Month: January 2022

Madison Cawthorn, a 26-year-old real estate investor who was elected to represent North Carolina’s 11th Congressional District in 2020, is one of many Republican politicians who have reinforced Donald Trump’s fantasy that Joe Biden stole the presidential election. Based on Cawthorn’s embrace of the “stop the steal” movement, his opponents are trying to prevent him from seeking reelection this year, arguing that he is disqualified from serving in Congress because he “engaged in insurrection” against the U.S. Constitution by inciting the Capitol riot.

That far-fetched claim, which implies that many of Cawthorn’s colleagues in Congress are likewise barred from federal office, is getting a serious hearing because North Carolina has a low threshold for seeking to prevent allegedly disqualified candidates from appearing on the ballot. When a challenger provides evidence to support a “reasonable suspicion or belief” that a candidate “does not meet the constitutional…qualifications for the office,” the candidate has the burden of showing “by a preponderance of the evidence” that he is in fact qualified. According to the voters who challenged Cawthorn’s candidacy, that means he “must prove that he was not involved in the insurrection of January 6, 2021.”

South Texas College of Law professor Josh Blackman noted some of the legal obstacles to that lawsuit earlier this month. In addition to those issues, the case for viewing Cawthorn as an insurrectionist rests entirely on his rhetorical support for Trump’s cause, which the challengers claim “led directly, intentionally, and foreseeably to the insurrectionists’ violent assault on the Capitol.” Even if you accept the idea that inflammatory rhetoric belongs in the same category as taking up arms against the government, nothing that Cawthorn said can fairly be construed as an endorsement of violence aimed at preventing Biden from taking office.

Section 3 of the 14th Amendment says “no person shall be a Senator or Representative in Congress…or hold any office, civil or military, under the United States…who, having previously taken an oath…to support the Constitution of the United States…shall have engaged in insurrection or rebellion against the same.” It adds that Congress may “remove such disability” by a two-thirds vote of the House and Senate.

That provision originally targeted former supporters of the Confederacy, although Congress ultimately voted to let them serve in the House and Senate. Otherwise, the history of Section 3 does not illuminate its reach very much. In a 2020 paper that he described as “the first detailed account of Section Three,” Indiana University law professor Gerard Magliocca noted that the provision “disappear[ed] from constitutional law” after the postbellum controversy over how to treat former Confederate leaders.

In January 2021, because Section 3 was suddenly in the news following the Capitol riot, Magliocca considered the provision’s relevance to that event. In a Lawfare essay, he said he had been “unable to find any particularly helpful authority” on the question of what counts as an “insurrection.” In the 1860s and 1870s, he noted, “everyone understood that the insurrection in question was the Confederacy, and no thought was given to what other insurrections might look like.”

Magliocca thought the Capitol riot itself was plausibly viewed as an “insurrection,” since “the mob was seeking to halt or overturn a core constitutional function at the seat of government, which can reasonably be described as an attempt to replace law with force.” Furthermore, the criminal charges against some of the rioters indicated that they “intended to inflict bodily harm on members of Congress, which can be reasonably understood as a direct attack on the legislative branch itself and, more generally, the existing government.”

But Magliocca rejected the suggestion that legislators like Cawthorn could be expelled from Congress under Section 3 simply because they backed Trump’s election fraud claims. “Without more, merely opposing the certification of electoral votes should not result in expulsion under Section 3,” he wrote. “Simply voting to reject the certification of some electoral votes (or speaking to explain those votes) under the procedures set forth by the Electoral Count Act is not sufficient. The Speech and Debate Clause should be construed to immunize these actions from an extreme sanction like expulsion. Moreover, these members were participating in a long-established legal process and making their voices heard in protest, as others have in the past. They were not breaking the rules.” The lawsuit challenging Cawthorn’s candidacy nevertheless cites his participation in the electoral-vote challenges as evidence that he “engaged in insurrection.”

The lawsuit also notes that Cawthorn promoted the “stop the steal” rally that preceded the Capitol riot. “January 6th is fast approaching,” he tweeted two days before the rally. “The future of this Republic hinges on the actions of a solitary few. Get ready, the fate of a nation rests on our shoulders, yours and mine. Let’s show Washington that our backbones are made of steel and titanium. It’s time to fight.”

Cawthorn delivered similar remarks at the rally, as did Rep. Mo Brooks (R–Ala.). Magliocca suggested that Brooks “might have a Section 3 problem depending on how his words are parsed and whether inciting an insurrection is tantamount to engaging in one.” Does that mean Cawthorn has “a Section 3 problem”? Only if you think that lending credence to Trump’s claims and urging his supporters to “make your voices heard” amounts to engaging in an insurrection.

