Category: reason

“Why don’t they coalesce around me?” former New York City Mayor Michael Bloomberg asked yesterday before the wildly disappointing Super Tuesday performance that led him to drop out of the race for the Democratic presidential nomination today. Bloomberg won the caucuses in American Samoa but fell far short of victory everywhere else after spending half a billion dollars of his personal fortune on a quixotic quest to replace former Vice President Joe Biden as the moderate alternative to an avowed democratic socialist, Sen. Bernie Sanders (I–Vt.).

Today Bloomberg endorsed Biden in a gracious statement acknowledging that “a viable path to the nomination no longer exists,” calling Biden “the candidate with the best shot” at defeating Donald Trump, and praising “his decency, his honesty, and his commitment to the issues that are so important to our country.” But Bloomberg never would have entered the race last November if he thought Biden was up to the task, and the chutzpah embodied in his strategy of skipping the early contests and debates, flooding the airwaves and internet with ads, and swooping in to rescue a party he joined less than two years ago goes a long way toward explaining why primary voters found him so unappealing.

Anyone who wants to be president almost certainly has an inflated sense of his own competence and wisdom. That is especially true for someone like Bloomberg, a remarkably successful entrepreneur who became the world’s ninth-richest person by providing value to consumers and erroneously thought his skills as a businessman made him especially qualified to boss people around. But good politicians are skilled at concealing their arrogance, recognizing that voters may find it off-putting. Bloomberg has never been good at that.

This is a man who devoted much of his time as mayor to berating poor people for their unhealthy habits, a condescending paternalism epitomized by his extralegal attempt to ban the sale of large sugary beverages. He defended that crusade in embarrassingly grandiose terms: “We have a responsibility as human beings to do something, to save each other, to save the lives of ourselves, our families, our friends, and all of the rest of the people that live on God’s planet.” Bloomberg, who called protecting people from their own bad habits “government’s highest duty,” sincerely thought he was saving the world, one slightly smaller soda at a time.

This is a man so convinced that he was uniquely qualified to run New York’s government that he pushed through a legal change allowing him to serve a third term, then backed legislation reimposing the two-term limit. “Bloomberg thinks that being able to serve three terms in office is a good idea—just not for anyone else,” The New York Times noted at the time.

This is a man who in 2001 cheerily admitted that he had smoked marijuana and enjoyed it, then presided over a dramatic surge in arrests of cannabis consumers. Last year Bloomberg called legalizing cannabis “perhaps the stupidest thing we’ve ever done.” Once he decided to run for president, he wanted Democratic voters, three-quarters of whom support legalization, to forget about his record on this issue. “Putting people in jail for marijuana,” he declared, is “really dumb.”

This is a man who either did not know or did not care that the “stop, question, and frisk” program he championed as a way of deterring young black men from carrying guns, which at its peak subjected overwhelmingly innocent people to 685,000 humiliating police encounters in a single year, was blatantly unconstitutional. That program, like Bloomberg’s panoply of paternalistic “public health” prescriptions, reflected his unshakable confidence that he knows what’s best, even when the supposed beneficiaries of his policies vehemently disagree. Bloomberg doggedly defended stop and frisk for years after leaving office, then abruptly reversed his position the week before he officially launched his 2020 presidential campaign, recognizing that the policy was unpopular with today’s Democratic primary voters.

Bloomberg thus began his presidential campaign on a false note, an awkward position for a politician vying to replace a president who can barely open his mouth without prevaricating. He compounded the dishonest tone of his campaign with a Super Bowl ad that was built around a lie about “children” killed by “gun violence.” The ad, which presented Bloomberg as a brave champion of public safety who is not afraid to take on “the gun lobby,” was also misleading in a subtler way. As David Harsanyi noted at National Review, the resources Bloomberg has devoted to promoting new firearm restrictions dwarf what the National Rifle Association spends to resist those policies.

