oligarchy
The Corporate Media Continue to Ignore That Trump Is an Explicit Threat to Democracy
Somebody should tell the New York Times and others that it is, in fact, their job to treat one candidate with pronounced alarm when the threat posed is as clear and severe as this.
Donald Trump and many of his supporters have explicitly promised to overturn American democracy, using Viktor Orbán’s “illiberal democracy” Hungarian model — where the press is controlled, political opposition sidelined or imprisoned, and oligarchs run the government — as their model.
But you rarely hear that from our media.
Back on May 5th, Semafor’s Ben Smith interviewed New York Times Editor Joe Kahn, who echoed a perspective that seems widespread across America’s mainstream media newsrooms: that their job is to report what they consider “news,” but not to defend democracy itself.
His exact quote was:
“One of the absolute necessities of democracy is having a free and fair and open election where people can compete for votes, and the role of the news media in that environment is not to skew your coverage towards one candidate or the other, but just to provide very good, hard-hitting, well-rounded coverage of both candidates, and informing voters. If you believe in democracy, I don’t see how we get past the essential role of quality media in informing people about their choice in a presidential election.
“To say that the threats of democracy are so great that the media is going to abandon its central role as a source of impartial information to help people vote — that’s essentially saying that the news media should become a propaganda arm for a single candidate, because we prefer that candidate’s agenda.”
Kahn has been extensively criticized for his and the Times’ unwillingness to use their ability to choose and frame news stories that highlight Trump’s naked threat to democracy and Biden’s robust defense of it, presenting them instead as merely two “normal” candidates’ agendas.
Defending democracy is part of their job, and an essential one, at that.
Which raises a vital question, beyond all the political and partisan sturmund drang: Does the American press have a historic and even constitutional obligation to defend democracy and explicitly call out threats to it?
There is only one industry that is specifically protected — or even mentioned — by the Framers in the Constitution. It’s not the defense industry, the transportation business, or even banking, all necessary and foundational to the development of a safe nation and thriving business economy: Exclusively, it’s the press.
The Founders and Framers did this because they explicitly believed that a free and independent press was a necessary prerequisite to a functioning democratic republic. That it was as essential as a functioning legislative, executive, or judicial branch of government. That, in fact, none of those three could truly be held to account when they crept or bolted toward upending democracy without a press explicitly defending our form of government itself.
On June 15, 1780, almost a decade before the Constitution was ratified and modern America came into existence, the legislature of Massachusetts laid it out in Article XVI of their constitution:
“The liberty of the press is essential to the security of freedom in a state: it ought not, therefore, to be restrained in this Commonwealth.”
They weren’t the first nor the last; North Carolina, on December 18, 1776, just five months after the signing of the Declaration of Independence, added Article XV to their Constitution:
“That the freedom of the press is one of the great bulwarks of liberty, and therefore ought never to be restrained.”
Multiple other states similarly mentioned freedom of the press in their state constitutions and laws, although those two made clearest their belief that the press was an “essential” “bulwark of liberty” if their states were to function as democracies.
Following his attendance at the Constitutional Convention (where freedom of the press was discussed, but only added later with the Bill of Rights on December 15, 1791), Ben Franklin noted:
“[S]o much has been written and published on the federal Constitution, and the necessity of checks in all other parts of good government has been so clearly and learnedly explained, I find myself so far enlightened as to suspect some check may be proper in this [press] part also; but I have been at a loss to imagine any that may not be construed an infringement of the sacred liberty of the press.” [emphasis his]
In other words, without a functioning press explicitly defending our form of government, the system of checks-and-balances between the three branches of government cribbed from Montesquieu couldn’t truly function.
The “father of the Constitution” James Madison made clear his belief that the press had an obligation to defend democracy, writing in his resolution from Virginia:
“[The] free communication among the people thereon [the press], has ever been justly deemed the only effectual guardian of every other right.”
Even George Washington chimed in:
“If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter.”