“Wow, this crowd has some fight in it,” Cawthorn told Trump’s supporters. “The courage I see in this crowd is not represented on that hill….The Democrats, all the fraud they have done in this election, the Republicans hiding and not fighting—they are trying to silence your voice. Make no mistake about it: They do not want you to be heard.”

Cawthorn contrasted his own courage with the pusillanimity of Republican colleagues who were ready to recognize Biden’s victory. “At 12 o’clock today,” he said, “we will be contesting the election. But my friends, bear in mind that there is a significant portion of our party that says we should just sit idly by and sit on our hands. They have no backbone!…We’re not doing this just for Donald Trump. We are doing this for the Constitution. Our Constitution was violated!…My friends, I encourage you, go back to your states after today, hold your representatives accountable, make sure that they stood up for election integrity and make your voices heard.”

Cawthorn’s speech, which was full of the clichés that politicians favor and the baseless insinuations that Trump’s supporters tend to echo, may have been insipid and irresponsible, but it was not an incitement to insurrection. That interpretation hinges on reading fight literally rather than metaphorically, construing “make your voices heard” as a call to violence, and assuming that when Cawthorn talked about “contesting the election,” which in context clearly referred to the electoral-vote challenges, he really meant that Trump’s supporters should break into the Capitol, assault police officers, and terrify members of Congress.

In an interview on The Carlos Watson Show after the riot, Cawthorn said his objections to electoral votes for Biden focused on Wisconsin, where “there were some constitutional infractions about the way they carried out their elections.” But he disavowed some of Trump’s wilder allegations, such as the idea that Dominion voting machines were rigged or the claim that trucks delivered shipments of fraudulently marked ballots. “I definitely didn’t try to feed into that narrative,” he insisted.

Cawthorn, of course, made no such distinction in his rally speech, which broadly decried “all the fraud” supposedly committed by Democrats. He clearly did “feed into that narrative” simply by appearing at a rally predicated on the notion that Trump actually won the election.

But another distinction Cawthorn drew in that interview—between peaceful protest and violent interference with congressional certification of the election results—is not so easily dismissed. “Obviously, I think what happened on January 6 was despicable,” he said. “I thought it was conducted by weak-minded men and women who are unable to check their worst impulses and had very little self-control. [I] completely condemn it.”

As evidence that, contrary to such disclaimers, Cawthorn believes political violence is justified, the candidacy challenge quotes remarks that he made at a small gathering of Republicans in Macon County, North Carolina, last August. “The Second Amendment was not written so that we can go hunting or shoot sporting clays,” he said. “The Second Amendment was written so that we can fight against tyranny.” But this is the sort of boilerplate you often hear from politicians who support gun rights, and in context it’s clear that Cawthorn was not talking about violently resisting Biden’s election.

During the same appearance, Cawthorn did suggest that “if our election systems continue to be rigged, and continue to be stolen, then it’s going to lead to one place, and it’s bloodshed.” But then he added: “As much as I am willing to defend our liberty at all cost, there is nothing that I would dread doing more than having to pick up arms against a fellow American. And the way we can have recourse against that is if we all passionately demand that we have election security in all 50 states.” Again, this hardly counts as incitement to insurrection, let alone engaging in insurrection.

The people who are trying to disqualify Cawthorn from the ballot may believe he fully intended to provoke a riot while maintaining plausible deniability. I think that interpretation credits Cawthorn with more foresight and intelligence than he has thus far displayed in his fledgling political career. In any event, this is the sort of judgment that should be left to voters, who can decide for themselves whether they want to be represented by a Trump sycophant who happily warps reality in the service of his own ambitions.

The post Did Madison Cawthorn Engage in 'Insurrection' by Reinforcing Donald Trump's Election Fantasy? appeared first on Reason.com.

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Some of music legend Neil Young’s very best songs are angry and filled with howling, so it kind of makes sense that the two-time Rock & Roll Hall of Fame inductee’s biggest burst of publicity in years comes courtesy of an ALL-CAPS ultimatum to the streaming service Spotify.

“I want you to let Spotify know immediately TODAY that I want all my music off their platform,” he wrote to his manager in a since-deleted public letter on his website. “They can have [Joe] Rogan or Young. Not both.” Young was popping his gaskets over Rogan’s controversial and sometimes misinformed takes on COVID-19, which have led a bunch of doctors to demand that Spotify, the exclusive host to the planet’s most popular podcast, “immediately establish a clear and public policy to moderate misinformation on its platform” (emphasis in original).