Truth aside, the Super Bowl spot was compelling. But the same could not be said of many other ads that Bloomberg bombarded us with, which Democratic strategist Elizabeth Spiers described as “mediocre messaging at massive scale.” Whenever Bloomberg himself spoke, he came across as wooden and decidedly uncharismatic. While viewers might very well have agreed with his critique of Trump, that did not mean they saw Bloomberg the way he saw himself: as the guy with the best chance of defeating the president. Doubts on that score surely were not assuaged by Bloomberg’s surprisingly inept performance during the first debate in which he participated.

Only yesterday, The New York Times was marveling at Bloomberg’s campaign organization, which hired more than 2,400 people, “opened more than 200 offices from Maine to California,” “blanketed the airwaves with half a billion dollars in ads and paid social media influencers to spread his message,” “deployed new artificial intelligence technology” to “adjust his message in real time as issues like the coronavirus outbreak erupted,” and “tapped into the political networks of mayors in major cities like Houston and Memphis, who helped Mr. Bloomberg fill his rallies with prominent local politicians and pastors.” This sophisticated operation was all the more impressive because it had been set up so quickly: “What other campaigns took more than a year to build, with visits to fish frys in Iowa and cable news studios, the Bloomberg campaign did over the three months from Thanksgiving to Presidents’ Day.”

But the Times also conceded that “there are those who find [Bloomberg] unappealing,” which turned out to be an obstacle that no amount of money could overcome. The most salutary aspect of Bloomberg’s campaign is that it demonstrated once again the fallacy underlying attempts to protect democracy by restricting speech. Even for a candidate who can far outstrip his competitors’ spending by shelling out less than 1 percent of his personal fortune, money can’t buy you love.

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Democrats and Republicans weren’t the only voters to experience the pains and pleasures of Super Tuesday—third parties, which in 2016 had their best presidential showing in two decades, were also on the ballot in a handful of states.

Libertarian Party primaries and caucuses are nonbinding, which means that no delegates are awarded based on results. As ever, candidates for the nomination of the country’s third-largest party need to persuade a simple majority of the state L.P. delegates who attend the May 21-25 national convention in Austin, Texas. Still, the election results provide a snapshot of what party members are thinking less than three months out.

So far, the trend line is unmistakable—the Libertarian front-runner at this point is longtime libertarian-movement hand and Future of Freedom Foundation founder Jacob Hornberger. After previously winning the Iowa and Minnesota caucuses, and getting the second-most first-place votes in the New Hampshire primary as a write-in, Hornberger was the biggest human vote-getter in all three of the Super Tuesday primaries that have posted results so far.

In California, with 99.9 percent of precincts reporting, Hornberger led a field of 13 candidates with 17.5 percent of the vote. Tied for second with 11.6 percent were former military officer and Honolulu County Neighborhood Board member Ken Armstrong, and political satirist Vermin Supreme, the latter of whom previously won the New Hampshire primary. Lagging just behind at 11.4 percent was 1996 L.P. vice presidential nominee and academic Jo Jorgensen.

In Massachusetts, with 100 percent reporting (though the results are still unofficial), Hornberger was the leading vote-getting candidate with 12.6 percent, though he trailed that perennial L.P. favorite “None of the Above” (NOTA), which clocked in at 20 percent. Educator and controversialist Arvin Vohra was next at 6.3 percent, followed by a 5.9 percent tie between Vermin Supreme and Dan “Taxation Is Theft” Behrman. Write-ins, which have not yet been broken down, amounted to a combined 26.3 percent.

And in North Carolina, as Elizabeth Nolan Brown reported this morning, Hornberger again paced the biped field with 8.7 percent, though NOTA stomped with 29.8 percent. (NOTA wasn’t on the ballot in California.) Just behind Hornberger with 8.2 percent was antivirus pioneer and international man of mystery John McAfee, who promptly dropped out, threw his support behind Vermin Supreme, and announced his candidacy for vice president:

I regret
That I am ending my campaign for President.

I am instead
Attempting to run
For the Vice Presidential slot.

I have asked my Campaign Manager@Loggiaonfire
To contact the Campaign of Libertarian @VerminSupreme

And offer to be his VP pick.