In 1786, Declaration of Independence and Bill of Rights author Thomas Jefferson made it explicit:
“Our liberty depends on the freedom of the press, and that cannot be limited without being lost.”
In the third year of his presidency (1804), Jefferson — in the face of vicious attacks in the Federalist newspapers — doubled down:
“No experiment can be more interesting than that we are now trying, & which we trust will end in establishing the fact that man may be governed by reason and truth. Our first object should therefore be to leave open to him all the avenues to truth. The most effectual hitherto found is the freedom of the press. It is therefore the first shut up by those who fear the investigation of their actions.”
In that, he was referring to the battle royal he’d won, defending freedom of the press, just four years earlier.
It’s one of the most fascinating — and, given Trump’s promises to shut down and imprison “fake news” reporters and publications that criticize him — prescient stories that most Americans (including, apparently, New York Times Editor Joe Kahn) know nothing about.
Both Federalist John Adams and Democratic-Republican Thomas Jefferson, for example, hated the news coverage they were getting back in the day and Adams’ overreaction is a cautionary tale for those in the media who don’t think a vital part of their job is to report aggressively on threats to democracy.
It started in 1798 when Benjamin Franklin Bache, grandson of Benjamin Franklin and editor of the Philadelphia newspaper the Aurora, began to speak out against the policies of then-President John Adams.
Bache supported then-Vice President Thomas Jefferson’s Democratic-Republican Party (today called the Democratic Party) when President John Adams led the conservative Federalists (who today would be philosophically similar to Republicans).
Bache attacked Adams in an editorial, calling the president “old, querulous, Bald, blind, crippled, Toothless Adams.”
To be sure, Bache wasn’t the only one attacking Adams in 1798. His Aurora was one of about 20 independent newspapers aligned with Jefferson’s Democratic-Republicans, and many were openly questioning Adams’ policies and ridiculing Adams’ fondness for formality and grandeur.
On the Federalist side, conservative newspaper editors were equally outspoken. Noah Webster wrote that Jefferson’s Democratic-Republicans were “the refuse, the sweepings of the most depraved part of mankind from the most corrupt nations on earth.” Another Federalist characterized the Democratic-Republicans as “democrats, momocrats and all other kinds of rats.”
But while Jefferson and his Democratic-Republicans had learned to develop a thick skin, University of Missouri-Rolla history professor Larry Gragg points out in an October 1998 article in American History magazine that Bache’s writings sent Adams and his wife into a self-righteous frenzy.
Abigail wrote to her husband and others that Benjamin Franklin Bache was expressing the “malice” of a man possessed by Satan. The Democratic-Republican newspaper editors were engaging, she said, in “abuse, deception, and falsehood,” and Bache was a “lying wretch.”
Abigail insisted that her husband and Congress must act to punish Franklin’s grandson for his “most insolent and abusive” words about her husband and his administration. His “wicked and base, violent and calumniating abuse” must be stopped, she demanded.
Abigail Adams wrote that Bache’s “abuse” being “leveled against the Government” of the United States (her husband) could even plunge the nation into a “civil war.”
Worked into a frenzy by the Adams’ and the rightwing Federalist newspapers of the day, Federalist senators and congressmen — who that year controlled both legislative houses along with the presidency — came to the defense of Adams by passing a series of four laws that came to be known together as the Alien and Sedition Acts.
The vote was so narrow — 44 to 41 in the House of Representatives — that in order to ensure passage the lawmakers wrote a sunset provision into their most odious parts: those laws, unless renewed, would expire the last day of John Adams’ first term of office, March 3, 1801.
Ignoring the First Amendment’s protections of the press so he could pursue his vengeance, President Adams ordered his “unpatriotic” opponents who were writing for or publishing Democratic-Republican newspapers arrested, and specified that only the 100% Federalist judges on the Supreme Court would be both judges and jurors in their federal criminal trials.
