What Progressives Can Do by Jason Gottlieb by Jodi Miller Design

CO TH NCR OF E FI ETE OU GHT ST R N FO EP AT R T S FO ION H EF R UT UR E

PR AN OG WH R DO ES AT SIV ES

JASON GOTTLIEB

What Progressives Can Do Our next president will be the least prepared, least qualified, least capable president in American history. The checks on him will be frightfully few, with Congress in the hands of a Republican party willing to tolerate racism, kleptocracy, and incompetence in the White House as long as they get their policy way. So what should progressives do now, and for the next four years? Letâ&#x20AC;&#x2122;s explore some ideas. Feel free to share widely (with attribution, please). Obvious disclaimer: these are my views and mine alone.

Part 1: Immediate Opposition to the Cabinet Trump will undoubtedly try to make some splashy first policy steps to grab the national conversation. Congressional Republicans are planning huge changes for their first 100 days. This momentum must be derailed, and the conversation must be changed, to Trump’s terrible picks for the Cabinet. Senate Democrats should make the Cabinet confirmation hearings mustsee TV; a platform for the insanity of these picks. The next 100 days should not be about what terrible laws Republicans can push through, but about declaring opposition to the slash-andburn governance that Republicans want to force down the throats of a majority that did not vote Republican. Trump’s picks — almost all of them — should be grilled at length. Cross-examine Rex Tillerson about Exxon’s history of funding false research on climate change; his dealmaking in Russia, Venezuela, and many other unsavory countries; and his views on Israel given that he’s had a history of cozying up to the oil-producing Arab countries. Ask Mike Flynn about his nutty conspiracy views (like Obama birtherism!), his desire to go to war with Islam, his revealing confidential info to Pakistan. Ask DeVos at length about how she wrecked Michigan’s school system. Ask Carson about his complete lack of experience in housing policy, with detailed questions about how he would handle longstanding issues. Etc. etc. By the way, all you talented litigators out there — if you really want to put your talents to use, don’t just call Senators and urge them to vote no. Write a cross-examination of a cabinet pick (with supporting evidence), and send that to your Senator. Make it easy for them to put on a show! America loves a good Law & Order Sam Waterston-style cross-examination; let’s give it to them. To be clear, these picks are very, very likely to get confirmed eventually anyway. The Republicans have the votes. But make the Republican Congress own these picks. In particular, pressure the few sane Senate Republicans to vote no — put the spotlight on them. Press on their particular issues. McCain isn’t likely to run again; appeal to his sense of patriotism and courage. Some are more moderate; Collins or Portman or Graham might be convinced to reject some of the most crazy. Some are from more closely divided states with a big working class who wanted to drain the swamp; maybe Ron Johnson can be persuaded that he shouldn’t abandon the white working class voters that supported him (though I’m probably kidding myself on this one). Appeal to Rand Paul’s libertarianism and suspicion of Russia. Make clear to these few senators who are persuadable that if these nominees are approved, they own it. Tie them to it, and never let them forget it. (More on “pressuring politicians wisely” below.) Pick one or two nominees to fawn over and approve. This is partly showmanship, so we can argue “no no, we will approve normal picks; it’s just the crazy ones we oppose.” But also partly because some picks are actually pretty decent. I dislike a very recent ex-military guy for Defense, but Mattis isn’t so bad, as Trump picks go — he’s educated, well-read, experienced, and as a bonus, he opposes torture, and apparently got Trump to come around on that issue. We could do worse. Most importantly, take sweet time. Like months. Don’t worry about Republicans trying to cut you off, or impose time limits. You’ve got a witness there in front of you — you ask all the necessary, brutal questions until they answer and are held accountable for those answers. Under oath.

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If the process takes days or even weeks to fully explore the issues, for each candidate, fine. If the GOP tries to cut off the hearings, keep talking. If they cut off your mike, bring a bullhorn. If they cut off the cameras, keep going on Facebook Live. If they make Facebook Live against the rules, which they are literally trying to do, keep using it. Film it all, and disseminate that video widely. Make the point to the public that the GOP is trying to hide their extremism, and prevent the American public from hearing a full vetting of these candidates, but the American people have a right to know what the GOP is trying to hide, and Members of Congress have a First Amendment right to broadcast their political speech. If this takes months, great. Because even if they all get confirmed eventually, for those months before they can get into their positions and start to dismantle their agencies, the executive branch will be left in the hands of the competent career civil servants who are there now. The more time we buy for that, the less time there will be for destruction, and the better off the country will be. (All of life is a play for time, really. The next four years will be especially so.) And who knows, maybe public opinion turns against these picks sufficiently that we can pick off one or two or more, and we don’t put radical anti-government anarchists in charge of government agencies. This is what opposition looks like: opposing bad things, vociferously.

Part 2: Appoint the Judiciary, Now: Rethinking Political Norms About 280,000 civil cases and 60,000 criminal cases a year are filed in federal District Courts. Between 50,000 and 60,000 cases a year are appealed to the Courts of Appeals. There are about 7,000 petitions to the Supreme Court each year, out of which only about 80 get heard. So the lower federal courts are utterly vital. Most justice (at the federal level, anyway) is done in the District Courts, and the Courts of Appeal are the last resort for an overwhelming number of cases. The stakes in the lower courts could not be higher when it comes to basic civil rights. Every single new unconstitutional abortion restriction that will be passed will be challenged in the District Court. Every new unconstitutional law accepting or approving discrimination against gays, or deportation of Muslims or barring Muslims entry to the US. Every law OKing “stop and frisk” based on racial grounds. Every state government attempt at restricting voting rights and drawing unbalanced, gerrymandered districts. Etc., etc. To safeguard individual rights, it will be vital to ensure that as many of those judicial openings are filled by people who actually care about rights. Some of the judges Trump put on his shortlist for the Supreme Court are in the “conservative but sane” bucket. But his picks for Cabinet and advisers bode poorly for the people he would pick.