Full explanation in video. pic.twitter.com/750ggzJdBY

— John McAfee (@officialmcafee) March 4, 2020

Not on any of the three Super Tuesday Libertarian ballots were recent entrants Lincoln Chafee (the former U.S. senator and Rhode Island governor, who finished second in the Iowa L.P. caucus and tied for fourth in Minnesota); entrepreneur/ex-convict Mark Whitney (11th and fourth, respectively, in same), and former million-vote-getting Georgia gubernatorial candidate John Monds (15th and fourth).

Meanwhile, the leading fundraiser in the race, activist and veteran Adam Kokesh, finished sixth in California with 7.9 percent, tied for eighth in Massachusetts with 4.4 percent, and ninth in North Carolina with 3.5 percent.

With the Democratic nomination seesawing back into Joe Biden territory, dimming the prospects of a populist/nationalist vs. populist/socialist election, the allure for potential latecomers into the Libertarian race will surely lessen. This could well be the final field in the contest to be the third candidate on the ballot in all 50 states. Much can and will change between now and late May but, for the moment, Jacob Hornberger is your Libertarian front-runner.

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Thanks to a generous grant from the Stanton Foundation, and to the video production work of Meredith Bragg and Austin Bragg at Reason.tv, I’m putting together a series of 10 short, graphical YouTube videos explaining free speech law. Our videos so far have been

1. “7 Things You Should Know About Free Speech in Schools,”
2. “The Three Rules of Hate Speech and the First Amendment,”
3. “Fake News and the First Amendment,”
4. “Who Owns Your Life Story?,”
5. “Is Money Speech?,”
6. “Corporations and the First Amendment,”
7. “The Ten Rules of Free Speech and College Students,”
8. “Free Speech and Government Property,” and
9. “Free Speech and Privacy.”

Our tenth, which we released a few weeks ago (and which I unaccountably neglected to post here at the time), is “Alexander Hamilton’s Influence on Free Press Law“:

As usual for our episodes, the full script is also posted right below the video on YouTube.

We’d love it if you

1. Watched this.
2. Shared this widely.
3. Suggested people or organizations whom we might be willing to help spread it far and wide (obviously, the more detail on the potential contacts, the better).
4. Gave us feedback on the style of the presentation, since we’re always willing to change the style as we learn more.

Please post your suggestions in the comments, or e-mail me at volokh at law.ucla.edu.

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Yesterday, the Supreme Court heard argument in Seila Law v. CFPB. This case presented a direct challenge to the structure of the CFPB. However, the Trump Administration has declined to defend the agency, as it is currently structured. Specifically, Solicitor General Francisco argued that a sole director, who could only be removed “for-cause,” was inconsistent with the President’s powers. As a result, the Supreme Court appointed an amicus curiae to defend the CFPB.

That choice fell to Justice Kagan, the Circuit Justice for the Ninth Circuit. And she made a strategic decision. Rather than selecting someone like Deepak Gupta, a steadfast defender (and former employee) of the CFPB, she looked to the right, and picked Paul Clement. Yes, she selected the former Scalia clerk who (I suspect) agrees with fellow Scalia clerks, SG Francisco and Kannon Shanmugam.

At the time, I thought it was a shrewd move. Clement would be better served to hand-craft arguments for the conservatives on the bench, particularly Chief Justice Roberts, who may otherwise be inclined to rule against the CFPB. In effect, Kagan chose Clement as the equivalent of a counter-clerk. (I am not sure if Kagan has adopted the sometimes-practice of Justice Scalia, and picked counter-clerks for her own chambers).

Did Kagan’s move pan out? I don’t think so.

First, Paul Clement clashed a bit with Justice Gorsuch. At one point, Clement criticized Solicitor General Francisco’s position. He said, “I offer you two limiting principles, which I think is two more than the Solicitor General’s offered you.” That barb was gratuitous. And Gorsuch was right to put Clement in his place. Bob Barnes offered this account in the Washington Post:

Gorsuch did not seem to appreciate the argument or Clement’s suggestion that the case should be decided in a limited manner without reaching the constitutional issues. He got into a testy and extended exchange about whether Clement, a solicitor general under President George W. Bush who was arguing his 101st case at the court, was avoiding his questions.

