Tag: hit&run

In May, the death penalty died in New England. A bipartisan legislative majority in New Hampshire, the final state in the region to enforce capital punishment, voted to override Gov. Chris Sununu’s (R) veto of a bill abolishing the death penalty. At the time of his veto, Sununu urged those legislators to consider the “victims of violent crime across this state.”

While it is often assumed that victims of violent crime tend to support capital punishment, one of New Hampshire’s most outspoken death penalty critics lost his own father to an act of violence.

“I wanted to be more than somebody who is the son of a murder victim,” says Renny Cushing, a Democrat who represents the Rockingham district and serves as the chair of the state’s House Criminal Justice and Public Safety Committee. In 1988, Cushing’s father was shot and killed before his mother’s eyes. Similar tragedy struck his family again in 2011 when his brother-in-law was shot and killed in Tennessee.

His father’s death taught him that nothing “prepares one to be the survivor of a homicide victim.” When a family friend approached Cushing in a grocery store to express the hope that the state would “fry the bastard,” Cushing says he didn’t initially know how to respond.

His Irish Catholic upbringing called for him to stand by a consistent life ethic, he explains, which promotes the sanctity of life “from womb to tomb.” This influenced his opposition to the death penalty before he lost his father. Yet that family friend had assumed that his father’s murder would cause Cushing to change his position.

“As I thought about that over a couple of weeks, I realized that if I had done that, if I changed my position on the death penalty because my father was murdered, that would, in some ways, kind of be a compounding of the loss,” he says. Not only would he have lost his father, but he would have lost the values he held dear.

Confronting such assumptions was the beginning of Cushing’s anti-death penalty advocacy. In 1998, he presented his first death penalty repeal bill to the state legislature.

Twenty one years later, the repeal effort long championed by Cushing and others has finally paid off.

Bipartisan support was a major factor. “Ending New Hampshire’s death penalty would not have been possible without significant Republican support,” says Hannah Cox, national manager of Conservatives Concerned About the Death Penalty. “Increasing numbers of GOP state lawmakers believe capital punishment does not align with their conservative values of limited government, fiscal responsibility, and valuing life.”

The Republican side also had its own figure who was able to speak from the victim’s point of view. Sen. Ruth Ward’s (R–Stoddard) father was taken from her family by violence when she was only seven years old. While announcing her support for repealing the death penalty, she said, “My mother forgave whoever it was, and I will vote in favor of this bill.”

Another factor contributing to the repeal law’s success, says Cushing, is the general political attitude of the state’s people. “New Hampshire has a really incredibly strong libertarian streak,” Cushing points out. “In a state where we don’t trust the government to collect taxes or plow snow, certainly a lot of people don’t want to give the government the power to have a public employee kill incapacitated prisoners.”

Cushing has faith that the remaining 29 states that still use capital punishment will eventually change their laws too.

“I know as a state legislator and as someone who’s traveled around, who works on a national level on criminal justice policy with other legislators, that the trend is rapidly [going] away from the death penalty,” Cushing says. “And I think that you’ll see that increase in the coming few years.”

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Kellyanne Conway was a Republican pollster and TV pundit for decades before joining Donald Trump’s campaign in July 2016. Conway, who had initially supported Ted Cruz for the Republican nomination while criticizing Trump as “extreme” and “not a conservative,” quickly switched gears. But after Trump was elected and Conway moved from the campaign to the new administration as counselor to the president, she carried on pretty much as before, offering her opinions on election races and candidates for federal office in addition to defending Trump’s policy agenda. According to Special Counsel Henry Kerner, those partisan comments are not only unseemly but illegal, and Conway’s disregard for that fact is so frequent, blatant, and unrepentant that she should lose her job.

Kerner heads the Office of Special Counsel (not to be confused with the office of former Special Counsel Robert Mueller), an independent agency charged with enforcing the Hatch Act. Among other things, that law prohibits executive branch employees (except for the president and vice president) from using their “official authority or influence” for “the purpose of interfering with or affecting the result of an election.” The OSC’s recommendation that Trump fire Conway for repeatedly violating that rule will go nowhere, since Conway is doing exactly what Trump wants her to do. But Kerner’s case against Conway provides a good opportunity to reflect on the tension between the Hatch Act’s noble goals and the First Amendment right to freedom of speech.

“While the Hatch Act allows federal employees to express their views about candidates
and political issues as private citizens, it restricts employees from using their official government positions for partisan political purposes, including by trying to influence partisan elections,” Kerner observes in his first report on Conway, issued in March 2018. “In passing this law, Congress intended to promote public confidence in the Executive branch by ensuring the federal government is working for all Americans without regard to their political views.” Another way of putting it is that taxpayers have good cause to object when their money is used to pay executive branch officials who engage in partisan political activity on the job.

In Kerner’s view, that means Conway, while appearing on TV as the president’s spokeswoman, should show some discretion, which is not her strong suit. According to Kerner (a Trump appointee), it’s fine for Conway to explain and defend Trump’s policies, which is part of her job. It is even OK for her to explain why Trump favors one candidate over another in a particular election—Republican Roy Moore rather than Democrat Doug Jones in Alabama’s 2017 special Senate election, for example. But when she ventures beyond communicating Trump’s positions to offer her own views on people running for office (something she was long accustomed to doing in her prior occupations), she runs afoul of the Hatch Act.

