided with the corporation rather than the employee.

We’ve never seen anything like the Trump presidency. The administration’s strategy to flood the zone with Twitter

attacks, alternative facts and appalling executive orders is dizzying—and that’s the point. Trump wants us to be off balance. He wants to do what he wants, without checks and balances. But that plan has been disrupted by a citizenry that is rising up to be that check and balance. From the 5 million callers who overwhelmed the Senate switchboard to protest DeVos’ nomination, to the worldwide women’s marches, the hundreds of actions across the country in support of public education, airport protests of the travel ban, and Jews and Muslims rallying together to say “Never again!”

True populists listen to the people. Instead of repeating the preposterous claim that he is the voice of the people, Trump should listen to what we’re saying. We want real economic opportunity. We need affordable, high-quality healthcare. We support good neighborhood public schools. We cherish freedom and pluralism.

And we will stand up against hatred, discrimination and bigotry. Until January 2017, most Americans had only been spectators to dire assaults on democracy.

Given the real and present threat, we’ve become active participants in its defense and fortification.

Until now, most Americans had only been spectators to dire assaults on democracy.

Photo by Michael Campbell

When he accepted the Republican nomination, Trump said he would deliver for the “forgotten men and women of our country”—laid-off factory workers and communities crushed by the shifting economy. The penthouse populist audaciously claimed: “I am your voice.” But there is a big disconnect between what Trump says and what he does. Tick through his advisers, Cabinet choices and Supreme Court nominee, and there’s nary an advocate for the working-class voters Trump courted. He has surrounded himself with a who’s who of businesspeople and billionaires who have amassed huge wealth by outsourcing, cutting and automating jobs, and slashing workers’ salaries, pensions and health insurance—elites who have prospered as America’s “forgotten men and women” have fallen further behind.

Treasury Secretary Steven Mnuchin made a fortune foreclosing on homeowners like a 90-year-old woman who was targeted for a 27 cent payment error. Wilbur Ross, the secretary of commerce, has been called a vulture investor for squeezing profits from troubled companies by slashing jobs and gutting pensions. Trump’s secretary of education, Betsy DeVos, has spent decades—and many millions— lobbying to destabilize and defund public schools in order to expand for-profit charter, virtual, private and home schools. Secretary of Health and Human Services Tom Price was confirmed despite concerns over his practice of introducing legislation to benefit companies he has invested in. And the administration and GOP leadership

Photo by Matthew Jones

Weingarten with the Rev. Dr. William Barber at the Moral March on Raleigh, N.C., on Feb. 11.

Follow AFT President Randi Weingarten: www.twitter.com/RWeingarten

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