“I want to be responsive,” Clement protested. When Gorsuch asked Clement at one point for a ‘limiting principle” for one of his arguments, Clement replied that he had two, which was two more than offered by the government.

“If we could avoid disparaging our colleagues and just answer my question, I would be grateful,” Gorsuch said with a terse smile.

The exchange between Gorsuch and Clement was quite long, and unusually brusque. Did Clement presume a level of familiarity with a Justice usually on his side? I doubt it. Clement has now argued 101 cases. He knows better.

Rather, my impression is that Clement’s argument seemed forced. Of course, Clement had his usual smooth and skillful presentation, and zealously advocated for the case to which he was appointed. But the presentation didn’t come across as genuine. He likely didn’t believe what he was saying, and it showed–at least from my vantage point. I almost felt like Clement was playing a role. He was acting. He was trying to come across as someone who wants the CFPB to survive, when in fact he probably agrees with the petitioners. And sometimes when you are playing a role, you push too hard. You work so hard to fight against your own priors. And in doing so, you think you need to take a more aggressive position than you otherwise would, because your usual lines are blurred. I have no inside knowledge about Clement’s strategy. I can only compare it to the many other arguments I’ve seen him make over the years. And this case felt different.

There is a second reason why Kagan’s selection of Clement didn’t pan out: Clement’s position was informed by his own position on the separation of powers. One of the most important questions in the case was whether “for-cause” protections could be added to cabinet members. Recently, Cass Sunstein argued that Congress could place “for-cause” protections for the Attorney General. I responded that this position is inconsistent with both the majority and dissent in Morrison v. Olson. But this argument is premised on the unique role the President plays in deciding whether to prosecute someone for criminal offenses. I don’t know that the Morrison majority supports the same argument for other cabinet positions. And I think Humprey’s Executor could be read to support for-cause provisions for certain cabinet officials. (Under Myers v. U.S., Justice Scalia’s Morrison dissent, all principal officers must be removable at will.)

A full-throated defender of the CFPB would have bit the bullet, and said that Morrison would allow placing “for-cause” protections on most, if not all cabinet officials, with the possible exception of the Attorney General. Indeed, an advocate like Sunstein (or perhaps Elizabeth Warren) would have said that even the Attorney General could be protected by a “for-cause” standard.

But Clement did not take that position. Instead, he developed a limiting principle about the removal power that I hadn’t considered before. (Indeed, it was this limiting principle that Gorsuch repeatedly asked about).

Clement explained:

Second, there’s a constitutional backstop, an absolute constitutional backstop, which is those authorities that the Constitution assigns directly to the President –so the State Department, the Defense Department, pardon power; there’s a few others –those cannot be subject under any circumstances to anything other than at-will removal.

In other words, if the Constitution assigns a power to the President, then the President’s supervision of the agencies that execute that power cannot be limited by a “for-cause” provision. Clement lists a few examples. First the State Department presumably premised on the President’s powers over foreign affairs. Second, the Defense Department, which involves the President’s powers as Commander in Chief. Third, the pardon power, which I think would relate to DOJ. These cabinet positions must be removable “at will.” I did not see this argument made in Clement’s brief; it was reserved for argument.

Justice Alito followed up and asked about “the EPA or Homeland Security.” Clement replied:

I think EPA is something that they probably could make subject to for-cause removal. I think Homeland Security, in its current form, they couldn’t, because some of the powers that were given to the Homeland Security Secretary by Congress were powers that were borrowed from the Defense Department.

And I think, if any of the authorities that are being exercised by a cabinet secretary are authorities that the Constitution assigns directly to the President, you probably can’t make that subject to -[for-cause removal standards].

Clement may be right. I need to give this limiting principle some more thought. But this argument goes beyond what the Morrison majority held. Chief Justice Rehnquist did not say that the removal power is limited where “the Constitution assigns [powers] directly to the President.” That position is much closer to Justice Scalia’s dissent, and takes a very unitary-executive flavor feel.