White House Counsel Pat Cipillone, in his response to the report on Conway that Kerner issued yesterday, tries to minimize the extent to which Conway has done that. But it seems clear that Conway feels no compunction about crossing the line drawn by Kerner. Here is what she said about Doug Jones during a November 2017 appearance on Fox & Friends:

Folks, don’t be fooled. He’ll be a vote against tax cuts. He’s weak on crime, weak on borders. He’s strong on raising your taxes. He’s terrible for property owners.…And Doug Jones is a doctrinaire liberal, which is why he’s not saying anything and why the media are trying to boost him.

Conway likewise has not been shy about criticizing the numerous Democrats vying for their party’s 2020 presidential nomination. During a February 1, 2019, appearance on Fox & Friends, she questioned presidential contender Cory Booker’s accomplishments and suggested that if he were a Republican he would be deemed “sexist” for jumping into a race that already included several of his female Senate colleagues.

On the same show later that month, Conway remarked on the growing field of Democratic presidential contenders: “Great. Keep it coming. Just remember anything times zero still equals zero.” She added, “I'[ve] yet to see presidential timber. I just see a bunch of presidential wood chips.” Conway has used variations on those lines in several other TV appearances. She also has criticized Sen. Amy Klobuchar (D-Minn.) for mistreating her staff, Sen. Elizabeth Warren (D-Mass.) for “appropriating somebody else’s heritage and ethnicity,” and Sen. Kirsten Gillibrand (D-N.Y.) for making a big deal out of eating fried chicken (or something).

Toward the end of a March 13 appearance on The Ingraham Angle, Conway brought up Warren again: “Elizabeth Warren is running for President. She tried to appropriate somebody else’s ethnicity. She lied about that.” In another Fox News interview the following month, Conway commented (accurately) that “Bernie Sanders’ ideas are terrible for America.” She has repeatedly criticized former Vice President Joe Biden for invoking the 2017 white supremacist rally in Charlottesville, Virginia, when he launched his presidential campaign, saying that choice showed “he doesn’t want to be held to account for his record or lack thereof.”

There are more examples, but you get the idea. This is all standard stuff for a Trump-supporting TV talking head. But Kerner thinks the Hatch Act demands more circumspection, and Conway, who has been repeatedly warned about such partisan commentary, plainly does not care what Kerner thinks, although it is consistent with the way the Hatch Act has been applied to other officials. According to the OSC, for example, Dan Scavino, the current White House director of social media; Kathleen Sebelius, Barack Obama’s secretary of health and human services; and Julian Castro, Obama’s secretary of Housing and Urban Development, violated the Hatch Act by, respectively, urging Trump supporters to oust Rep. Justin Amash (R-Mich.), calling for Obama’s re-election, and endorsing Hillary Clinton. Those one-off violations look pretty minor next to Conway’s long list of transgressions.

In practical terms, the Hatch Act requires that Conway watch what she says when she goes on TV, where she is routinely identified as a special counselor to the president and  frequently speaks from the White House itself. That sacrifice of what would otherwise be her First Amendment right does not seem like an unreasonable burden to impose on someone who has chosen to take a high-profile job in the executive branch. It is analogous to speech restrictions a business might impose on an employee when he is acting as the company’s spokesman. In this case, Conway works for the American public, whose elected representatives have decided she should not use her position to elect or defeat political candidates. If Conway wants to say whatever pops into her head during TV interviews, she can always resume her career as a private-sector pundit.

While there are credible arguments that the Hatch Act sweeps too broadly to be consistent with the First Amendment, Cippilone does not argue that the law is unconstitutional. He just thinks it should not stop Conway from continuing to comment on political candidates, even when she is acting in her official capacity.

Conway herself takes the same position, arguing that she has not violated the Hatch Act. “Blah, blah, blah,” she said when a reporter described the findings of Kerner’s 2018 report. “If you’re trying to silence me through the Hatch Act, it’s not going to work.” But if Conway’s habitual criticism of Democratic candidates does not count as trying to influence an election, what would?

Conway is on firmer ground when she objects to the restrictions Kerner wants to impose on her personal Twitter account, which she created in 2012. Kerner argues that Conway may not talk about politics there either, because “most” of her tweets are “directly related to her role in the Administration.” The OSC says executive branch employees “may not engage in political activity on official social media accounts or on a personal social media account if they are using that account for official purposes or posting in their official capacity.”

Cipillone argues that Kerner does not have the legal authority to impose that rule, since neither the Hatch Act nor the regulations implementing it address social media. He also maintains that Kerner has mischaracterized Conway’s Twitter feed, noting that it includes personal tweets as well as political commentary and references to Trump administration initiatives.