Bache, often referred to as “Lightning Rod Junior” after his famous grandfather, was the first to be hauled into jail (the day before the laws even became effective!), followed by New York TimePiece editor John Daly Burk, which put his paper out of business. Bache died of yellow fever while awaiting trial, and Burk accepted deportation to avoid imprisonment and then fled.
Others didn’t avoid prison so easily. Editors of seventeen of the twenty or so Democratic-Republican-affiliated newspapers were arrested and ten were convicted and imprisoned; many of their newspapers went out of business.
Bache’s successor, William Duane (who both took over the newspaper and also married Bache’s widow), continued the attacks on Adams, publishing in the June 24, 1799 issue of the Aurora a private letter John Adams had written to Tench Coxe in which then-Vice President Adams admitted that there were still men influenced by Great Britain in the U.S. government.
The letter cast Adams in an embarrassing light, as it implied that Adams himself may still have British loyalties (something suspected by many, ever since his pre-revolutionary defense of British soldiers involved in the Boston Massacre), and made the quick-tempered Adams furious.
Imprisoning his opponents in the press was only the beginning for Adams, though. Knowing Jefferson would mount a challenge to his presidency in 1800, he and the Federalists hatched a plot to pass secret legislation that would have disputed presidential elections decided “in secret” and “behind closed doors.”
Duane got evidence of the plot, and published it just after having published the letter that so infuriated Adams.
It was altogether too much for the president who didn’t want to let go of his power: Adams had Duane arrested and hauled before the Court on Sedition Act charges.
Duane would have stayed in jail had not Vice President Jefferson intervened, letting Duane leave jail to “consult his attorney” (Jefferson himself). Duane went into hiding until the end of the Adams’ presidency.
Emboldened, the conservative Federalists reached out beyond just newspaper editors.
When Congress let out in July of 1798, John and Abigail Adams made the trip home to Braintree, Massachusetts in their customary fashion — in fancy carriages as part of a parade, with each city they passed through firing cannons and ringing church bells.
(The Federalists were, after all, as Jefferson said, the party of “the rich and the well born.” Although Adams wasn’t one of the wealthy, like Clarence Thomas and Sam Alito he basked in their approval and adopted royal-like trappings, later discarded by Jefferson when elected president in 1800 as Dan Sisson and I detail in our book The American Revolution of 1800.)
As the Adams family entourage, full of pomp and ceremony, passed through Newark, New Jersey, a man named Luther Baldwin was sitting in a tavern and probably quite unaware that he was about to make a fateful comment that would help change history.
As Adams rode by, soldiers manning the Newark cannons loudly shouted the Adams-mandated chant, “Behold the chief who now commands!” and fired their salutes. Hearing the cannon fire as Adams drove by outside the bar, in a moment of drunken candor Luther Baldwin said:
“There goes the President and they are firing at his arse.” Baldwin further compounded his sin by adding that, “I do not care if they fire thro’ his arse!”
The tavern’s owner, a Federalist named John Burnet, overheard the remark and turned Baldwin in to Adams’ police: the hapless drunk was arrested, convicted, and imprisoned for uttering “seditious words tending to defame the President and Government of the United States.”
The Alien and Sedition Acts reflected the new attitude Adams and his wife had brought to Washington D.C. in 1797, a take-no-prisoners type of politics in which no opposition was tolerated.
And because John Adams had essentially shut down all the opposition newspapers, he felt increasingly emboldened when it came to harassing and imprisoning his political opponents.
After the Baldwin incident, Adams turned his wrath on opposition politicians, causing Vice President Jefferson, halfway through the Adams presidency just after the passage of the Acts in 1798, to refuse to visit the White House or speak in person to President Adams for the rest of their lives (they reconciled when elderly, but entirely by mailed correspondence).
For example, on January 30, 1798, Vermont’s Democratic-Republican Congressman Matthew Lyon spoke out on the floor of the House against “the malign influence of [Federalist] Connecticut politicians.”
Charging that Adams’ and the Federalists only served the interests of the rich and had “acted in opposition to the interests and opinions of nine-tenths of their constituents,” Lyon infuriated the conservatives.