I think the natural response to Clement’s position is that the CFPB can take enforcement actions, and the discretion to bring those actions closely resembles the Attorney General’s decision to bring criminal prosecutions. I think a credible argument can be made that the Constitution does assign the relevant prosecutorial discretion to the President with respect to the CFPB. Congress can define the agency’s jurisdiction, but the decision whether to exercise that prosecutorial discretion belongs to the executive. Under that theory, the CFPB Director could not be protected by a “for-cause” standard.

These thoughts are tentative. But Clement’s Scalian limiting principle, in some regards, weakens the defense. What the CFPB needed was a Sunsteinian defender, who argued that even the Attorney General could be restricted. The Court would have rejected that argument, but the argument was a reasonable one, and should have been made. Here, Clement’s understanding of the separation of powers did not serve the CFPB well.

Ultimately, I think Kagan’s selection of Clement was too-shrewd-by-half. She would have been better off picking someone like Deepak Gupta, who could have given the CFPB the defense it needed. I suspect there are some defenders of the CFPB who will quietly agree with me.

The Supreme Court also gave some argument time to the House of Representatives as amicus curiae. Douglas Letter argued on behalf of the House. This was his third argument before the Supreme Court. I’ll be blunt: he was not effective. His argument stretches from pp. 66-77 of the transcript.

At several junctures, Justice Gorusch asked Letter the same question he asked Clement: what line would he draw. This question was very, very obvious. Everyone could have seen it coming. But Letter was either unable, or unwilling to answer the question. Consider this exchange between Letter and Justice Gorsuch:

Justice Gorsch: So where … would you draw the line, Mr. Letter, then? If –I guess I have two questions for you. First, if –if the standard isn’t watered down, what does that standard mean for removal in your mind? And, number two, what would be the stopping point for Congress’s ability to place high levels, serious impediments to presidential removal powers of -of members of the cabinet and other executives –what we think of traditionally as executive agencies?

MR. LETTER: Your Honor, I’m going to start with the second one. I don’t know the answer of how far Congress could –could go, Congress and the President together could go.

JUSTICE GORSUCH: Isn’t that a pretty vital question for us to be able to answer to decide this case?

MR. LETTER: I don’t think so, Your Honor, because you have decided in Humphrey’s Executor, Wiener, Buckley, Free Enterprise, Morrison versus Olson, you’ve decided all of those cases and you’ve said that removal protections are constitutional without answering that question.

I –I searched in vain. In none of those decisions have you –

JUSTICE GORSUCH: No, fair enough. But you’re at the podium, so take a shot at it.

(Laughter.)

After the laughter, Letter cited Morrison, but declined to address the specific question about whether cabinet officers, other than the Attorney General, could be protected:

MR. LETTER: They –I’m going to pick up on a word that –that I believe this Court has used, which is they should be modest. I think the test is, Your Honor, what –again, this Court has said, I believe it’s in Morrison, but you’ve said it in various situations, is it –does it so interfere with the executive’s ability to carry out his constitutional responsibilities?

I think that’s the test that this Court has –has said in a variety of separation-of-powers cases. I know that’s -that’s vague, but I can’t do better than what -what you have said.

Yes, you could do better. Clement did it. After some cross-talk, Justice Gorusch said:

JUSTICE GORSUCH: I’m sorry. I hope you’ll get to my first question at some point, but I–

Letter had forgotten the question:

MR. LETTER: Justice Gorsuch, would you mind repeating your first question? I apologize.

JUSTICE GORSUCH: Sure. What does that removal standard mean to you? If –if we shouldn’t water it down, what does it mean?

Occasionally, I’ve seen advocates get lost in a multi-page Breyer hypothetical. Gorsuch had two questions, which were fairly predictable. I was stunned he had forgotten the threshold question about the removal standard.

His answer was even more perplexing. The House of Representatives wrote the “for-cause” standard in the Dodd-Frank Act. Gorsuch asked the lawyer for the House what that provision meant. And Letter couldn’t, or wouldn’t answer the question:

MR. LETTER: Your Honor –and, again, I’m going to agree with Mr. Clement insofar as this. A lot of times, this is going to depend on context.