“OSC’s overbroad and unsupported interpretation of the Hatch Act risks violating Ms. Conway’s First Amendment rights and chills the free speech of all government employees,” Cipillone writes. “Such a broad interpretation of the law would impermissibly prohibit Ms. Conway from continuing to make comments in her personal capacity through a personal media distribution channel she had established long before entering public service….Ms. Conway does not surrender her First Amendment right to comment on these same topics in her personal capacity, using her personal social media account, simply because she answered the call to serve in our federal government.”

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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Last week, Texas put an end to one of the state’s most bafflingly counterproductive policies: suspending residents’ occupational licenses if they defaulted on their student loans. Not only did these suspensions wreak havoc on Texans’ finances and livelihoods, but they also made it fiendishly difficult for people to actually repay what they owed. In 2017 alone, state agencies threatened the licenses of more than 4,200 professionals—including cosmetologists, nurses, and teachers—simply for unpaid student debt. Over at Forbes.com, IJ’s Nick Sibilla has more.

• In 2017, the feds adopt policy that essentially bans unaccompanied minors in immigration detention from obtaining abortions. D.C. Circuit: Can’t do that. Dissent: The case is moot, and the class should not have been certified as is because, among other things, it almost certainly includes individuals who think abortion is murder.
• Consignment business that sells kids’ clothing relies on parents to help set up the sales. In exchange, they get first pick of the merchandise. Labor Department sends a letter informing business that the parent “volunteers,” who work one or two days a year, are actually employees. So start paying them or else. D.C. Circuit: Indeed. The volunteers look enough like employees to us. Concurrence: Probably should’ve called ’em independent contractors.
• According to legitimate locksmiths, “scam” locksmiths are tricking search engines into making the scammers appear more geographically available than they actually are. But that doesn’t mean the legitimate locksmiths have a claim against the search engines, holds the D.C. Circuit. Congress has made clear that websites are free to publish all the information from third parties that they want.
• Allegation: NYC building inspector has it out for Asians in the construction industry, so much so that he visits job sites and issues violations on his own time, while off duty. Second Circuit: Which may very well violate the Equal Protection Clause. It doesn’t violate the Due Process Clause, though, because the official’s harassment hasn’t completely driven the plaintiff out of business.
• Without warning or provocation, worker at Amazon shipping facility punches coworker in the face repeatedly. He tells Chesterfield County, Va. police that he “does not like homosexuals, so he punched” the victim. Fourth Circuit (over a dissent): Interstate commerce is implicated, so the feds can prosecute him.
• Allegation: Maryland corrections officer is falsely accused of sexually harassing female coworker. In the course of the investigation, the officer reveals that he is gay and HIV positive. The sexual harassment complaint is not sustained, but he’s fired anyway. Sexual orientation discrimination? Fourth Circuit: The state hasn’t waived sovereign immunity, so his state law claim can’t go in federal court.
• Uncounseled plaintiff sues the University of Texas for gaslighting him—that is, per dictionary.com, manipulating him by psychological means into questioning his own sanity. Skipping over whether gaslighting is indeed a tort, the Fifth Circuit affirms dismissal. The state hasn’t waived sovereign immunity.
• Timothy Ivory Carpenter—winner of last year’s Supreme Court ruling on Fourth Amendment protections for cell phone location data—will remain in prison. So holds the Sixth Circuit, on remand from SCOTUS. Even though officers violated the Fourth Amendment with their warrantless search of Carpenter’s cell phone location data, they acted in good faith. So Carpenter’s conviction stands. (Memorious Court-watchers will recall that Justice Alito forecast this result in the closing moments of oral argument.)
• Michigan Department of Health and Human Services allegedly collects blood samples from newborns without parents’ consent, tests them, then transfers them to a nonprofit corporation, “where they are stored for future use by the state.” Parents sue on behalf of themselves and their children. Sixth Circuit: Most of the claims are nonstarters, but Michigan’s ongoing storage of the blood samples may violate the kids’ Fourth Amendment rights and the parents’ Fourteenth Amendment right to direct their offspring’s medical care.
• Allegation: Drunk driver is taken to Oakland County, Mich. jail, where male guards subject her to a vicious strip search. Guards: But the hood we put on her to stop her from spitting meant she couldn’t tell us apart. So we should get summary judgment because “she cannot prove . . . who was the one to twist her arm behind her back, rip her pants off, touch her genitals, etc.” Sixth Circuit: That is absolutely not how this works.
• Illinois corrections officials institute a “brunch” program, a bougie euphemism for serving prisoners two meals a day instead of three. Prisoner sues, claiming that the program gave him too few calories. Which, says the Seventh Circuit, the undisputed record rebuts. The program’s designer submitted an affidavit that the two-meal brunch menu supplied the same number of daily calories as the regular three-meal menu.
• “If a federal law-enforcement officer lies, manipulates witnesses, and falsifies evidence, should the officer be liable for damages?” Despite the lede, the Eighth Circuit immediately answers “no.” Specifically, a St. Paul, Minn. police officer who allegedly fabricated a sex trafficking conspiracy cannot be liable under Bivens. (No qualified immunity for the officer, though.)
• If a police officer questioned you and then left to investigate a building, you might think you were free to drive away. If that police officer then followed you on the highway for 19 miles, you might turn on your hazards and pull over. And if you feared for your life because you’re black and the officer knows you have a concealed weapons permit, you might put your hands outside the driver’s side window. Eighth Circuit: While that behavior is entirely consistent with wanting to avoid being shot, it’s also “unusual and may be indicative of guilty conduct.” Qualified immunity for the officer, who ordered plaintiff out of his car at gunpoint. Concurrence: Sounds like a Fourth Amendment violation but not a clearly established one. So, yeah, qualified immunity.
• Acting on an anonymous tip, ICE agents obtain a warrant for employment-related documents at a California factory. In the course of executing this warrant, 100 armed agents descend on the factory, block all exits, prohibit workers from using their phones, and ultimately arrest 130 undocumented workers (which, in fact, was their plan all along). A Fourth Amendment violation? Ninth Circuit: You can’t use a search warrant for documents as a pretense to detain, interrogate, and arrest literal busloads of people.
• Absent-minded bank robber inadvertently places closed pocketknife on bank counter while providing teller with money bag. (The record is silent on whether the bag sported a dollar sign.) Gov’t: That’s “armed bank robbery”! Ninth Circuit: Hardly. Armed bank robbery requires “active employment” of a weapon, and there was no active employment here. The district court thus plainly erred in accepting the robber’s guilty plea.
• Saudi citizen sentenced by Colorado court to eight years to life (for imprisoning, sexually assaulting teenage housekeeper from Indonesia) seeks to serve the remainder of his sentence in Saudi Arabia. Colorado officials deny the request. Tenth Circuit: There is no constitutional right to a hearing before officials make such a decision.

