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Trump Thumps His Chest
The silverback in the White House is seeing red because he believes the yellow-bellied curs at Twitter are in the bag for the blue team. And so, as promised, he did a little chest-thumping on Thursday, issuing an executive order in response to the social media platform's decision to add warnings to a couple of his tweets.
In an unsurprising turn of events, the order targets Section 230 of the Communications Decency Act, which is known as "The Twenty-Six Words That Created the Internet." Those words are:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
This was written back in the Clinton years, when the major players in online content were CompuServe, Prodigy, and AOL. It was long before anyone imagined something like Twitter. Or if they did imagine it, they immediately said to themselves "Why would anyone agree to be limited to just 140 (or later 280) characters?"
Because Section 230 is somewhat long in the tooth, partisans on both sides of the aisle would like to see it updated. However, they want those updates to go in very different directions. Democrats, on the whole, are concerned about the bad behavior that takes place on social media platforms (threats, hate speech, etc.) and would like to see Section 230 protections taken away from any platform that is too hands-off about moderation. Republicans, on the whole, think that platforms that engage in any moderation at all are guilty of censorship and discrimination, and should lose their Section 230 protections. Put more succinctly, Democrats abhor the wild, wild West approach, while Republicans demand it. This is the debate that Donald Trump jumped into with both feet on Thursday.
If the President is really serious about this order, well, he's going to run into at least four big problems:
- The executive order is actually a directive to the FCC, instructing them to reconsider their interpretation and
enforcement of Section 230. This is all that is within Trump's power, and it means that for this "initiative" to move
forward, he needs an assist from FCC chair Ajit Pai. Pai is already on the record as saying that he does not believe
current law allows for a different approach to Section 230.
- Since Section 230 is somewhat broad, and since it's a quarter-century old, its precise meaning has largely been
established through a sizable body of case law. That case law is strongly on the side of the media platforms and
strongly against Trump's position, even if Pai agrees to play along.
- On a related note, Trump is pretty clearly trying to create new laws, and to overturn existing court precedent,
through executive order. In other words, he's infringing on the prerogatives of the other two branches of government
in an overt manner. If and when this gets in front of a court, he's going to get smacked down hard.
- There is also the matter of the First Amendment. The government is allowed to regulate speech, but only if it serves the public interest. On the other hand, they are most certainly not allowed to regulate speech for political reasons. Again, if and when this gets before a court, lawyers for Twitter, Facebook, Instagram, etc. are going to point out that their policies were serving the public interest just fine right up until Trump got angry and decided to lash out. That makes the executive order look an awful lot like it's motivated by politics, and not any other concern.
At the moment, the muckety-mucks who run the major social media platforms are deciding whether they should preemptively file suit, or if they should ignore the whole thing as a publicity stunt. Even if they don't file, however, the ACLU and other First Amendment advocates are expected to file.
It is doubtful that Trump actually intends to change any policies, however, as he surely knows that to do so would be a long, uphill battle. The true motivations here appear to be twofold: (1) to vent some Presidential rage at a very stressful time, and (2) to rally the base with talk of conspiracies, and deep states, and how everyone treats right-wingers unfairly, and yada, yada, yada.
Because this is going to give Trump something to whine and moan about for months, there are those who think that Twitter just handed him a nice, big early birthday present (he turns 74 on June 14). On the other hand, as they say, be careful what you wish for, because you just might get it. There may be no person who has benefited more from Section 230 than one Donald J. Trump. For example, in yet another example of joking not joking, he just retweeted a video that begins with the intonation "The only good Democrat is a dead Democrat." If Twitter legitimately fears they are about to be put under a microscope, or they just want to flex their muscles a little and show who's boss, that is precisely the type of tweet that is going to be deleted, or quarantined, or slapped with a warning label.
Meanwhile, this is the latest example—and one of the clearest—of Trump using the powers of his office to punish his enemies and gratify his personal whims. Oh, and he's doing it right in the midst of a pandemic that has claimed over 100,000 American lives. Perhaps that will not sit too well with the 5% of voters who remain undecided. (Z)
Lies, Damned Lies, and Statistics
On one hand, Donald Trump's attempt to use an executive order to punish Twitter is deeply concerning, as it represents an abuse of power that would previously have been impeachable, and it also speaks to how few constraints he feels. On the other hand, people are not going to die as a result of the Trump vs. Twitter reality show. On the other hand, his efforts to downplay COVID-19, and to deflect responsibility for the pandemic, have almost certainly cost some Americans their lives, and will continue to do so. Especially since the subject has now become 100% politicized. Trump's medical advice has definitely killed at least one person who ate fish-tank cleaner as a result of listening to him.