So, for example, and –and, again, this Court hasn’t defined what it means, so I don’t have a great answer yet from you all. You tell us what the Constitution –

It is not the Court’s job to tell the House what a statute means. That is the House’s job.

JUSTICE GORSUCH: Your client wrote it. So I’m –I’m just wondering what your client’s view is. And you say you disagreed with Mr. Clement on this, and now you say you agree. So I’m really quite confused.

Then things take a turn for the surreal.

MR. LETTER: I –I disagree with Mr. Clement about watering it down. We don’t think that it should be made basically at will.

But the –I –I will agree –

JUSTICE KAGAN: I don’t think Mr. Clement said that either.

At this point, I have no idea what Letter’s position is. It gets worse.

MR. LETTER: Oh, I –I apologize. I thought he was saying a watered-down version.

But, Justice Kagan, I will very strongly agree with Mr. Clement. It does depend on the –the circumstances.

Agree? Disagree? Who knows.

Later in the argument, Justice Kavanaugh asked another predictable question: the current CFPB director will remain in office after the 2020 election, when another President may be inaugurated:

JUSTICE KAVANAUGH: The next President in 2021 or 2025, or whenever, will have to deal with a CFPB director appointed by the prior President potentially for his or her whole term without being able –given your answer to Justice Alito –being able to do anything about that difference in policy.

Are you comfortable with that result? Does that give you any concern? Should we be concerned about that?

MR. LETTER: It does give me concerns but –and I’m –I’m very glad you brought that up because you’ve asked that and it’s a very key question, Your Honor.

What I would say, though, is let’s compare it to, for example –may I finish my

At that point, I think he ran out of time. Roberts let him finish his argument:

MR. LETTER: If you compare it to, for instance, the Fed, that has seven members who serve 14-year terms.

A President who serves a four-year term is, therefore, very likely to have almost no influence over the Fed. They won’t –I’ve not –I’m not a good mathematician, but I don’t think that means that they get to come anywhere close to appointing a majority of the Fed members.

So this is a problem that you have already decided to –to recognize.

What is that answer? Congress designed the CFPB’s terms (5-years) to straddle administrations. The answer should have been, “no, that was our design, we are not concerned.” But he didn’t say that. Also, with limited time, he said that Justice Kavanaugh’s question was a “very key question.” No kidding.

During my first moot court competition as a 1L, I responded to a question by saying, “your honor, that is a very important question.” During the feedback afterwards, the judge criticized me. He said, “I know it is important, that is why I asked it.” Often, when one of my student responds to a question with “that’s a good question,” I know he is unprepared, and is trying to buy time. When Justice Kavanaugh asks a question, it is “very key.” You don’t need to acknowledge it. And Kavanaugh wanted an answer.

Finally, after Letter’s extended time wound down, Roberts asked once again about Justice Gorsuch’s first question, which was not answered:

CHIEF JUSTICE ROBERTS: Mr. Letter, I think Justice Gorsuch’s first question is still on the table.

MR. LETTER: As I said what we –

JUSTICE GORSUCH: Thank you.

MR. LETTER: –what we think it means will be fact-dependent. It will depend –as I say, if it is –it can’t just be we have a policy difference. You’ve already –you’ve told me that.

You’ve already told me that it can’t simply be I don’t like you. We –we know that.

But, for example, if it’s a situation where the –the –the President says you are doing something that undermines national security, one of my core functions, or undermines foreign relations and I want –and I direct you to stop, an agency that says, no, I believe that that would be, Your Honor, cause for –that would meet the standard.

I will need to listen to the audio. This statement is really hard to follow from the transcript. I think he is hinting at Clement’s “constitutional backdrop” standard, with the reference to “foreign relations.” But I’m not sure.

Letter was not ready for this landmark case. His advocacy was not effective. The Respondent needed better friends. Truly, Super Tuesday was a bad day for the CFPB, all around.

In July, I watched Letter argue the ACA case before the Fifth Circuit. He was also ineffective. My impression at the time was that Letter simply wasn’t prepared to answer what were entirely predictable questions from the bench.