As of December 31, 2016, there are 16 open seats on the US Courts of Appeals; 83 open seats on the US District Courts (with 2 more opening up before inauguration day on January 20), and of course 1 open seat on the Supreme Court. Also there are 6 open seats on the Court of Federal Claims and 2 on the Court of International Trade, the latter of which will be more significant given some of Trump’s insane trade policy ideas. There were nominees pending for many of these seats — 7 nominees for the 13 Court of Appeals seats; 44 nominees for the 83 District Court seats, 7 for the 8 open Trade/Claims seats, and of course Merrick Garland for the Supreme Court. These nominations expired January 3 at noon, with the passing of the old Congress. The Republican-led Senate, which has a constitutional duty to “advise and consent” to the President’s nominees, simply sat on all of them. Obama should — he won’t, but he should — declare all of these nominees duly renominated and appointed, effective immediately, on the theory that by not voting on them, the Senate tacitly approved them, or at least waived its rights to vote, by not voting on them. As for the remainder of the open seats, Obama should announce nominees for all of them, immediately. It should not be hard to find good, qualified people for the other open seats. (Sure, I’ll take one of the Eastern District of New York open seats, thanks for asking.) Obama should simultaneously announce that if the Senate doesn’t vote by January 19, he will declare them all duly appointed effective the morning of January 20. (Before noon!) This will put the Senate in a bind: either they affirmatively vote against all these nominees (thus taking up time in which they could be doing other bad things), or they simply declare Obama’s act unconstitutional and invalid, and fight it in the courts. But Obama should get to the courts first to grab a “home field” advantage. He should file a declaratory judgment action in the District Court for the District of Columbia that he has a constitutional right to make these appointments. Whichever side loses at the District Court will appeal to the Court of Appeals for the D.C. Circuit — which is 7-4 Democratic appointees. A party-line vote in an en banc court will favor Obama’s plan. Appeal to the Supreme Court? Sure, go ahead — a 4-4 tie would leave the D.C. Circuit decision intact. (Presumably, Garland would recuse himself at the Supreme Court — but there are no recusal rules for Supreme Court justices, so he could actually vote as well, making it 5-4! That would look terrible, since he would clearly be conflicted. But we seem to be in hardball power-politics land here anyway.) It’s possible that the judges on the D.C. Circuit, with their eyes on posterity and maybe a future Supreme Court seat, will strike down the plan as going too far, or interpreting the “advise and consent” clause to mean that the Senate must affirmatively consent (rather than consent via waiver). But who knows. And what’s the worst case scenario? Well, actually, a very bad outcome is possible: if the picks are invalidated, every single decision made by any of these judges could be subject to appeal or invalidation. That would be a giant administrative mess. But the fact that decisions would be subject to challenge is also actually a reason that they won’t be challenged en masse. You think every business wants to have the cases they win in the interim re-tried? (And they win more than they lose.) You think “law and order” types would be happy with every criminal convicted or sentenced in the interim getting a fresh shot at a new trial? (And the conviction/plea rates are very high, so on the criminal side, invalidating judicial

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picks would mostly be giving convicted criminals fresh trials.) Emergency motions for the courts to hear these issues will reduce the problems somewhat, and it’s possible that lower courts could stay the actions so that the new judges are never seated. But it’s also possible that justice will move on in the meantime — the new judges won’t be enjoined, and they will take the bench and start issuing rulings. Republicans will complain vociferously about this historical violation of political norms, but … what could they do? Try to arrest federal judges for showing up to work? Defund the positions? Even if so, they’d later have to re-fund them, which would be more work for them, and slow down the process of benching highly conservative judges. Every legislative act required of the GOP is another chance for Democrats to fight, and another day forestalling even worse legislation. The other bad outcome could be … setting a precedent, I guess. But what’s the precedent, really? That the Senate has a duty to consider nominees and vote? Isn’t that already what they’re supposed to do? That President Trump (or some future president) could, at the end of the term, fill all the open seats the same way? Isn’t that what is supposed to happen? And what will happen, anyway? So it’s hard to see a true downside. The worst that happens is … we wind up back where we started, at the status quo, having taken up a lot of time and energy, but having forestalled bad law for that length of time. As I said, sadly, Obama probably won’t do this. He’s more concerned with legacy and history at this point, and so he’s trying to take what he perceives as the high road, and not create a total administrative mess of confusion. And anyway it’s probably too late — he should have done it months ago, and if he doesn’t do it immediately — like, right now — it won’t work. So as fun as it is to dream about, it’s not going to happen. (Even if, in my view, Obama’s legacy will take a worse hit if his regulatory regime is handed on a plate to new hyper-conservative judges; his accomplishments are at risk of being erased.) So if this isn’t going to happen, what’s the point of all this digital ink for in-depth analysis? There’s a larger point. It is time to take creative and aggressive measures to protect the rights that are about to be stripped. Political norms may require a fresh look. If the so-called “conservative” party isn’t willing to conserve, to maintain political norms in order to destroy government, progressives should not be overly reverential of political norms that impede good government and the protection of civil liberties. “This is the way we’ve always done things” is no longer a good enough reason to keep doing them that way. One party is proposing to allow overt discrimination against gays, deporting or barring people on religious grounds, and unconstitutional searches and seizures on racial grounds. Not to mention national abortion bans, eviscerating Medicare, Medicaid, and Social Security, etc. So this is not a normal situation. I am a center-left moderate by nature. (And a very business-friendly one at that!) I wouldn’t push the envelope of political norms with aggressive moves in order to, say, change a marginal tax rate by a percentage point. But it’s well worth pushing the envelope to protect the fundamental constitutional liberties that make America America.