The situation simmered for two weeks, and on the morning of February 15, 1798, Federalist anger — fueled by a near monopoly of federalist leaning newspapers editorializing against him — reached a boiling point when conservative Connecticut Congressman Roger Griswold attacked Lyon on the House floor with a hickory cane.
As Congressman George Thatcher wrote in a letter now held at the Massachusetts Historical Society:
“Mr. Griswald [sic] [was] laying on blows with all his might upon Mr. Lyon. Griswald continued his blows on the head, shoulder, & arms of Lyon, [who was] protecting his head & face as well as he could. Griswald tripped Lyon & threw him on the floor & gave him one or two [more] blows in the face.”
In sharp contrast to his predecessor George Washington, America’s second president (Adams) had succeeded in creating an atmosphere of fear and division in the new republic, and it brought out the worst in his conservative supporters.
Across the new nation, Federalist mobs and Federalist-controlled police and militia attacked Democratic-Republican newspapers and shouted down or threatened individuals who dared speak out in public against Adams.
Even members of Congress were not immune from the long arm of Adams’ Alien and Sedition Acts.
When Congressman Lyon — already hated by the Federalists for his opposition to the law, and recently caned in Congress by Federalist Griswold — wrote a newspaper article pointing out Adams’ “continual grasp for power” and suggesting that Adams had an “unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice,” Federalists convened a federal grand jury and indicted Lyon for bringing “the President and government of the United States into contempt.”
Lyon, who had served in the Continental Army during the Revolutionary War, was led through his home town of Vergennes, Vermont in shackles. He ran for re-election from his 12x16-foot Vergennes jail cell and handily won his seat in the election of 1800.
“It is quite a new kind of jargon,” Lyon wrote from jail to his constituents, “to call a Representative of the People an Opposer of the Government because he does not, as a legislator, advocate and acquiesce in every proposition that comes from the Executive.”
The moral of the story is that newspapers are, as Kahn noted, the Fourth Estate, functionally a fourth branch of government necessary to hold politicians and judges to account when they violate the fundamental principles of our republic. Defending democracy is part of their job, and an essential one, at that.
As Jefferson wrote to his friend Edward Carrington after having been particularly savaged by newspapers of his day:
“They may be led astray for a moment, but will soon correct themselves. The people are the only censors of their governors: and even their errors will tend to keep these to the true principles of their institution. To punish these errors too severely would be to suppress the only safeguard of the public liberty.
“The way to prevent these irregular interpositions of the people is to give them full information of their affairs thro' the channel of the public papers, and to contrive that those papers should penetrate the whole mass of the people.
“The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.”
Trump, his MAGA movement, and Project 2025 represent an explicit threat to American democracy.
From the founding of our republic, the power of the press to call out anti-democratic behavior has been a firewall, protecting our form of government. It is their job.
Hopefully, somebody will tell The New York Times and other major media.
Trump's Far-Right Army Is Threatening Bloodshed. Believe Them.
We must not only resist, but prevail. If we do not, it will be nearly impossible to reverse the course that America’s right-wing billionaires have set us on.
Kevin Roberts, who heads the Heritage Foundation (largely responsible for Project 2025) just implicitly threatened Americans that if we don’t allow him and his hard-right movement to complete their transformation of America from a democratic republic into an authoritarian state, there will be blood in the streets.
“We’re in the process of taking this country back,” he told a TV audience, adding:
“The reason that they are apoplectic right now, the reason that so many anchors on MSNBC, for example, are losing their minds daily is because our side is winning. And so I come full circle on this response and just want to encourage you with some substance that we are in the process of the second American Revolution, which will remain bloodless if the left allows it to be.”
He’s not wrong. America has been changed as a result of a series of corrupt rulings by Republicans (exclusively; not one of these rulings has been joined by a Democratic appointee) which have changed America’s legal and political systems themselves.