Spotify’s response both to the M.D.s and “Mr. Young” (as Lynyrd Skynyrd once mockingly called him) was basically See you later! “We have detailed content policies in place and we’ve removed over 20,000 podcast episodes related to covid-19 since the start of the pandemic,” a Spotify spokesperson told The Washington Post. “We regret Neil’s decision to remove his music from Spotify, but hope to welcome him back soon.”

That seems unlikely, at least in the near term. What Young’s convictions may lack in detailed understanding of a given topic, they more than make up for in moral certitude. (Check out his 2009 financial crisis song “Cough Up the Bucks” and let me know what you think.) But who knows? In the wake of the 9/11 attacks, Young was one of the first big rock stars to sonically enlist in the Global War on Terror, a position he ultimately reversed without much explanation.

His November 2001 song “Let’s Roll” didn’t charge the charts like hijackers piling into a cockpit, but it left absolutely no question about Young’s point of view. The title came from the last known words of a passenger on United Flight 93 as he and others attacked the hijackers, crashing the plane in rural Pennsylvania rather than letting it fly into the White House or the Capitol. “You’ve got to turn on evil,” sang Young, who had long cultivated a fringe-wearing, peace-and-love persona. “When it’s coming after you/You’ve gotta face it down/And when it tries to hide/You’ve gotta go in after it.” As he received a “Spirit of Liberty Award” from the liberal group People for the American Way in December 2001, he endorsed the PATRIOT Act and told the surprised crowd that “to protect our freedoms it seems we’re going to have to relinquish some of our freedoms for a short period of time.” Just a few years later, Young reversed course and became an outspoken if clichéd critic of the new security state, even calling for the removal of President George W. Bush in a (not very good) song called “Let’s Impeach the President.”

So who knows where the artist nicknamed Shakey will land in a few months or a few years? Regardless, there are more than a few lessons to be learned from this contretemps. Here are three-and-a-half at the front of my mind.

First: We live in an incredible world of cultural plenty, one simply unimaginable in 1966, when Neil Young joined a group called the Mynah Birds that featured future felonious funkmaster Rick James, a couple of guys who would help form Steppenwolf, and an eventual Buffalo Springfield bandmate. For all the controversy over how Spotify pays artists, the service itself is a universal jukebox that gives listeners access to more music than they know what to do with. (As of yesterday, before it complied with his request and took down his catalog, Spotify said Young pulled over 6 million monthly listeners.) At the start of this century, even in a piece extolling the vast proliferation of culture, I couldn’t imagine a free (well, ad-supported) streaming service that gathered virtually all the world’s songs in a single app that you can access on your phone. It also hosts an endless number of podcasts, too. And of course, Spotify is just one platform among countless others that allow creators and audience to meet.

Indeed, Neil Young’s complete catalog is easy to find, usually for free, elsewhere on the Internet. (If you want to, for 20 to 100 bucks a year at his website, you can get something approaching personal access to the man himself.) I spent a good chunk of today roaming around YouTube listening to and watching Neil Young clips, such as a strange, wonderful, batshit-crazy duet he did with Devo for the 1982 cult movie Human Highway.

That leads me to my second point: Generally speaking, it’s a mug’s game to demand that a given platform, service, record label, publishing house, or whatever conform to your singular moral demands. I hesitate to point out something that Neil Young, who has an official YouTube channel, probably already knows: Joe Rogan is also on that platform, with nearly 12 million subscribers. Should Neil Young, in the name of consistency, issue an ultimatum to YouTube and then bolt when the service refuses to yield to his demand? Where exactly does this sort of thing stop? Maybe all of us at our own paywalled sites, secure in our purity of association but with much less to talk about.

And that leads me to my final lesson-and-a-half: It’s a damn shame that Neil Young, age 76, is throwing one of the great OK, Boomer rage quits in recent memory. Talking with some of the younger people in my life (with “younger” generously defined as anyone born after the 1983 release of Everybody’s Rockin’, the album that led Geffen Records to sue Young for producing “not commercial” music), most of them had little to no idea who Neil Young was until this moment. If you are of a certain age, Neil Young was not simply one singer among many; he was a titan among gods. He reeled off a string of records from the late 1960s through the mid-1980s that helped define the upper limits of what rock music could accomplish as an art form. All at the same time, he could be folk, country, psychedelic, punk, and metal. Arguably, no male performer gave greater voice to the great cultural letdown after Woodstock while also embracing the still-underappreciated lifestyle liberation that made the ’70s a fantastic time to be alive. (Joni Mitchell would be the female equivalent.) Just as important, if anything about rock music can be said to be important, he served as a bridge into the future, adopted by bands such as Pearl Jam as the grandfather of grunge and what came next in the alternative ’90s.