Part 3: Better Messaging The GOP used Pavlovian, Orwellian tactics with “Benghazi” and “email,” to the point that rightwingers, and even lots of moderates (and far leftists!) would hear “Clinton” and instantly trigger “Corruption.” It ended conversations, and closed some minds that may have been open. Sad to say, the GOP’s messaging campaign succeeded. There’s nothing wrong with messaging, if it is accurate. The name “Trump” should trigger immediate thoughts of “corrupt con man, stealing my money, nobody likes him, he’s only president because of Russia.” These associations are all true. And drilled in properly, they will make differences at the ballot box. Specific messages: 1. Trump has no mandate. This theme will undermine his policy proposals; conveying that his policies are contrary to the will of the people. Let’s face it, a Trump presidency is “legitimate” from a legal sense. He won under our rules. But still. Putin interfered in the elections in favor of his preferred candidate. The FBI interfered in the elections by violating its own protocol and federal law in making scary-and-important-sounding pronouncements during open voting that in actuality were nothingness. A Republican Congress investigated Benghazi and emails nonstop to delegitimize and tar Clinton, and a poodle press felt compelled to cover “both sides” of that issue. She still won the popular vote by 2.8 million (2%). Yeah yeah, it’s not a popularity contest; she should have done X and Y in Michigan; but her emails. Bleah. Treating this presidency as legitimate is an important step towards normalizing it. It is not normal. Do not normalize. So: “Trump lost the popular vote by 3 million votes.” “Trump lied about how many votes he got.” “Trump: least popular president in history.” “Trump won because Putin hacked the election for his buddy.” Remind him, and the country, constantly, that he is not the majority’s choice. Don’t get tired of saying it. Don’t give up after a couple of months. He has no mandate to do the ridiculous things he has proposed. Don’t let him forget that. The vast majority of Americans did not vote for him. “America does not want his snake oil” should be a theme, drilled in daily and deeply, for four solid years. 2. Trump is a con man. This theme can succeed with exactly the people the Democrats need to win back. The main theme for 4 years should be to convince a very large and convincible group that Trump’s policy is disastrous, because it’s a con. Trump is lining his own pockets, and the pockets of his ultra-rich friends, and the expense of you, the working class regular American. He’s screwing you and laughing about it. He isn’t bringing back your jobs. He isn’t making you “great again”. He’s a corrupt thief, lining his own pockets (and his friends’ pockets) with your tax dollars. He’s not draining the swamp like he promised; he’s raining the swamp down on you. This is a hard message to get through, honestly. People hate to admit they’ve been conned. But once that message penetrates — and it will, once folks realize he’s doing nothing for them — it will stick. 3. Trump is incompetent. He can’t get anything done right, and when he fails, he just lies about it and claims victory. Trump lied about Carrier, and they’re still moving jobs to Mexico.

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He lied about Ford — still moving jobs to Mexico. Trump is going to fail, repeatedly, because (i) that’s his historical record, and (ii) he has no idea what he’s doing. When he fails, he will lie about it. Call him out, every single time: Trump failed, and he lied about it. Obviously if he is very successful and the country does well, this message is harder … and I really hope that will come to pass. But. 4. Trump surrounds himself with terrible people. His chief strategist is a white supremacist, anti-Semite, and misogynist; don’t let the country forget that! Any story about his cabinet and advisers should mention it. Doesn’t matter if they leave, get fired, etc.: he should always be known as the guy who installed a white supremacist as his chief strategist. Every single bad pick should be stuck to Trump. Most of his picks are incompetent hacks, and when they screw up — and they will — the whole nation should be immersed in “Heckuva job, Brownie” moments. Even strong Bush supporters abandoned him after Katrina. Trump’s motley crew won’t need acts of God to expose their incompetence; they’ll get there quickly themselves. All this “messaging” seems fuzzy, like hashtag advocacy. Or cheap, like slapping on a “I’m Lovin’ It!” logo instead of making an edible hamburger. But messages stick. Even if it’s tough to gauge the tangible impact, messaging is vital. There’s a reason McDonald’s spends so much on advertising. It works. But how best to affect and control that message?

Part 4: Controlling the Headlines The so-called mainstream media is still a huge influencer in this country. Network TV news, the New York Times, Washington Post, Los Angeles Times, Reuters, AP, and major cable news (CNN, Fox, MSNBC) are instrumental in conveying messages to the majority of America, whether they know it or not. And while some reporters were great during the election, most media outlets as a whole failed miserably, understating negative facts about Trump’s conflicts, history, inconsistencies, and lack of ethics, and failing to call his lies out for being lies. The media overemphasized Hillary’s emails at the expense of (say) the fact that Trump appointed a white supremacist his campaign manager, and fell victim to a terrible impulse toward false balance, simply reporting what each side said, rather than examining whether those statements made any sense. As their first act of a new Congress, the House Republicans voted initially to gut a Congressional ethics watchdog. This vote was widely reported in the media, in very negative terms. A half-day of terrible headlines forced Republicans to shelve the plan. I have seen credit given to people calling politicians’ offices. As the saying goes, it’s pretty to think so. But (as I’ll discuss below), there’s no chance whatsoever that actually mattered. What mattered were the headlines. Every single one was pointedly negative (as they should have been). Not a single headline was “neutral” (“Republicans Reorganize Ethics Committees”) or “positive” (“Republicans Make Congressional Offices More Streamlined

and Efficient”). No stories bothered with attempting “balance,” which was the right call, and should be the right call far more often. Headlines matter — it’s most of what anyone ever sees, and it makes the most impact. The House Republicans knew, after that flurry of headlines, that there was no way to spin this move well. They didn’t backtrack because they decided to be ethical after all. Without the headlines, they would not have backtracked. Look at the presidential polls throughout the campaign: headlines move public opinion. When the headlines addressed Clinton trouncing Trump in the debates, her numbers moved up, and his down. When the headlines were Trump bragging about sexual assault, his numbers moved way down. But when the headlines were about Clinton’s private email server, or leaked emails from the DNC (stories that the media let get conflated), her numbers moved down — even though nothing about Trump had changed. As we know, razor-thin margins made a difference, and are likely to continue to make a difference. Actual news can move headlines, like the debates, or the sex assault tape. But sometimes actual news doesn’t make the headlines. If Obama had appointed a black supremacist as his chief strategist, you could bet that news would dominate the headlines for months. But somehow Bannon’s appointment has disappeared from the headlines. Folks, that should be news. Every single day is another day where Trump’s chief strategist is a white supremacist whose publicly stated mission is a “Leninist” transformation of government. His words, not mine. But it’s not news anymore. It’s unlikely to return to the headlines. A bit crazy; it seems far more important than some of the other things on CNN’s main page right now. (As of this writing: “The ‘new’ organ you didn’t know you had”.) Sometimes stupid things move headlines. James Comey’s announcement that the FBI was going to look at another computer moved headlines — and polls — for days, during open voting, when it was a nothing of a story. Reading through the stories, an intelligent reader could see that, but the headlines were “FBI Chief Investigating Hillary’s Emails,” and that was enough to doom her. To be fair, sometimes the media gets it right. As of this writing, ABC News’s front page: “Despite Promise, Trump Divulges No New Election Hacking Details” and “Trump’s Mockery of Intelligence Agencies Could Undermine Their Relations”. (That latter is understatement, but still, more or less correct.) Given Trump’s record, virtually all headlines should be “Despite Promise, Trump …” or “Trump Says X, Which Is False.” Headlines are critical. How to affect them? All of those journalists and editors who write the stories and headlines are on Twitter. All of them. Many news outlets’ public editors are there as well. This is the single best way to have direct access to the people who perpetuate the messaging. Go find them, follow them, and every single time a “false equivalence” headline runs, tweet back at them that the headline is wrong, and suggest another. Every time a news outlet reports a Trump claim without analysis (“Trump: I Saved 3,000 Jobs at Carrier”), tweet back at them that the headline is wrong, and that they are doing journalism a disservice by merely parroting Trump’s ludicrous claims. Don’t be obnoxious. But be persistent. And be “straight,” as good journalists should. Don’t suggest that the “right” headline is “Trump is a Con Man” (he is, but that isn’t really a hard news headline), but rather that the right headline is “Trump Assertions on Carrier Factory Exaggerated / Most Jobs Moving to Mexico.”