Forfeiture doesn’t help police fight crime, but police do use forfeiture to raise revenue—so finds a new IJ study. These findings may not surprise you, dear reader, but proponents frequently tout forfeiture as a key crime-fighting tool while denying critics’ charge that forfeiture is used to police for profit. That’s why IJ teamed up with Seattle University’s Dr. Brian D. Kelly to test these opposing views of forfeiture. The resulting study, titled Fighting Crime or Raising Revenue?, combines local crime, drug use, and economic data with more than a decade’s worth of data from the nation’s largest forfeiture program. It finds that more forfeiture proceeds do not help police solve more crimes or reduce drug use, but police do ramp up forfeiture activity when local economies suffer. Read the report.

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City on a Hill. Showtime. Sunday, June 16, 9 p.m.

The most wince-inducing expression in American politics is the “city on a hill” metaphor from Jesus’ Sermon on the Mount. Jesus was encouraging his followers to evangelize (“a city on a hill cannot be hidden”). American politicians from John F. Kennedy to Ted Cruz have used it to imply the Big Guy was a believer in American exceptionalism, which seems a stretch—the United States didn’t come along for another 2,000 years or so—but is nothing compared to the rhetorical gymnastics of the first pol to swipe the phrase, Massachusetts Gov. John Winthrop.

Winthrop used it in a 1650 sermon to demand conformity to Puritan religious doctrine. That included, infamously, putting “witches” and other non-Christians to death, exiling Puritan dissidents and applauding God for sending smallpox to clear out nettlesome local Indians. Call Winthrop undemocratic if you will; he’d revel in the accusation. “A democracy is, amongst civil nations, accounted the meanest and worst of all forms of government,” he wrote.

Showtime’s new cops-and-robbers drama City on a Hill is definitely using the title in the Winthropian sense. Set in Boston during the city’s corrupt, crime-ridden nadir in the 1990s, City on a Hill is the sort of show where cops blackmail not only suspects but one another; where a thoughtful husband is one who doesn’t pass along his herpes infection to his wife; where even mourners at funerals have to be bribed to attend; where the mom of a bullied schoolgirl doesn’t call either the cops or the principal, just advises her daughter: “You have my permission—break Johnny’s dick!”

Partly concocted from leftover bits of the previous Boston crime movies made by executive producers Ben Affleck and Matt Damon (particularly Affleck’s 2010 production The Town), and partly from screenwriter Chuck MacLean’s fictionalized account of the political cleanup known locally as the Boston Miracle, City on a Hill could reasonably be mistaken for a Bean Town version of The Wire.

Like The Wire, it explores the nexus between crime and politics, and it features the same character array of the clever and the clueless, the ambitious and the burned-out, as a criminal justice task force creakily rouses itself to pursue a nimble criminal syndicate. The resemblance will only grow if City on a Hill is a ratings success, gets brought back for a second season, and—as rumor has it—Affleck and the others turn their characters’ attention away from bang-bang crime to public-works corruption and other more purely political matters.

But for now, City on a Hill focuses on an unlikely alliance of corner-cutting cops and idealist prosecutors hunting an elusive and murderous gang of armed robbers who target cash-delivery armored cars.

Kevin Bacon plays Jackie Rohr, a coke-snorting, informant-banging, wise-assing FBI agent who’s quick with his fists and slow to see any need to clean up Boston law enforcement. “What used to make this city great,” broods Rohr, “was that it was run by bad men who understood that they were bad…Now you can’t even call a guy a faggot.” Once admired for single-handedly taking down an entire Mafia family, Rohr is now mostly known for his thorough dissolution.