As Roberts notes, this is really the largest issue we all face, and our mainstream media are totally failing to either recognize or clearly articulate how radically different our country is now, how far the Republicans on the Court have dragged us away from both our Founder’s vision and the norms and standards of a functioning, modern democratic republic.
These actions — corporate personhood, money as speech, ending the Chevron deference to regulatory agencies, and giving the president life-and-death powers that historically have only been held by kings, shahs, mullahs, dictators, and popes — have fundamentally altered the nature of our nation.
First, in a series of decisions — the first written by that notorious corporatist Lewis Powell (of “Powell Memo” fame) — Republicans on the Court have functionally legalized bribery of politicians and judges by both the morbidly rich and massive corporations.
This started with Powell’s 1978 Bellotti opinion, which opened the door (already cracked a bit) to the idea that corporations are not only “persons” under the Constitution, but, more radically, are entitled to the human rights the Framers wrote into the Bill of Rights (the first ten amendments).
Using that rationale, Powell asserted that corporations, like rich people (from the Buckley decision that preceded Belotti by two years), are entitled to the First Amendment right of free speech. But he took it a radical step farther, ruling that because corporations don’t have mouths they can use to speak with, their use of money to spend supporting politicians or carpet-bombing advertising for a candidate or issue is free speech that can’t be tightly regulated.
Citizens United, another all-Republican decision with Clarence Thomas the deciding vote (after taking millions in bribes), expanded that doctrine for both corporations and rich people, creating new “dark money” systems that wealthy donors and companies can use to hide their involvement in their efforts to get the political/legal/legislative outcomes they seek.
Last week the Republicans on the Court took even that a huge step farther, declaring that when companies or wealthy people give money to politicians in exchange for contracts, legislation, or other favors, as long as the cash is paid out after the deed is done it’s not a bribe but a simple “gratuity.”
So, first off, they’ve overthrown over 240 years of American law and legalized bribery.
Last week they also gutted the ability of federal regulatory agencies to protect average people, voters, employees, and even the environment from corporations that seek to exploit, pollute, or even engage in wage theft. This shifted power across the economic spectrum from a government elected by we the people to the CEOs and boards of directors of some of America’s most predatory and poisonous companies.
Finally, in the Trump immunity case, the Court ruled that presidents are immune from prosecution under criminal law, regardless of the crimes they commit, so long as they assert those crimes are done as part of their “official” responsibilities. And who decides what’s “official”? The six Republicans on the Supreme Court.
These actions — corporate personhood, money as speech, ending the Chevron deference to regulatory agencies, and giving the president life-and-death powers that historically have only been held by kings, shahs, mullahs, dictators, and popes — have fundamentally altered the nature of our nation.
It’s almost impossible to overstate the significance of this, or its consequences. We no longer live in America 1.0; this is a new America, one more closely resembling the old Confederacy, where wealthy families and giant companies make the rules, enforce the rules, and punish those who irritate or try to obstruct them.
In America 2.0, there is no right to vote; governors and secretaries of state can take away your vote without even telling you (although they still must go to court to take away your gun).
They can destroy any politician they choose by simply pouring enough cash into the campaign system (including dark, untraceable cash).
The president can now go much farther than Bush’s torturing and imprisoning innocent people in Gitmo without legal process: he can now shoot a person on Fifth Avenue in plain sight of the world and simply call it a necessary part of his job. Or impoverish or imprison you or me with the thinnest of legal “official” rationales.
We no longer live in America 1.0; this is a new America, one more closely resembling the old Confederacy, where wealthy families and giant companies make the rules, enforce the rules, and punish those who irritate or try to obstruct them.
America 2.0 is not a democracy; it’s an oligarchy, as I wrote about in The Hidden History of American Oligarchy. The South has finally — nearly — won the Civil War.
While it will be months or more likely years before all of these new powers the Republicans on the Court have given the president, rich people, and corporations begin to dawn on most Americans, they will, step-by-step transform this country into something more closely resembling Hungary or Russia than the democracies of Europe and Southeast Asia.