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Journalists are people, and I truly believe (maybe naively) that most in the mainstream actually want to get the story right. Repeating the truth to them, and pointing out when they are falling into Trump’s messaging, will help nudge them toward more truthful headlines and coverage — even unconsciously. That more truthful reporting will lend more power to the overall messages: Trump has no mandate; Trump is a con man; Trump is incompetent. Simple messages, which can be drilled for the next two years, and which will move headlines in the right direction. Headlines stopped one GOP unethical power grab. They can stop a lot. The midterms are around the corner, and in the meantime, we have to save Social Security, Medicare, 25 million people’s health care under the Affordable Care Act, gay rights, civil rights, freedom of speech, and sensible environmental regulations. The headlines can read “Republicans Plan Vote to End Obamacare,” or “Republicans Plan Vote to Take Health Insurance Away from 25 Million Americans”. Both equally accurate, both hard news, but one is obviously more accurate in conveying the true impact of the action, thus getting to the heart of the news. Go forth and tweet at the media. Remind them that they are not Pravda; they are not a mouthpiece for the administration. They are journalists, witnesses to history. They should not convey what is said or promised; they should convey what is.

Part 5: Pressuring Politicians Wisely There have been a lot of “call your representative” campaigns lately, imploring you to flood the phone lines of your elected officials giving them your opinion. The vast majority of Congresspeople do not care one bit about your phone calls or emails or Facebook posts or tweets. Paul Ryan could get 4 billion calls between now and January telling him not to push a tax cut for the rich, and not to cut Obamacare. He’s going to push a tax cut for the rich and cut Obamacare. Anecdotally, I worked very briefly in a local field office for a Congressman. (This was a long time ago, so take with a grain of salt.) We logged and reported all calls. But fundamentally they didn’t matter all that much. The Congressman was pro-choice; his district was overwhelmingly pro-choice; the party was pro-choice. We got a lot of calls from organized pro-life groups. These campaigns did not move the needle one little bit, even though they overwhelmingly outnumbered pro-choice calls. Congresspeople know their districts; they know where their bread is buttered. A solid red Rep in a solidly red district isn’t going to care that you don’t want him to ban abortion. There are some exceptions. About 10% of Congress do not have perfectly safe seats. Those are the ones who may be susceptible to pressure. Here’s a list of some key House reps who may be in this category: https://ballotpedia.org/United_States_Congress_ elections,_2016#tab=House_battlegrounds Also, there are a (very) few senators (Collins, Portman, McCain, Graham) who MAY stand up from time to time. Not always, since they are Republicans so they agree largely with some of the Ryan agenda. Don’t count too much on them; you’re likely

to be disappointed. But they may be a line between normal conservativism and Republicthreatening insanity. Short summary: don’t bother writing Ryan or McConnell (or Schumer) — they’re safe, and they’re gonna do what they’re gonna do. Target the very few where it may make a difference. Look, I have no objection to trying to influence Paul Ryan by flooding him with calls. Couldn’t hurt, if you have the time. And I’m a big fan of what Dahlia Lithwick calls “yes, and” opposition — yes, we can make phone calls AND do other things. Just don’t be surprised when the calls don’t move the needle for the vast majority of Congresspeople, the vast majority of the time. If you have limited time to spend on these efforts, spend it wisely. Also: town hall meetings are the best forums. It’s easy for Congresspeople to allow their staff to screen calls and emails, and remain completely insulated. Try to go to town hall meetings when your representative is in town, and light that up. Make them personally feel your passion. (And record it! And let them know it’s being recorded!) Pressure them live, and on tape. Be polite, but be relentless, and personal. Ask your Congressman face-to-face why they want to kill the health insurance that saved your life (or your mom’s, or your neighbor’s, etc.). Face to face contact is, sadly, the only way for us little people to break through to the few who are remotely persuadable. And sadly, it is increasingly rare, as Reps grow more and more insulated from the consequences of their votes.

Part 6: State AGs Take the Lead Texas’s former Attorney General and now governor Greg Abbott said his job as AG was to wake up, go to the office, sue the federal government, and go home. Democrats (like New York Attorney General Eric Schneiderman) should strongly consider that model, only protecting rights instead of trying to eviscerate them. State AG offices should turn “states’ rights” on its head -- to protect individual rights rather than how “states’ rights” was traditionally used by conservatives, which was to protect states’ rights to screw minorities. At a recent New York County Lawyers’ Association event, Schneiderman pledged to take action “IF” (he stressed “if”) such measures come to pass. They will come to pass, and he knows it. California has already hired former AG Eric Holder to take the lead in this effort, and former Representative Xavier Becerra is the new California Attorney General — so the biggest blue states are on board. New York can and should sue the federal government if there are any federal restrictions on abortion; if there is any federal impingement on gay rights (marriage, adoption, antidiscrimination, etc.), as any of these measures would infringe the rights of New Yorkers, and infringe the right of New York as a whole to set its own local policies. Think about it: if Congress votes to repeal Obamacare, or privatize Medicare or Social Security — these are benefits that millions of New Yorkers and Californians and Massachusettsians have come to rely on, basing their health care decisions, their retirement planning, etc. on