Following the President's lead, at least 14 states are now taking aggressive steps to fudge or obscure COVID-19 data. This includes refusing to release data, playing games with exactly what constitutes a COVID-19 test (thus increasing the number of people the states claim to have tested), and also playing games with exactly what qualifies as a COVID-19 death (thus decreasing the number of fatalities these states claim to have). Although the behavior is not exclusive to Trump-loving states and governors, it is predominantly to be found in those places, most notably Arizona, Iowa, and Florida.
Obviously, folks like Govs. Kim Reynolds (R-IA), Doug Ducey (R-AZ), and Ron DeSantis (R-FL) think they are making a wise political decision here, either with an eye toward pleasing their base, or pleasing Trump, or both. However, producing misleading data (or no data) is going to have consequences. First, it's going to encourage people to act less cautiously than might otherwise be the case. Second, it's going to make it harder to track outbreaks and identify hotspots. Our guess is that as things unfold, and as the predicted "second wave" COVID-19 outbreak hits, it will not look so good if any or all of these four states are near the top of the list in terms of infections/deaths per capita, and that some voters in these places may express displeasure with that outcome. As a reminder, all four states are swing states or near-swing states in the presidential election, and three of them have crucial Senate races this year.
Maybe it is a tad cynical of them, but Trump and the governors realize that it doesn't matter how many Americans die of COVID-19. What matters is how many deaths are reported. If 2 million Americans die of the disease but the official number of deaths ends up at 150,000, Trump can say: "The original prediction was 100,000 to 240,000, and this is closer to the low end, so I did a great job." (Z)
This Certainly Isn't What the Founders Intended...
The Founders were fairly well persuaded that many of the judges of their era were in the bag for the King. Since the King was responsible for appointing judges back then, this viewpoint was not necessarily off the mark. Consequently, they strove to make judgeships as non-political as is possible, requiring approval from both of the other branches of government, and giving magistrates life tenure, so as to insulate them from the winds of politics.
Quite clearly, the Founders' ideal of non-political judges did not quite work out. And as time goes by, the number of judges who appear to be political operatives in black robes just grows and grows. On Thursday, Sen. Lindsey Graham (R-SC), who chairs the Senate Judiciary Committee, took things to a new low, using an interview with Hugh Hewitt to strongly encourage older conservative judges to retire immediately, so they can be replaced before Donald Trump's first term is up. "This is an historic opportunity," Graham opined. "We've put over 200 federal judges on the bench ... So if you're a circuit judge in your mid-60s, late 60s, you can take senior status, now would be a good time to do that, if you want to make sure the judiciary is right of center."
It is not new for politicians to nudge judges toward retirement. However, it's usually only the biggies (i.e., Supreme Court justices), and generally the politicians have the good taste to be a little bit subtle and (usually) to offer their "encouragement" behind closed doors. For the chair of the Senate Judiciary Committee to go on a national radio show and announce that he'd like to see conservative judges retire en masse so that the judiciary can remain as politicized as is possible? That's definitely a new low. At the same time, it feeds right into the Democrats' planned campaign strategy of running on "save the judiciary from a generation (or more) of ultra-conservative control." (Z)
...Nor Is This
The Federalist Society was founded in the early 1980s by conservative students at a number of elite law schools. Unhappy about the course the courts had taken in the 1960s and 1970s (especially the liberal Warren Court), they wanted to help identify judges who would engage in "judicial restraint." The Society took its name from Federalist 78, which was written by Alexander Hamilton, and is on the subject of judicial restraint.
We're not sure how carefully those law students actually read Federalist 78. It's true that it's on judicial restraint, but by that Hamilton meant that judges would have to make good rulings, because they are afforded no power (neither "the sword or the purse") to enforce unjust and undemocratic rulings. He did not mean that judges should avoid asserting themselves (and he even said that sometimes assertiveness would be called for). And he certainly did not mean that the courts should be jammed with partisan flacks. Still, that has become the Federalist Society's mission over time, and with Senate Majority Leader Mitch McConnell (R-KY) and Donald Trump in place, they've had unprecedented success since 2017 (as Lindsey Graham was bragging about, see above).