The reform efforts of which Rohr is contemptuous include the appointment of a black assistant D.A. who served on a police-reform commission. Decourcey Ward (Aldis Hodge, WGN’s escaped-slave drama Underground) is an outsider from Brooklyn who’s derided by both other cops and prosecutors as well as black community activists.

Despite his utter lack of support from anyone on any side, Ward refuses to quit for a corporate sinecure at the firm where his wife works. “I like what my job should be,” he insists, to which his wife retorts: “That’s not the way things are.”

When the robbers kill the entire crew of an armored car in Charlestown, the deeply alienated Irish neighborhood where gangsters like Whitey Bulger operate with police protection, it presents Rohr and Ward with a delicious target of opportunity. Busting the gang would be a high-profile case that would also show up the ineptitude of the local cops. For Rohr, it would be a big score that would allow him to coast into lucrative retirement in the private security industry; for Ward, a chance to lash out at a system he despises, particularly the boss who’s keeping him on a short leash: “Fuck him, fuck all of ’em, fuck anyone else who gets in my way.”

The action in City on a Hill—both the shoot-em-ups and the political intrigue—is staged competently enough, but it’s nothing you haven’t seen before in half a dozen or more premium cable shows (including, to be sure, The Wire). What makes City on a Hill go is the performances, especially those of Bacon and Hodge.

Hodge has a reserved elegance as the sort of prep-school-groomed black professional that establishment liberals like to say “cleans up real well.” But the smooth exterior conceals a bubbling-up rage that can explode at any moment. And Bacon’s portrayal of the borderline-scummy Jackie Rohr is simply riveting, one of those things you can’t take your eyes away from as he lies, cheats, steals, philanders, and yet somehow still summons enough all-but-forgotten professional skill to get a difficult job done.

Bacon has spent much of his career in quirkily memorable supporting roles that have left viewers thinking of him as an eccentric player of eccentric characters, the poor-man’s-John Travolta of Footloose or the desert rat battling giant earthworms in Tremors; or as the punch line of a hipper-than-thou joke.

But in City on a Hill and his last television project—The Following, in which he played a deeply damaged FBI agent running on rage alone as he pursues a cult serial killer—he’s been bigger than life, an eyeball magnet who cannot be contained. Maybe it’s time he’s recognized as one of the leading actors of his generation.

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On Wednesday, Bernie Sanders, the independent senator and a candidate for the Democratic presidential nomination, delivered a major speech on socialism. Titled, “How Democratic Socialism Is the Only Way to Defeat Oligarchy and Authoritarianism,” the speech sought to give us Sanders’ own definition of socialism. But the address left enough lingering questions that it might better be understood as a declaration simply that Sanders is a socialist, whatever that is.

Socialism—what it is, whether it’s any good, and who counts as a socialist—has become a major divide in the Democratic primary and is likely to play a role in the 2020 general election, no matter who is on the ticket.

Former Colorado Gov. John Hickenlooper (D), one of the many low-polling extras in the cast-of-thousands production that is the Democrats’ 2020 primary, recently told a group of California Democrats that “socialism is not the answer,” and has said he wants to differentiate his candidacy by opposing the idea.  

In the run-up to the socialism speech, as Edward Isaac-Dovere reported in The Atlantic, some of Sanders’ primary rivals offered careful non-responses, criticism, and reactions that are revealing in other ways: Sen. Michael Bennet (D–Colo.), another low-ranked primary candidate, heard the title of the speech and said, “I don’t think the American people even know what that means.” And it’s not just back-benchers rolling their eyes. When Sen. Elizabeth Warren (D–Mass.), arguably the candidate closest to Sanders in terms of policy outlook, heard the name of the speech, she laughed.

Looked at one way, Sanders is losing the battle over socialism. His rivals laugh at him, and the leading contender for the primary, according to the (yes, still very early) polls is former Vice President Joe Biden, who has branded himself a moderate with an insider’s track record, in direct contrast to Sanders’ ornery outsider approach to politics. At the beginning of the year, a majority of Democratic and Democratic-leaning voters told Gallup they wanted a party that was more moderate, not more liberal. That hardly sounds like a recipe for a socialist takeover.

Yet Sanders has remained near the top of the polls all year, even in a primary field that looks like a Where’s Waldo? splash page. Millennials have embraced socialism in record numbers, and socialism, once an insult even within the Democratic party, is no longer a dirty word, at least among the party’s rising stars and most engaged activists. That’s largely thanks to Sanders’ scruffy insistence on using the word. (For someone who finds capitalism so distasteful, he’s pretty good at marketing.) Candidates like Hickenlooper who have directly attacked socialism have faced strong internal resistance; he was loudly booed at the California Democratic Convention, and he and Bennett are far behind in the race.

Most importantly, the Democratic party has shifted its policy priorities. Sanders’ agenda is not quite the Democratic party’s agenda, but Democrats are far closer to Sanders’ democratic socialist platform than they were a decade or two ago. The Democratic party may not be branding itself as the party of socialism, and compared with left-leaning parties around the world, its socialist tendencies are less pronounced, but it is certainly closer than it has been in decades. The Democratic party isn’t really arguing about what direction to go, just precisely how far.