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these programs. Taking them away now would be a deprivation of rights. New York should stand up against that, litigating to the end. Further — and this is important — Trump may be effectively immune from everything but impeachment. But that immunity does not necessarily apply to the folks around him. Politicians can be brought down if they do illegal things. And his non-governmental advisers are even more susceptible, as they will not enjoy the same sort of qualified immunities. His “private security force” is a pile of lawsuits waiting to happen. If they use excessive force, they will not enjoy the same protections that the Secret Service does. Keep an eye on Trump’s children, cronies, and hangers-on. If they commit illegal acts, they can and should be prosecuted. The DOJ will soon be under the control of a Trump pick, but, State AGs will have jurisdiction over certain matters. And local offices may have jurisdiction as well -- the New York County District Attorney’s office has fairly broad jurisdiction over financial crimes with a nexus to Manhattan — which is pretty much everything financial, given the centrality of the banking system. The United States District Courts for the Southern District and Eastern District of New York, as well as the Second Circuit Court of Appeals, are dominated by Obama appointees. Those judges may do what a Texas federal judge recently did in the immigration case — issue nationwide injunctions against the federal laws from being enacted. (Maybe they won’t go that far. But you don’t know if you don’t try.) Sure, these cases might go to the Supreme Court, and the progressive cause might lose, especially after Trump installs that fifth conservative vote. And as Trump installs conservatives into the dozens of open seats around the country (and through the natural turnover on the bench), the courts as a whole will become more conservative. But for now, there are a lot of Democratic-appointed lower court judges; the Supreme Court can’t take up every case; and if the litigation lasts long enough to get to a new President, who knows what might happen. Blue state AG offices (and in some cases local district attorney’s offices), and the federal judges in those states, are the last line of defense left against a President and Congress that is proposing to undermine people’s rights. What can you do? Don’t just petition your politicians. Petition your attorney generals as well. If you see violations of rights, consider whether they can be vindicated by state action rather than federal. If you see something, state something.

Part 7: Organize. Unionize. I’m not “pro-union,” or “pro-management.” I’m “pro-balance.” Too-strong management can (and usually does) screw workers. Too-strong unions can cripple a company by forcing it to give more than it possibly can, especially because the natural tendency is to

make future promises like pensions that can’t be kept if times get bad. (See: auto companies.) Balance is necessary. I’m not a socialist/Marxist — in fact, I may be the most capitalist progressive you’ll ever meet. But unions have gotten too weak in America, and it’s having a terrible effect on worker protections, which has terrible effects on wages, which has terrible effects on income inequality and the broader economy. A Trump administration — especially with his currently proposed Labor secretary — is likely to be terrible for unions, and exacerbate all these macro problems. Union membership is lower now than it has been in decades. And the unions are never going to bring back the days when a man with nothing more than a high school education could work at the local factory and put his wife and family in a comfy house, all while saving up for retirement and vacations. Those days are never coming back. But unions can still play a big role in protecting American workers, both in the manufacturing (which is less than 10% of the economy) and the service sectors (a much bigger part). There needs to be new fight to unionize non-union shops, and against the so-called “right-towork” laws that are really “right to union-bust” laws. Ironically, though, Trump has some unique weaknesses in this area, especially in this economy. Some bosses faced with a union would just fire all the workers and replace them. While the law circumscribes such mass firing just for organizing, a Trump-dominated NLRB would undoubtedly look the other way. But in this case … who are the bosses supposed to hire to replace their fired staff? Unemployment is relatively low; there aren’t scads of skilled-enough workers desperate for the jobs. In fact most skilled manufacturing jobs need more skilled labor than they can get right now. (Thanks, Obama.) Nor can employers so easily resort to another common tactic: hiring from the illegal immigrant pool. That will play particularly badly in this political climate, a fact unions can exploit. (Frankly I don’t like this tactic, because I am far more sympathetic to illegal immigrants than Republicans. That being said, it is an exploitable tool.) Unions might actually find Trump an ally, even if unintentionally, because of his supposed support for the working class. Let’s be clear: that support is a lie. Trump doesn’t really care about the American working class. His cheap clothes and ties are made in China and other low-wage countries. But unions can and should hold him to his purported support, and use it as a cudgel. Unions used to be very strong among the “white working class” that purportedly drove Trump’s vote totals; unions speaking out could have a stronger impact on this president than average. To be frank, I don’t know enough about labor law or the unionization movement to offer much practical advice here. I know the situation is bad, and the legal climate is getting more hostile to unions. I have to leave to others what the best steps for unions will be. I just think that the struggle because labor and management has gotten imbalanced, and that imbalance has affected us drastically, and for the worse. We need stronger unions.

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Part 8: Win Local Government. The last election — not just at the top, but all the way down the tickets — underscored the absolute necessity to regain control at local and state level. In the past several years, Republican-controlled state governments drew voting districts that favored Republicans, and instituted voting laws that depressed turnout among minorities and the poor. The Supreme Court gutted the Voting Rights Act, with John Roberts naively expressing the view that discrimination in voting was a thing of the past, and pre-clearance of new voter laws was no longer necessary. The results were catastrophic. Even though more Americans voted for Democratic Senators and Representatives as a total, Republicans control both houses of Congress. Hillary Clinton won the popular vote by 2.8 million people, but far fewer Dems turned out to vote in a few key states (some of which had instituted restrictive new voting laws, and had at least raised confusion about the rules). About 80,000 votes in three key states was the difference between President Clinton and President Trump. Hillary won the popular vote by the margin of the entire city of Chicago; Trump won the electoral college by the population of Lambeau Field. Now, the stakes are higher, and the potential consequences worse: Republicans control state government in 32 states. Democrats control 13. There are two ways to amend the Constitution. One way is a vote of two-thirds of the House and Senate, and three-fourths of the states (38 states). The next Congress is GOP-controlled, but, 52-48 in the Senate, and 241-194 in the House. That’s 52% and 55.4% respectively; pretty short of the 66 2/3% needed. But the 2018 elections could be bad for Democrats, especially in the Senate. It’s not inconceivable that new restrictive voting laws passed between now and 2018 could make that difference, both at the state and federal levels. The other way is even closer: a constitutional convention called for by two-thirds of the State legislatures (or, 34 states). We haven’t had a Constitutional convention since the original one in 1789. All of our Constitutional amendments have been passed by the “two-thirds of Congress and three-fourths of the states” method. The GOP is two states away from being able to call a Constitutional Convention. What would happen there is anyone’s guess, but given the numbers, and Republicans’ willingness to assert pure power wherever they can regardless of popularity or hypocrisy, it would be a disaster for progressive values and minority rights. Texas Governor Greg Abbott has already released a 70-page plan calling for a Constitutional Convention and detailing 9 new amendments, including prohibiting Congress from legislating about anything that happens within a state (which I call the “let Texas discriminate against gays and minorities amendment”); prohibiting administrative agencies from creating federal regulations or preempting state law (“let Texas pollute and gut all federal protections”); allowing a 2/3 majority to override a Supreme Court decision (“ignore due process for terror suspects”), allowing 2/3 of the states to override a federal law or regulation, and requiring a balanced federal budget. It’s a safe bet that any new convention would also include proposals to eliminate abortion rights, bar gay marriage, and other such anti-liberal actions.