I’ll close with some free legal advice to Speaker Nancy Pelosi: if the House gets argument time in the Obamacare case (your petition was not granted), let former Solicitor General Donald Verrilli argue. He will do a better job. He saved Obamacare once. He is the person best suited to do it again. And this statement is against my own interest: I support Texas’s challenge. But I want the best possible advocacy for this important case. And Letter has not demonstrated he can provide it.

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Joe Biden and Bernie Sanders were the big winners on Super Tuesday. Former Vice President Joe Biden took top place in nine Democratic Party presidential contests yesterday, while Sen. Bernie Sanders (I–Vt.) was the top choice of Democratic voters in four states. The biggest states holding contests yesterday were split between the two candidates, with Texas going for Biden and California going for Sanders.

Alabama, Arkansas, Massachusetts, Minnesota, North Carolina, Oklahoma, Tennessee, and Virginia also went for Biden yesterday, with Sanders winning in Colorado, Utah, and his home state of Vermont. (The Maine primary results are still not out.) This gives Biden at least an additional 337 delegates (bringing him up to 390 total), and Sanders at least 270 new delegates (bringing him up to 330 total).

The roughest night was had by Sen. Elizabeth Warren (D–Mass.), who not only finished third in her home state of Massachusetts but failed to win top place in a single state. Warren picked up just 27 new delegates in yesterday’s primaries, which now gives her a total of 36.

Rep. Tulsi Gabbard (D–Hawaii) earned one delegate in American Samoa, which may at least be enough to get her on the last Democratic primary debate stage with Biden, Bloomberg, Sanders, and Warren. Gabbard did not take first place in any states.

If Tulsi Gabbard gets a delegate out of American Samoa, as it appears she has done, she will likely qualify for the next Democratic debate. We don't have new debate rules yet, but party has been inviting any candidate who gets a delegate.

— Dave Weigel (@daveweigel) March 4, 2020

Billionaire former New York City Mayor Michael Bloomberg got the most votes in American Samoa, earning him four delegates. Bloomberg also picked up a few delegates in Arkansas, Colorado, and Texas—bringing him to a total of 12—but overall failed to make much of an impact.

What does it all mean? For one thing, it means there were a whole lot of irate leftists on Twitter last night. Sanders supporters seem to have been counting on Biden’s big shaming yesterday, which clearly didn’t pan out.

(Perhaps Sanders following up his early primary wins with praise for Fidel Castro’s literacy programs wasn’t the best move?)

In hindsight the week you took the frontrunner position was not the right time to get into the weeds on Cuba

— ed (@edkrayewski) March 4, 2020

Many on the left blamed Warren for supposedly siphoning off votes from Sanders and have been calling for her to drop out.

The biggest mistake I see Sanders folks making is assuming that all of Warren's supporters would have gone to Sanders if she weren't in the race. This just isn't true, especially in the last few days.

— Justin Hendrix (@justinhendrix) March 4, 2020

The night also cast doubt on the idea that Sanders is better at motivating voter turnout than Biden.

In states with the biggest differences in voter turnout between yesterday and Super Tuesday 2016—Virginia and South Carolina—Biden was the top candidate. And “exit polls for five southern states that Biden won—Alabama, North Carolina, South Carolina, Tennessee and Virginia—found that young voters did not show up at the polls in the numbers they did in 2016,” notes USA Today.

And while it will surely do nothing to dampen enthusiasm for hysteria about “money in politics,” Bloomberg’s huge personal cash infusion doesn’t seem to have helped him subvert democracy, or whatever it is that establishment Democrats have been fretting over. Besides embarrassing himself in a spectacular fashion, he helped show that fears about American oligarchs openly “buying elections” are overwrought.