Beyond the Democratic party, an inclination toward socialism, or something like it, has taken hold: The generalized mood of American voters is more liberal than at any time in the last 68 years. Left-leaning economic theories have gained new prominence in the wake of the financial crisis.

Even Republicans seem to have developed a soft spot for what are essentially socialist ideas; President Trump campaigned on the promise not to touch Medicare or Social Security, America’s largest socialized benefit programs. These entitlements remain vastly popular with seniors, a group that otherwise leans to the right. Over the last year, multiple polls have found a majority of Republicans support for Medicare for All, the most prominent of Sanders’ policy goals. 

Trump may be running (somewhat incoherently) against the word “socialism” but it seems clear that a non-trivial portion of his supporters favors at least some components of the democratic socialist agenda. Many voters, as well as at least a few politicians, remain confused about what Medicare for All means, but these surveys nonetheless suggest that the American electorate has socialist tendencies.

Which may explain why Sanders’ speech was mostly a recitation of familiar talking points about the New Deal, socialism’s various economic guarantees, the problems with Donald Trump, and the evils of “unfettered capitalism”—which mostly seems to be an objection to the existence of individuals who are very rich.

The democratic socialism Sanders is promoting has an agenda, of sorts, but deep down, it’s less a platform than a tendency, a manner of understanding politics and economics that is light on particulars and heavy on easy assumptions about the way the world should be and what it should offer, namely a litany of government benefits, regardless of the political and fiscal hurdles involved. It’s an airy and reckless populist fantasy of broad social and economic transformation—an ideology, yes, but also an attitude, one that will take whatever support it can get. And regardless of how Sanders himself fares in this race, it is likely to inform our politics for years to come.

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In the wake of reports that Amazon paid no federal taxes last year, Democratic presidential hopeful Joe Biden took to Twitter yesterday to complain about the tech behemoth’s tax bill:

I have nothing against Amazon, but no company pulling in billions of dollars of profits should pay a lower tax rate than firefighters and teachers. We need to reward work, not just wealth. https://t.co/R6xaN3vXGT

— Joe Biden (@JoeBiden) June 13, 2019

Amazon wasn’t having it. “We’ve paid $2.6B in corporate taxes since 2016,” it tweeted back. “We pay every penny we owe. Congress designed tax laws to encourage companies to reinvest in the American economy. We have. $200B in investments since 2011 & 300K US jobs. Assume VP Biden’s complaint is w/ the tax code, not Amazon.”

First things first: Amazon does indeed pay taxes. In 2018, it shelled out $1.18 billion in local, state, and international income levies.

Federal corporate taxes are a different story, since Congress specifically devised them with a set of deductions meant to incentivize investment, create jobs, and spur economic growth. And Amazon does all that. In 2017, for instance, it invested $22.6 billion in research and development—the highest of any company that year. That huge number is just one such deduction included in the tax code, which explains how Amazon skirted federal taxes even with an impressive $11 billion in profits.

It’s misleading for Biden to complain that these numbers indicate that the tax code is rewarding wealth instead of work. Research and development are work, after all. If Amazon were getting a tax break for letting money gather interest in the bank, his complaint might make sense, but that’s not what’s going on here.

This isn’t the first time a company has faced ire for its tax history. In response to a barrage of headlines about Netflix paying $0 in taxes, for example, the streaming service pointed out that it had shelled out $131 million in cash levies in 2018. Those taxes were international, which the U.S. credits.

And in May 2019, Delta CEO Ed Bastian defended the airline’s tax filings on the Corner Office podcast:

We’re following the tax code. Delta, as you recall, lost a lot of money. We lost almost $20 billion post-9/11. We went through some very difficult economies over the last 20 years. And so, what we’re doing is we’re able to offset the losses of those years against the profits of today. We have probably only have about another year or so left in those losses, and then at that point then we should start being a cash taxpayer once again. But, you know, these are hard-earned losses, I would say, that we utilize, and our people had real pain attached to them. I am proud that we’ve got the best profit-sharing plan in corporate America for our employees. They get 15% of the profits of the company; $1.3 billion we paid last year, so yeah, I think we’re doing our share.

You could make a reasonable case that it’s better to tax companies at a consistent rate than to try to encourage or discourage different sorts of behavior via the tax code. But it seems inappropriate to condemn companies for taking advantage of the incentives enshrined in the law. And you shouldn’t say a company isn’t paying any taxes when its tax bill is actually more than a billion.

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In California jails and prisons, you can have your pot but you can’t smoke it. So ruled the state’s Third District Court of Appeals this week.

Californians voted in 2016 to legalize possession of small amounts of marijuana via Proposition 64. The ballot initiative did not differentiate between the types of people who were allowed to possess pot, other than requiring them to be over the age of 21. This means that, technically, people who are in jail cannot be criminally charged for having small amounts of marijuana. Proposition 64 overrides previous laws against simple possession.

But Proposition 64’s language did not authorize consumption of marijuana in jails and prisons, which is separately forbidden under California law. Smoking pot when you’re imprisoned is a felony. And so inmates are in a weird marijuana purgatory: They cannot be charged for having marijuana within the state’s possession limits, but they cannot legally smoke any of it either.