Put simply, progressives have to win at the state and local levels. This won’t be easy in deep red states. Liberals are unlikely to gain much traction in the deep South. But several states, and several seats in several states, are going to be winnable in the wake of the trail of broken promises that Trump is going to leave. A new kind of message may succeed at the local level. I don’t quite have the time to look at every single state district in every state. But there are state parties everywhere. Even if you live in a blue state (like New York), local assembly and senate seats can be picked up in tough battles. My friend Todd Kaminsky in the 9th District (Long Island’s South Shore), for example, ran not one but two tough races to protect a Democratic seat — a huge deal in a closely divided New York State Senate. (And a stepping stone to a future career fighting for progressive values.) If you are still reading, that means you are interested. If you live in a district with a Republican assembly or state senate representative: run. You are the candidate you have been waiting for. You will have support, I guarantee it. You might get blown away in the primary or in the general. But if you can convey a strong message, it’s not a complete loss. Even if you’re not a candidate yourself, when that candidate calls you asking for money, please give what you can. The Todd Kaminskys of the world need your 25 or 50 bucks a lot more than the Hillary Clintons of the world will. After Citizens United, a rich hedge fund guy can give a million bucks to a national candidate. But local candidates run on much smaller budgets, don’t tend to have million-dollar supporters, and need every nickel they can get. Local elections between here and 2020 are particularly vital, because the 2020 census is going to rebalance the House, and new lines are going to be drawn on the maps. Demographically, progressives should have the numbers. But it’s gonna be a huge fight. We need to ensure our demographic dividend translates to the districts, and the voting rules, and the votes. Otherwise we’re throwing it away, and consenting to be governed by a significantly older, whiter, non-representative minority that has no interest in protecting progressive values. And by the way: get local. Like really local. Even a state assembly seat can be a reach for a novice politician; it requires serious fundraising and messaging. But towns have mayors, town councils, school boards, aldermen. These positions have real power over a lot of things that make a real difference in your life: your kids’ school budgets; whether the road in the middle of your town gets repaved; whether that town cop you know is a racist bully should stay on the force. Think about where you can make small differences, and make them. Mayor of New York City may be out of reach for a novice politician without a billion in the bank, but a town council position in suburban New Jersey may have your name on it. Local communities may be able to stave off some really terrible impacts of Trump policies. In the process of participation — as a candidate, supporter, or frequent town hall attender — you’ll make a larger circle of political friends, and gear up for that run at the state assembly, or even Congress. Get involved.

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Part 9: Civil Disobedience in Support of Civil Liberties Trump was elected by a minority of voters. A large majority of my state (and California, and others) rejected him. He wants to do something that deprives people in my state of liberties? Just: no. We refuse. There are 65 million of us who voted against you, and another 100m+ who didn’t vote for you. You are NOT going to take away our liberties. Wait a minute, what? Just last year, I was calling for the firing of officials in southern states who refused to approve gay marriages. That was a kind of civil disobedience, I guess. And, I was OK with lawsuits against bakers who refused to make gay wedding cakes. Am I being hypocritical, now supporting that same kind of resistance on the other side of the question? NO NO NO. Do not make the mistake of thinking these issues are symmetrical. Republican disobedience over enforcing the right to gay marriage in Alabama was to restrict people’s civil rights. I think people should decline to follow laws that would restrict civil liberties. Such laws are unconstitutional. Imagine a law that literally banned issuing a marriage license to a gay couple (which I wouldn’t put past this Congress). Should that law be honored? No. Obviously, this is not legal advice. If you’re asking me as a lawyer, my legal advice — always — is to follow the law. If you hire me as a lawyer, I’ll tell you what the law is, and advise you how to accomplish your goals within the law. But frankly, it’s hard to advocate obeying a law that would bar blacks from the lunch counter. Is that overly dramatic, or stark? Maybe. I’m not optimistic, though. Some of this administration’s previous proposals are not remotely close calls. You want to make Muslims sign on to a registry? Get ready for disobedience. You want to take away marriage rights? Or press freedoms? Or the freedom to assemble and petition our government? Get ready for large assemblies petitioning the government. The NAACP held a sit-in at Jeff Sessions’ office. They got arrested for trespassing (which wasn’t wrong; they were trespassing). They should get a huge round of applause and support for reminding America how incredibly racist Jeff Sessions is. (Hint: he was deemed too racist to be a federal judge. In the 1980s. By Senate Republicans. If you make a bunch of conservatives who were largely born in the Harding and Coolidge administrations think, “whoa, that’s too racist,” then you’re really racist, and probably shouldn’t be in charge of, say, enforcing laws against discrimination on the basis of race.) If you are not mean, spiteful, small-minded functionary denying two people the right to marry because your view of religion says gays are icky, you are deplorable, and I use that work pointedly. But if you are standing up for basic civil rights because our Constitution enshrines them, then you are that black man sitting at a lunch counter. You are a Chinese student standing in front of a tank. You are Gandhi. Standing up for freedom and liberty makes

you an American hero. Stand up. If you are breaking trespass laws (or, say, violating local ordinances against protesting without a permit) in defense of civil liberties, you’ll pay the legal penalty, but you’ll show that we’re not going to sit down and allow our rights to be trampled. Be peaceful, be disciplined, and of course be non-violent. But don’t take affronts lying down. “Sorry, we don’t allow protests on the steps of the state Capitol building.” No. The First Amendment guarantees the right to peaceably assemble and to petition our government. And for good reason! Hopefully, the court system will nullify the attempts at rights-depriving laws that this Congress seems bent on advancing. Until that happens, I get the feeling that we’re going to see some non-compliance in order to protect basic rights. The logic of the “sanctuary city” may come to apply more broadly than folks imagined.