The only remedy at this late stage in this 50+ yearlong campaign to remake America is a massive revolt this fall at the ballot box, turning Congress — by huge majorities — over to Democrats while holding the White House.
If we fail at this, while there will be scattered pockets of resistance for years, it’ll be nearly impossible to reverse the course that America’s rightwing billionaires have set us on.
There has never been a more critical time in the history of our nation outside of the last time rich oligarchs tried to overthrow our democracy, the Civil War. Like then, the stakes are nothing less than the survival of a nation of, by, and for we the people.
A Vicious Right-Wing Supreme Court Helps the Neoliberal Empire Strike Back
"With fear for our democracy," said Justice Sonia Sotomayor, "I dissent."
Following twin court rulings Monday, the Washington Post should update its “Democracy Dies in Darkness” banner. The MAGA Supreme Court has coldly and emphatically demonstrated this term that both democracy—and many of the public protections American families and workers count on—die in public, but only if we let it.
The cascade of disastrous and even deadly rulings will rightfully put a long-term stain on what is likely the most far-right Supreme Court since the monstrous days of Jim Crow. Especially if Trump is allowed to return to office and run a bulldozer over every vestige of what has constituted political and legal norms in the nation for at least the past half century.
But, there’s another point that much of the torrent of coverage has somewhat overlooked. Opponents of Trump and Trumpism have held out hope that the Republican Party old guard would somehow wake up and cast aside the wannabe dictator they have unleashed on the country.
Our challenge is to support legislation to reverse these decisions, and to defeat Trump and everything Trumpism and neoliberalism stands for in November.
Especially in its cascade of decisions “kneecapping the administrative state,” as Slate writer Mark Joseph Stern puts it, the Court has unambiguously embraced a principle goal of solidifying in legal precedent pro-corporate neoliberal policies that drove much of traditional Republican philosophy, especially since the first days of the Reagan administration. The centerpiece was the Court’s ruling in Loper Bright Enterprises v. Raimondo reversing the so-called 1994 Chevron deference case under which regulatory agencies were given authority to interpret, implement, and enforce ambiguous laws passed by Congress. The Court’s ruling effectively signals that the neoliberalism empire has struck back.
It marks a massive triumph for deregulation that Sherrilyn Ifill, law professor and former president and director-counsel of the NAACP Legal Defense Fund, aptly termed “a seismic shift in how U.S. government operates,” with “devastating and potentially catastrophic” consequences.
The traditional Wall Street wing of the Republican Party (which also mostly governs the Democratic Party establishment) had already, despite some ballyhooed misgivings over Trump’s multitude of criminal and autocratic behavior, welcomed Trump’s one major accomplishment of his first term — the massive tax gift for big business and the uber rich.
No doubt already salivating over Trump’s pledge to extend and expand his 2017 law, which slashed the corporate tax rate from 35 to 21 percent and handed the 296 most profitable corporations a $240 billion dollar tax present, the corporate tycoons and their most devout legislators now have another reason to hug Trump tightly. That would be the vision of agencies—purged of perceived enemies—overseeing environmental, food safety, workplace standards, worker and union rights, and so many other critical protections eliminated by a new Trump administration stacked with Trump cult loyalists.
They can also probably be ready to overlook the new power the Court on Monday granted Trump to emulate the worst criminality of Mussolini, Franco, or King George (what was that 1776 ruckus about anyway?). As Chief Justice Roberts wrote, Trump gets “a presumptive immunity from prosecution for all his official acts.” As if Trump or his enablers will ever really distinguish official from non-official acts. The Strict Scrutiny podcast offers probably the best analysis.
In her dissent, for once dropping the polite “respectfully” from her dissent wording, Justice Sonia Sotomayor made the consequences abundantly clear.
When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organize a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune. Immune… Never in the history of our Republic has a president had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop. With fear for our democracy, I dissent.