Dude dropped literally half a billion of his own dollars and got nothing

Can we start to acknowledge the difference between reach and influence? https://t.co/nBrf0iYecW

— Jen Monroe ???????? ???? (@jenniferm_q) March 4, 2020

FREE MINDS

Libertarian Party (L.P.) primary contests were held yesterday in California, Massachusetts, and North Carolina. In North Carolina, the top vote-getting L.P. presidential candidates were Jacob Hornberger (8.7 percent), John McAfee (8.2 percent), Kim Ruff (7.9 percent), Vermin Supreme (5.9 percent), and Kenneth Armstrong (5.3 percent). But the top choice overall was no preference/none of the above, with nearly 30 percent of the vote:

The resounding win by No Preference/None of the Above in North Carolina’s Libertarian Party Presidential Primary, featuring an unfathomable list of potential follow-ups to what they built in a 2016 that 2020 is starting to echo, is the only interesting part of Super Tuesday. pic.twitter.com/IjSrkrAoZ8

— E. (@liberatore_e) March 4, 2020

As of Wednesday morning, California and Massachusetts winners were still unclear (with Hornberger, Jo Jorgensen, and Supreme leading in California).

Meanwhile, McAfee announced Wednesday that he was leaving the L.P. presidential race.

I regret
That I am ending my campaign for President.

I am instead
Attempting to run
For the Vice Presidential slot.

I have asked my Campaign Manager@Loggiaonfire
To contact the Campaign of Libertarian @VerminSupreme

And offer to be his VP pick.

Full explanation in video. pic.twitter.com/750ggzJdBY

— John McAfee (@officialmcafee) March 4, 2020

FREE MARKETS

California legislators are making changes to a much criticized “sex worker permit” bill, but its sponsor still doesn’t seem to get it. “We want to identify who can be the folks that can help us sound the alarm when there are any problems,” Assemblyperson Cristina Garcia told NPR, adding that the bill would apply to “dancers, web performers, porn stars.”

Garcia’s comments “confirm[ed] the suspicions of adult performers that AB2389 is a law enforcement bill disguised as a workers’ safety bill,” writes Gustavo Turner at XBiz. More:

The bill would, among other things, require government-sponsored training of sex workers on “safety” issues—something that Alana Evans, president of the Adult Performers Actors Guild (APAG), said groups like hers have long provided for performers themselves. From XBiz:

“[AB2389] is an unnecessary thing for the government to get involved in,” Evans added, before tallying up the annual cost to California taxpayers to $468,000 dollars, or $1.1 million if a new set of amendments Gullesserian has recently proposed were to be adopted.

“That’s over $1 million to have people do something I already do,” said Evans.

[…] The segment’s final guest was Antonia Crane, introduced as “a stripper and a sex worker for 26 years and a leader of  Soldiers of Pole, a California exotic dancers union.”

Asked about whether her group thought the state should be more involved in their work, Crane was unequivocal and succinct. “‘Role for the state?’ I’m with Alana. Kill the bill,” she said. “This is a money grab dressed up as a safety issue.”

More here.

QUICK HITS

• • San Francisco Supervisor Rafael Mandelman wants to bring back bathhouses.
  • Italy is closing all schools and colleges for two weeks to try to stop the spread of coronavirus in the country.
  • “Will the millennial aesthetic ever end?“
  • Computer scientist and Stanford professor Alex Stamos with a brief but good thread on gatekeeping information. Start here:

Outside of the academic work in this area (like @Klonick, @daphnehk and @evelyndouek) most people calling for short-term speech controls almost always call for censorship that lines up exactly with their own political beliefs without considering the long-term downsides.

— Alex Stamos (@alexstamos) March 3, 2020

Next up: progressives who called for strict political ad controls realizing that Twitter’s celebrated political ad ban benefits rich incumbents that can afford TV or already draw massive organic amplification.

— Alex Stamos (@alexstamos) March 3, 2020

• The more you know:

7 USC §7414(i)(4)(D) & 7 CFR §1212.81 make it a federal crime for an employee of the National Honey Board to reveal how a honey handler voted in a honey referendum.

— A Crime a Day (@CrimeADay) March 4, 2020

• How Reason staffers got through Super Tuesday results night:

This is, in fact, what I look like after I successfully make a peanut-butter-infused rum daiquiri with banana liqueur for the first time.

Recipe: https://t.co/UyuqpwA1gv https://t.co/vVNQpQw9tl

— Peter Suderman (@petersuderman) March 4, 2020

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