Part 10: Take the High and Low Roads Progressives sometimes don’t fight dirty. We tend to bring knives to gunfights, and maybe more accurately, pencils and rhetoric to gunfights. We believe in fair play, equity, and respect for individual rights, and we value cooperation and working together. We recoil at hypocrisy. We have shame. So sometimes we don’t exercise raw political power, even when we could, simply because we are trying not to be jerks. As a general matter, should the left be harder-core, down and dirty? Or stick with the high road, refusing to compromise the principles that we think makes us better than those who would assert pure power against the powerless simply because they can? Both. We need people to do both. And importantly, with a few exceptions, neither group should cast aspersions on the other, because both sides are necessary to advance a movement. All political movements need extremists. I’m not talking violence — leave that trash at home — I want no part of it and neither should you. I mean extremists like politicians willing to filibuster and refuse all compromise; protestors willing to block traffic in widespread protests (and accept the consequences), and the like. Extremists attract and galvanize attention, and can obstruct terrible actions on the other side. But we also need the centrist-pragmatists, the people who can capably govern and make deals when necessary. Ideally these two groups should work hand-in-hand, even if not explicitly. The extremists make the centrists look like good, palatable, reasonable choices. The centrists tell the centrists on the other side, “it’s either me or the extremists,” and might then get more support for a centrist policy. And the centrists get the extremists some, and sometimes most, of what they want. (Nobody will ever get all they want; that should be understood.)

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In a way, this was the Clinton-Sanders dynamic. Sanders appeared more extreme; Clinton the centrist-pragmatist. It was potentially a great one-two punch. Where it went wrong was in-fighting. “Bernie bros” harshing on Clinton’s connections to Wall Street only fed the Trump narrative. And Bernie went too far with it as well, raising ethical questions that were trivial compared to the ethical swamp brought by Trump, but scaring off some on the left. The in-fighting had disastrous consequences. The margins of victory across a few key states were almost certainly smaller than the number of frustrated progressives who voted for Jill Stein or stayed home because they thought Clinton was too Wall Streetconnected and “establishment.” (Those folks are in for rude shocks ahead.) So, in sum: you do you. If you’re want to join a huge protest, or call every Senator every day, good for you, please do it! If you’re more of a “join the local school board and press for better education,” yes do that too. Dahlia Lithwick calls this the “yes and” approach. Do whatever you’re comfortable with, whatever suits your personality. But don’t criticize me for my center-left business-friendly pragmatism (even if you think I’m too “corporate”), and I promise not to criticize you for camping out in a plaza on Wall Street (even if I think that’s counterproductive). A unified push for progressive values takes both of us. There are exceptions! In some areas, only one voice can possibly be speaking. The Hillary/Bernie debate was one (after she won the primaries). One of them was going to speak for our whole side, and that point, we all needed to rally around that one voice. Here is another, through my admittedly narrow legal lens. I have seen some incredibly ill-advised and poorly-written petitions filed to courts (including the Supreme Court) to block Trump’s presidency on some really shaky grounds. These hurt, in two ways. First, poorly-written briefs are destined to lose, creating some type of precedent. So it gets harder for well-done petitions seeking the same relief, but on firmer grounds, to succeed in the future. A court will tend to look at the issue as decided law, and may never address the merits of a brief that actually contains good legal arguments. Second, terrible losing legal arguments actually bolster the legitimacy of the administration: Trump can brag that the Supreme Court already decided he should be president — which would only be a slight exaggeration in response to some of these cases alleging that “the electoral college is unconstitutional.” Losses like that, and narratives like that, work against the progressive movement. So if you are a lawyer out there considering filing a suit on a crazy theory, maybe ask a bunch of experienced appellate practitioners first and get their views. You might find support and refinement to make your brief better and you end up filing. But if a bunch of people with a lot of appellate litigation experience tell you your idea is a sure loser, please don’t file on the theory that “hey, it’s worth a shot, you never know!!!” Let’s take many roads, together, but let’s try to stay on the better roads.

Part 11: The Fundamental Asymmetry of Modern Politics, and the Power of Decency Forgive me for what may seem like a tangent. If you’ve read this far, maybe you’ll indulge me. And I promise you it’s not actually a tangent. It’s an example of a fundamental asymmetry. It’s … Syria. Syria right now is a terrible humanitarian and geopolitical disaster. Assad, backed by Russia, is going to win back control of the country, largely because he did not and does not care about collateral damage. Assad and Putin are OK with bombing their own people and blaming ISIS, or launching chemical attacks that will kill or displace millions. These tactics are horrifying. But they’re going to prevail. Why didn’t we (America) stop it? Why are we sitting by and letting all this terrible carnage happen? The short answer, in my view: there’s no good way to intervene that isn’t likely to make things worse. American ground troops would take heavy losses, stretch our military, drain our resources, probably end up killing even more civilians, and may or may not be successful anyway. A no-fly zone risks sparking hostilities with Russia, Turkey, and maybe even our allies. There aren’t good options. Maybe smarter people than me could figure something out, but mostly, it seems like anything we could have done would have just caused more collateral damage. It’s a terrible situation. We’re flailing, trying to figure out how to do the right thing; trying to learn the lessons of Rwanda (and not allow mass atrocity), but also take the lessons of Iraq (and not get stuck in a quagmire that leaves more people dead than if we hadn’t started in the first place). Obama has been trying to figure out how to do good in Syria without being indecent, without making things worse, and finding out that there is no good way. The lesson: fighting against someone who is willing to do anything to win, no matter how horrific or destructive, will always leave you at a disadvantage. If you care about collateral damage, your options are necessarily more limited. Returning to domestic politics, the biggest challenge facing progressives is this fundamental asymmetry: it is harder to win if you’re decent. As the saw goes, for 35 years now Republicans have run for office on the platform “Government Doesn’t Work” … and then they get elected and prove it. Even out of presidential power, the GOP’s destructive obstructionism of the last 8 years has now been amply rewarded. McConnell vowed to obstruct Obama at every turn, and with that unifying theory, Republicans subverted long-standing norms of cooperation on judicial and cabinet nominees, shut down government, and threatened America’s full faith and credit, and tried to repeal health care for 28 million people. They engaged in naked power grabs in redistricting and voter suppression; launched repeated judicial challenges to every new administration regulation, etc. Many of these offensives were struck down by courts. But some worked. The Supreme Court win on Medicaid expansion under Obamacare is a good example: it enabled red state governors to turn down free federal money, inflicting lots of damage on poor people in their