Will the neoliberal establishment be at peace with a dictator like Pinochet? We now know the answer to that question. Citing political historian Karl Polanyi, American Prospect co-founder Robert Kuttner in 2019 warned, “in regimes that border on neofascist, klepto-capitalists get along just fine with dictators, undermining the neoliberal premise of capitalism and democracy as complements.”
Neoliberalism has a few godfathers, beginning with Austrian academic Friedrich Hayek who in the late 1930s and 1940s was railing against President Roosevelt’s New Deal and Britian’s post-World War II embrace of such reforms as creation of the National Health service, as “manifestations of a collectivism,” wrote George Monbiot.
Another was infamous economist Milton Friedman, who in a celebratory tour of apartheid South Africa in 1976, wrote Zachary Carter, delivered a diatribe against “political democracy—an explicit rejection of, in Friedman’s words, ‘one person, one vote,’ delivered to a nation in which more than half of the population was disenfranchised by race.”
Will the neoliberal establishment be at peace with a dictator like Pinochet? We now know the answer to that question.
Hayek and Friedman both enthusiastically embraced Pinochet’s brutal coup and subsequent repressive policies in Chile. In “Democracy in Chains,” historian Nancy MacLean notes Hayek visited Pinochet, voicing distaste with “unlimited democracy,” and Friedman endorsed his policies of “shock treatment.” Economist James Buchanan, also a prominent advocate of neoliberal policies, helped guide Pinochet’s rewrite of his country’s constitution to put democracy “in chains,” which to this day continues to hamstring efforts at political reform in Chile.
In advocating market fundamentalism, Hayek and Friedman, says Kuttner, “promoted rules created by and for private owners of capital, to keep democratic government from asserting rules of fair competition or countervailing social interests.”
Thus, the tenets of neoliberal policy—lifting all constraints from capital, of which deregulation is a central focus, privatization, austerity through starving, if not outright elimination, of social programs, and decapitating worker resistance with a frontal attack on unions and worker’s rights. Neoliberalism in the U.S. was a counter revolution to progressive government social and political reforms of the 1950s and 1960s that raised standards of living, especially for white American workers and families.
One starting date was the infamous 1971 Powell Memo, authored by future Supreme Court justice Lewis Powell who called for political combat: “Business must learn the lesson . . . that political power is necessary; that such power must be assiduously cultivated; and that when necessary, it must be used aggressively and with determination.”
While President Jimmy Carter carried out some deregulation, especially on airlines, it was President Ronald Reagan who supercharged neoliberalism. His first act, notably, was to break the air-traffic controllers’ union, firing the federal employees who had gone on strike and presiding over decertification of their union. Chevron, explains Ian Millhiser, was originally established by the Supreme Court in 1984 to limit decisions by lower federal courts dominated by Democratic appointees who were “prone to striking down the Reagan administration’s deregulatory actions.”
It matters when those administrative agencies are staffed by scientists who write rules to limit toxic smog, and other experts who work to ensure that health plans cover basic medical services, ensure the safety of drugs and protect consumers from risky corporate financial behavior,” as they were especially under President Biden, and not by opponents of regulatory public protections, such as Reagan and Trump.
Other Democratic presidents have been co-signers of deregulation and other elements of neoliberalism, notably President Clinton with his deregulation of key banking regulation that led directly to the 2008 financial meltdown. But Biden has attacked much of the underpinnings of neoliberalism in his most important domestic policies.
In his first address to Congress, Biden, unlike Clinton, vigorously defended the role of government, saying “public investment and infrastructure has literally transformed America,” bringing us railroads, highways, schools, colleges, vaccines, the internet, and “so much more.” As Eric Levitz wrote last year, “this defense of state intervention in markets crescendoed with the declaration that, in our democracy, the government is 'you and I' and not some powerful force that we have no control over. It’s us.”