Neil Young reminds that the cranky old man we see in front of us is not the whole person. We do well to remember our heroes in their prime as well as their dotage. And—this is the half-lesson I warned about—we also do well to remember that we listen to musicians for the best music they make, not the worst fits they throw.

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This week, House Democrats introduced the America COMPETES Act of 2022, a nearly 3,000-page bill that is supposed to strengthen supply chains and bolster American innovation. Many of its provisions have little to do with preserving American prosperity. But there’s one area where the bill really would make things better: immigration.

The COMPETES Act proposes two new nonimmigrant visa programs, one for “entrepreneurs with an ownership interest in a start-up entity” and one for “essential employees of a start-up entity.” (The visas also cover their spouses and children.) Under the legislation, the Department of Homeland Security would set up pathways for high-skilled, entrepreneurial foreigners to come to the U.S. for an initial three-year period. They would be eligible for extensions based on certain criteria, such as securing investments, creating jobs, and generating revenue. The bill would make it easier for foreigners with “an ownership interest in a start-up entity” to petition for permanent residence.

The bill would also exempt foreigners with doctoral degrees in science, technology, engineering, or mathematics from country-based numerical limits on immigrant visas. Under the Immigration Act of 1990, the Migration Policy Institute reports, “no country can receive more than 7 percent of the total number of employment-based and family-sponsored preference visas in a given year.” In countries where there is high demand for these visas, applicants often face extreme wait times. Back in 2018, the Cato Institute’s David J. Bier noted that Indians with advanced degrees applying for EB-2 visas were facing a 151-year wait. The COMPETES Act’s doctoral STEM graduates provision would help ease this strained and dysfunctional processing apparatus.

Democratic politicians are marketing the COMPETES Act as a way to outcompete and rebuke China. It therefore includes some provisions making it easier for groups persecuted by the Chinese government to come to the U.S. The bill would provide 18 months of “temporary protected status and refugee status for qualifying Hong Kong residents.” It would also allow 5,000 high-skilled Hongkongers to immigrate to America each year.

Another section, the Uyghur Human Rights Protection Act, would grant priority refugee admission status to current and former residents of China’s Xinjiang province. Uyghurs there are experiencing brutal persecution and up to 1.5 million may be in internment camps, according to the United Nations. The U.S. has admitted zero Uyghur refugees in the past two fiscal years, making this prioritization all the more overdue.

The immigration provisions aren’t perfect. The startup employee visa sets low caps on the number of foreigners who may be employed by a participating startup at a given time. Foreigners applying for the startup and doctoral STEM graduate visas would have to pay a $1,000 fee, which serves as a serious barrier to entry.

But the bill is right to recognize that immigrants are key to keeping this country prosperous. It’s also one of the biggest advantages the U.S. has over China. When we welcome foreigners to our soil—either because of the persecution they are fleeing or the skills they bring with them—we preserve our competitive edge and ensure that the best ideas and talent can prosper within our borders.

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For decades, conventional wisdom has held that the Supreme Court is, on net, a force for centralization in the American political system. A new article I coauthored with political scientist Michael Dichio challenges that conventional wisdom. Our initial draft is now available for free downloading on SSRN. Here is the abstract:

This article examines the U.S. Supreme Court’s impact on centralizing and decentralizing power in the American federal system. Through an original database of nearly 700 landmark constitutional decisions, we show that the Court has contributed to the centralization of political power, defined in the traditional sense of expanding federal government authority relative to that of states and localities. But it has also promoted decentralization by protecting individual rights against state and local governments. The impact of the Court also tends much more toward decentralization if we classify decisions upholding federal laws against challenge, as neutral, rather than centralizing. These two crucial methodological points have been largely neglected in previous analyses of the Court’s impact on federalism and centralization. There are, in many situations, good reasons to adopt them. We also present multiple models for understanding how the Court affects federalism.

Our analysis calls into question the traditional picture of the Court as a consistent force for centralization. It also raises serious questions about the conventional wisdom on the impact of the Court on centralization during specific periods in American history.

This article grew out of my review, in Publius: The Journal of Federalism, of Michael Dichio’s excellent 2018 book, The US Supreme Court and the Centralization of Federal Authority. In the review, I suggested these two methodological changes. Michael reached out to me to see if we could do an article about them, and now we have done so! The article includes a detailed defense of those moves, and also includes a number of other innovations.

We don’t completely reverse the traditional conventional wisdom about the Court and centralization. But we do explain why it requires substantial modification, amounting to reversal with respect to a number of key issues.

This an early draft, and we look forward to modifying it in response to comments, questions, and criticisms.

 

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