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state, all in the name of saying Obamacare was a failure. GOP governors were willing to go to war against Obama, and literally didn’t care about the collateral damage. More indirectly, voter suppression most decidedly worked in the last election, to disastrous effect. People’s right to vote, our fundamental democratic right, was impinged, in order to gain power. And in this case, the power to impinge voting rights even further, making it more difficult to wrest back power. Rights are just collateral damage in the name of taking and exercising power. In each instance, many decent people thought: they’ve gone too far this time! They’ll pay a price! But due to structural electoral advantages and superior propaganda, the GOP paid no price. Indeed they’ve been rewarded with the whole government. The GOP was willing to threaten (and inflict) widespread collateral damage in order to win, and that plan worked. Trump threatens to extend these lessons. He has little regard for truth, on matters important or trivial. He has subverted fundamental norms and ethics codes. To the extent anyone can discern what his actual policies would be, he is shrugging off the collateral damage of his proposed trade policy, his Muslim registries, his Russia policy, his tweets. And if he just signs into law all of the Republican party’s proposals — on Obamacare, “religious freedom” (aka the religious freedom to discriminate on the basis of sexual orientation), “stop and frisk,” (aka ignoring the Fourth Amendment for black and brown people), the collateral damage will be vast. So what’s the lesson? That the left should do the same? That we should stop worrying about breaking a few eggs in order to take back control? No. We can (and probably will) take some lower roads from time to time, but the darkest roads are to be avoided at all costs. A lot of damage is coming, despite our best efforts to avoid or attenuate it. Sooner or later, though, Trump’s policies will fail. An administration with many of the agencies being run by incredibly unqualified people will suffer failures. People will lose health care and die; jobs will continue to be outsourced; trade wars will raise the prices of clothes, food, and cars, and the economy — which will actually do pretty well for a little bit — will falter. I don’t want any of this to happen, of course. I sincerely hope that in four years our country has done spectacularly, and everyone can have a good laugh at my worries. I will laugh loudest at myself, out of relief. But it would be difficult to design policies better than Trump’s for bringing about these bad ends. Remember when I talked about messaging? This is where messaging will be critical. The message should be: the Republicans own the whole government, so if it goes wrong, it’s all on them. If we are failing, it’s because they are failing, and they should be removed in 2018 and 2020. I worry about the messaging, because my worst fear is that things are going to get far uglier than most think possible. Bad things will happen, and Trump and his cronies will never admit they screwed up. They will blame Muslims for terrorism, immigrants

for taking jobs, blacks for crime, Asians and Jews for economic downturn. It’s pretty clearly coming. Remember: these last 8 years, and especially these last 8 months, have proven that one side is willing to subvert long-standing norms, and they do not care about collateral damage. One side is willing to play the ugliest cards in order to win and consolidate power. If their policies do not work, their road ahead is very, very dark. We have to shine a beacon of decency, and make clear that the way out of the ugliness, out of the collateral damage, is decency. It’s tough to sell hard work and slow progress. It’s not exciting or sexy. And all the losses in the meantime are going to hurt. But decency is a superior product. It will prevail. It can be sold with self-interest. The first mistake of the current administration will be the cronyism and attention to tax breaks for the tippy-top of the American economy. I truly believe that people will realize — with the proper messaging — that these policies are indecent, and the indecency isn’t helping them. But decency will: health care, more progressive tax structures, government assistance for education, protected Social Security, Medicare, and Medicaid. When you have a superior product to sell, you just have to break through and communicate the truth about it. So, we can be viciously oppositional to policies that deprive Americans of their rights. We should! But we cannot and must not lose our fundamental decency; we cannot resort to tactics that create collateral damage, even if it seems like we’re going to take a loss otherwise. Decency is not a tactic; it’s an ideology. A winning ideology. At the end of the day, the very purpose of government is to avoid the nasty, brutish, and short state of nature that exists without government. It’s unfortunate that it sometimes takes short bursts of nasty and brutish to remind people that government is necessary and, when done right, good. People want government that works, whether they consciously know it or not. FDR and the Democrats won an overwhelming victory in 1932, just four years — and one Great Depression — after Hoover had won overwhelmingly in 1928. And more recently, George W. Bush pretty much proved the point. He and his administration were utterly incompetent, and he left with historically low popularity ratings as a result. The Republican brand was so tarnished that in 2008 the American people overwhelmingly voted for a black guy with an African name for President; something that few people predicted might have happened in 2004. Apparently, this time, it didn’t take long for people to forget how bad a bad government can be. Eight years of “no drama Obama” and a constant, recurring drumbeat of vicious opposition to anything Obama did, undermined the real, tangible progress that had been made in those eight years. Our steady progress was slow, unflashy, and fundamentally decent — much like the president himself. But apparently, to borrow a phrase, we won so much that some people got sick of winning. They wanted to see what it would be like to shake things up, and go a different direction. Well, they’re about to find out, unfortunately. Hopefully we can contain the damage in the meantime through legal action, obstruction, and argument. Over the next two and four years, we’ll be pushing a winning ideology of decency and rights, and hopefully communicating that ideology through better messaging. We’ve got a lot of work to do, both on defense and on offense. But we’ll do it. It’s gonna be rough. Sometimes the long moral arc of the universe bends a little bit in the wrong direction.

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But let’s each do what we can to bend it back. It will add up. I fundamentally believe that decency will win, because when people see the alternative, when faced with indecency, they remember why they want a government: to establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity. OK, that’s it, for now. Let’s get to work.

Jason Gottlieb has been writing book reports for 44 years. He is a lawyer, husband, father, musician, and patriot.

jasongottlieb@post.harvard.edu

@ohaiom

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