California’s attorney general, Xavier Becerra, tried to resolve the tension by continuing to enforce a criminal ban on marijuana possession behind bars. But this week the appeals court said he couldn’t do that, overturning the convictions of five inmates sentenced for having marijuana in jail. The three-judge panel’s 20-page ruling makes it clear: California voters legalized marijuana possession in these circumstances. The end. The fact that inmates can be charged with a crime for smoking the marijuana is a completely separate matter.

The judges were asked to determine whether such an outcome is “absurd,” and they concluded it is not: “A result is not absurd just because the outcome may be unwise.”

That “unwise” outcome includes the fact that jails can still ban pot administratively and punish possession as a rule violation. The San Jose Mercury News notes that prisoners caught with marijuana can have their good behavior credits revoked (meaning longer sentences) or be sent to “segregated housing”—solitary confinement. And of course, because marijuana possession remains a federal violation, an inmate caught with pot could face federal charges.

The rather unusual outcome is a reminder that even in states that have legalized recreational marijuana use, there are still a lot of ways the government can continue to punish people for toking up.

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It’s been a bad few days for Bernie Sanders.

On Wednesday, for the first time during the 2020 presidential primary cycle, the independent socialist senator from Vermont trailed his progressive Massachusetts neighbor Sen. Elizabeth Warren in a poll—13 percent to her 19 percent, according to a June 6–11 Monmouth University survey of 370 likely voters in Nevada.

Then it happened nationally, this time in a June 9–11 YouGov poll of 513 likely voters, who preferred Warren over Bernie 16 percent to 12 percent. And Thursday, Warren again nudged out Sanders for second place, 18 percent to 17 percent, in a June 4–10 Berkeley survey of 2,131 likely voters in the delegate-rich state of California.

“Warren and Sanders are going in opposite directions,” declares Jennifer Rubin’s headline in the Washington Post. “Warren challenges Sanders for progressives’ 2020 support,” notes the Minneapolis Star-Tribune. Things have gotten so bad that Bernie surrogate David Sirota is desperately beclowning himself while doing damage control on Twitter.

This is complete BS. Sanders was polling at 19-20% in the RCP average at the end of April, and he's at 17.3% now. Rather than surging, he's lost a couple points. https://t.co/vxnvqEMPRZ https://t.co/YkWEtJWsa7

— Nate Silver (@NateSilver538) June 12, 2019

The turnabout is head-snapping—Sanders averaged more than 22 percent in national polls during February, Warren under 7 percent, yet here they are virtually tied at around 17 percent in three polls taken this week. Yet the competitive turbulence masks a remarkable and potentially race-shaping stability. The progressive lane in the 2020 Democratic field has been stuck at around 30 percent of the polls all year long.

Here is the combined average performance in national polls by Sanders and Warren since February:

February: 28.8 percent (Bernie ahead by 15 percentage points)

March: 29.2 percent (Bernie +17)

April: 26.0 percent (Bernie +12)

May: 25.5 percent (Bernie +9)

June: 29.0 percent (Bernie +4)

You can sprinkle in the other most progressive candidates in the field—Washington Gov. Jay Inslee, New York Mayor Bill de Blasio, gun-grabbing impeachment advocate Rep. Eric Swalwell (R–Calif.), Miramar Mayor Wayne Messam—and still you’ll never go higher than a combined 30 percent from the out-and-proud progressive camp.

Now take a look at the comparatively centrist duo of Joe Biden and South Bend Mayor Pete Buttigieg:

February: 30.9 percent (Biden +30)

March: 32.4 percent (Biden +29)

April: 37.6 percent (Biden +24)

May: 42.0 percent (Biden +30)

June: 39.0 percent (Biden +22)

When you add in lower-performing candidates who are running explicit I’m-not-a-damned-socialist campaigns—John Hickenlooper, John Delaney, Rep. Tim Ryan (D–Ohio), Rep. Seth Moulton (D–Mass.), Montana Gov. Steve Bullock, Sen. Michael Bennet (D–Col.), and maybe, depending on how you assess such things, Beto O’Rourke and Sen. Amy Klobuchar (D–Minn.)—you get a center lane that’s been creeping steadily higher toward 50 percent.

All the caveats about early presidential primary polls are still relevant, and you should read Stephanie Slade’s refresher course here, or just pull up random poll-related headlines from four years ago this month, such as “Jeb Bush surges to lead GOP pack in new 2016 poll.” And don’t even get the nerds started about the error rates of national general-election matchups this far out.

But one main reason to discount early polls is that the candidate field is not yet set—the Jeb Bush poll referenced above, for example, was prior to the grand entrance into the campaign by one Donald J. Trump. It’s entirely possible that this dirty two dozen is all we’re going to see in the Democratic 2020 competition.

Once the GOP roster was set in the summer of 2015, the establishment grouping of candidates—Bush, Chris Christie, Sen. Marco Rubio (R–Fla.), etc.—never combined for more than about 25 percent in national polls. Enthusiasm for the individuals within it waxed and waned, but the category as a whole was never popular. Might we be seeing a similar dynamic with the progressive cluster of 2020 Democrats?