Even in the face of obstruction from nearly unanimous Republican opposition, and limits by conservative Democrats, Biden successfully shepherded passage of major legislation extending aid for families devastated by the pandemic, and enacted critical health care reforms, especially for seniors, and a major infrastructure program. His agencies also initiated challenges to corporate malfeasance such as anti-trust challenges and price gouging that were a major cause of inflation. And, of course, Biden was the most pro-labor president, especially his policies through the National Labor Relations Board and Occupational Safety and Health Administration, since at least President Roosevelt.
That was the intended target of the Court’s anti-regulatory cases, attacking the Environmental Protection Agency, the Security and Exchanges Commission, and all other administrative agencies in the Looper Bright case, transferring authority to the courts, especially the MAGA court.
Under that decision, Millhiser explains “questions like whether a product derived from red rice yeast, which purportedly helps promote healthy cholesterol levels, counts as a “drug” or a “dietary supplement” under federal law? Under Chevron, this question would be decided by FDA officials who’ve spent decades studying drugs and dietary supplements. Now it will be resolved by political appointees with law degrees and black robes.”
It is no coincidence that the Koch network were the main financial backers of the case that formed the basis of Looper Bright. The billionaire Koch brothers, who built their massive wealth through the fossil fuel industry have a direct line from decades of also funding an entire academic and legal industry of neoliberalism and deregulatory challenges in particular.
Law professor Kate Shaw adds, “an error in one of this week’s opinions provided a stark illustration of the costs of the court’s lack of expertise: On Thursday, in the case dealing with the Environmental Protection Agency—Ohio v. E.P.A.—the released version of the majority opinion made five references to “nitrous oxide,” commonly referred to as laughing gas, rather than the “nitrogen oxide” compounds at issue. The error was quickly fixed, but no agency official working on the regulation of this compound would have made such an error—and in many ways that is Chevron’s whole point.” She also noted the tortured and factual misleading explanations the court majority concocted to justify its pro-gun violence ruling defending murderous bump stocks.
The Court even found a way Monday to make it worse with a follow-up ruling. In a decision that handed corporations even more time to challenge regulations, “ruling that a six-year statute of limitations for filing lawsuits begins to run when a regulation first affects a company rather than when it is first issued.” But in reality, the Strict Scrutiny law professors said, the decision “massively expands the amount of time that essentially anybody has to challenge an agency rule if they don’t like it. Even if the rule has been on the books for years or decades.”
In her dissent, Justice Ketanji Brown Jackson noted, “the court’s baseless conclusion means there is effectively no longer any limitations period for lawsuits that challenge agency regulations… Allowing every new commercial entity to bring fresh facial challenges to long existing regulations is profoundly destabilizing for both government and businesses. It also allows well-heeled litigants to game the system by creating new entities or finding new plaintiffs whenever they blow past the statutory deadline.”
Amidst the wreckage of this decision, we also have to point to the weak defense of public safety regulation by decades of too many Democratic elected officials, and the broader public.
With the arrival of summer, many families plan family visits to county fairs, amusement parks, or traveling carnivals. They’ll hop on roller coasters and other thrill seeker rides probably not dwelling on what keeps them safe on those sometimes aging, rickety contraptions. I spent two summers in my youth working for a traveling carnival, marveling at all those people lining up for journeys on clearly dubious, creaking machines.
Whether federal, state or local regulatory agencies, most Americans assume someone is looking out for their safety. We rely on public oversight and enforceable standards and rules established by experienced and expert civil servants at regulatory agencies.
We rarely stop to think about the importance of what these agencies do, but we ignore their key role at our peril. As Georgetown University Law Center professor Lisa Heinzerling, who previously served in the EPA, told Slate “people care when their drinking water is contaminated with lead. They care if their medicines aren’t safe and effective, or if somebody takes all the money out of their investment accounts.” Or when you board a plane and hope the doors don’t fly off today, or go to a hospital for emergency medical care when you can’t breathe because the local refinery released toxic emissions into the air.
It’s time to care. It’s long past time to mount that defense of the positive role government and regulatory work in the public interest can and must do. Our challenge is to support legislation to reverse these decisions, and to defeat Trump and everything Trumpism and neoliberalism stands for in November.