I’m skeptical. Warren’s recent poll surge appears to be growing the category—in the California poll, she and Sanders combined for 35 percent, and in the three national polls this week, 34 percent. Anecdotally, I see a lot of enthusiasm for Warren (particularly among journalists!), coming from people who would not describe themselves as democratic socialists.

And the more important point may be that Bernie et al win even by losing—the party and field continues to move in his direction, policy-wise, with Beto O’Rourke praising the Green New Deal, Sen. Cory Booker (D–N.J.) running away from his school-choice past, Sen. Kamala Harris (D–Calif.) pretending to be a criminal justice reformer, and rusty weather vane Joe Biden reversing decades’ worth of abortion stances. Talking about a progressive “lane” may be a little beside the point.

Still, with the first debates right around the corner, it will be interesting to see which open ideological spaces Democrats will see opportunity in running toward.

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Reason‘s Robby Soave has been writing about culture, free speech, due process, and moral outrage on campus since joining the magazine in 2014. Next week will see the release of his first book, Panic Attack: Young Radicals in the Age of Trump, which examines the ascendancy of the intersectional left and the identitarian right.

Soave was one of the first reporters to question the veracity of a Rolling Stone article that accused several fraternity brothers of a horrific gang rape at the University of Virginia—a story that the magazine later retracted because of insufficient evidence. Earlier this year, when a clip of MAGA-hat-wearing high school students appearing to intimidate a Native American man went viral, Soave was one of the first journalists to carefully scrutinize the raw video, discovering that the interaction was more complicated than the initial outraged reports had claimed. Major media organizations later looped back to acknowledge that they had erred in their reporting.

Reason‘s Zach Weissmueller talked with Soave in front of a live audience at Reason‘s L.A. office about his experience reporting and writing the book, today’s political climate on campus, and why he thinks the college activists’ emphasis on identity is misplaced.

Subscribe, rate, and review our podcast at iTunes.

Audio production by Ian Keyser.

 

 

 

 

 

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White House jack-of-all-executive-branch-positions and former Tea Party congressman Mick Mulvaney reaffirmed Tuesday that he is abandoning his interest in bringing fiscal responsibility to the federal government. Asked during a panel discussion at the Peter G. Peterson Foundation if he was still a deficit hawk, the acting chief of staff said, “Show me the majority for cutting spending.”

Sadly, he probably has the politics right. As Kate Davidson wrote in The Wall Street Journal today, Republicans, Democrats, the general public, and even some economists have all lost interest in reducing deficits over the past few years.

Instead, Mulvaney argued for reducing the rate of spending growth so that revenues can grow faster than government expenditures. According to Mulvaney, sustained economic growth of 3 percent annually would make a dent in the deficit by increasing the amount of revenue the government collects.

But that sort of growth is probably unrealistic—and even if it does happen, it won’t be enough to bring the budget into balance.

While the economy did grow roughly 3 percent in 2018, the Congressional Budget Office’s most recent estimates suggest that real growth will average roughly 1.8 percent over the next decade. Even if you go with the Tax Foundation’s more optimistic projections about the Tax Cuts and Jobs Act’s impact, annual economic growth would only be an average of 0.29 percent higher over the next decade than it would be without the tax cuts.

The Committee for a Responsible Federal Budget, a nonpartisan nonproft that advocates for balanced budgets, projects that it would take at least 4.8 percent average annual growth over the next decade to balance the budget. There’s “no reasonable amount of sustained economic growth that would sufficiently fix our fiscal problems,” the group’s president, Maya MacGuineas, tells Reason.

And while higher growth does help address the deficit in some ways, it doesn’t address one of the chief sources of our long-term fiscal problem: Social Security costs. Higher incomes mean more payroll tax revenue today, but also larger Social Security benefit obligations in the future.

Strong economic growth alone can’t balance the budget in the short term either. Last year saw the fastest growth in more than a decade, yet the federal government ran a $779 billion deficit. And that’s not just a product of the 2017 tax cuts; the Bipartisan Budget Act of 2018 hiked federal spending by $300 billion over the next two years. By now, Republican lawmakers like Ways and Means ranking member Kevin Brady (R–Tex) are acknowledging what every major analysis of the tax cut predicted before it was passed: It will not pay for itself.

One evergreen problem with trying to impose fiscal responsibility is that the debt lacks immediate, tangible downsides—there hasn’t been a meltdown yet, so why should anybody be concerned? But its long-term effects are real. According to the Congressional Budget Office, a family of four could see up to $4,000 less in annual income by 2028 if the debt rises according to projections, and up to $16,000 less in annual income by 2048.

Mulvaney might still personally believe in the need to cut expenditures, but he hasn’t had much success convincing his boss of that. In Maya McGuineas’ words, the acting chief of staff is “part of an administration that has had a terrible record” on controlling spending.

And Mulvaney is making that worse. On a difficult issue like deficit reduction, political leaders need to commit to the issue. When the president’s chief of staff signals a lack of interest in serious spending reforms, that only makes it harder to get that commitment.

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