In fact, the Federalist Society has been flying so high, they've decided to branch out into other activities. Specifically, funded by dark money sources like the Koch network and the DeVos family, they are hard at work on vote suppression. Under the name Honest Elections Project, which might be the worst misnomer since "alternative facts," they have a two-pronged approach that involves: (1) lawsuits and (2) an extensive propaganda campaign focused on claims that vote-by-mail equals fraud and that Democrats cheat to win elections (apparently they did not read about what happened in NC-09 in 2018). Note also that "Honest Elections Project" is just the current name for the effort. In order to further obscure the money trail, not to mention the Federalist Society's involvement, they've changed names several times, and have also been known as the Judicial Education Project and the 85 Fund. By this time next week, who knows, they might be known as The Knights Who Say "Ni!".
As we point out in the item above, the authors of the Federalist Papers would be horrified to see what's become of the judiciary these days. And they might be even more unhappy to learn what the "Honest" Elections Project is up to. The importance of the franchise is a theme that runs throughout the Papers, perhaps most notably in Federalist 57, written by James Madison, which declares that the new system of government created by the Constitution rests on the election of "wise" men elected by the "free suffrages of their fellow-citizens."
For folks who claim to be "originalists" and "textualists," the members of the Federalist Society don't seem to care very much about what the Founders wanted, at least when the Founders' goals were at odds with those of the Federalist Society. The utter brazenness of the Society (and their loyal servants in the Senate, like McConnell and Graham) is either an indication of how badly the U.S. system of government has been degraded, or a sign of desperation that the Trump administration is nearing its end, or both. We leave it for the readers to decide for themselves which it is. (Z)
The Veepstakes, Part I: Key Democratic Pollster Pushes for Warren
Stan Greenberg, a well-respected, longtime Democratic pollster who rose to prominence running Bill Clinton's polling operation, has crunched the numbers and concluded that Sen. Elizabeth Warren (D-MA) is far and away the best choice of a running mate for Joe Biden. Greenberg's argument, which he has twice laid out for Biden 2020 pooh-bahs, is that the Democratic Party has not unified behind the candidate yet, and that he actually lags Hillary Clinton at the equivalent point in the process. Swing state polling data tells Greenberg that Warren is the only VP frontrunner who can fix the problem, and that if she gets the nod, Biden's a shoo-in for the White House.
Greenberg has not made his specific numbers available, but the core of his case is that Warren's talk of a "rigged" system resonates well with Latinos, young people, and Sen. Bernie Sanders (I-VT) voters, who are just the groups Biden is having the most trouble with. Further, Greenberg is known as a centrist, so he's not likely to cast his lot with the Senator unless he really believes it. There's also some non-Greenberg polling of the various VP candidates that suggests that Warren gives Biden a bigger boost than any of the leading alternatives. And so, we move a bit closer to a Democratic ticket that is 150 years old. (Z)
The Veepstakes, Part II: Klobuchar Is in Trouble
It is very possible that Elizabeth Warren is the frontrunner for the #2 slot on the Democratic ticket. Or, maybe it's Sen. Kamala Harris (D-CA) or Rep. Val Demings (D-FL). One aspirant who does not appear to be near the front of the pack is Sen. Amy Klobuchar (DFL-MN). And now, due to events beyond her control, she's likely out of the running.
The new, and likely fatal, liability is the recent events in Minnesota surrounding the death of George Floyd at the hands of four police officers. This has lit the fuse on much pent-up rage there. Literally, actually, as protesters took to the streets on Thursday, and torched the police precinct that served as home base for the four (now-fired) officers. Even once things calm down, Floyd's name will not soon be forgotten, much like the names of Trayvon Martin, Michael Brown, and Eric Garner.
Even before these incidents, prominent black leaders took an "anyone but Klobuchar" stance, based on her record as Hennepin County attorney. There were some apparently minor cases that she prosecuted with gusto, and there were some major cases that she declined to pursue. In particular, she was criticized for a perceived lax attitude about police misconduct. It turns out that includes more than one occasion where she did not press charges against Derek Chauvin, the officer who was directly responsible for Floyd's death. And it's not like Chauvin only got in hot water one time; in fact, over the course of his career there were 18 misconduct complaints lodged against him.
Needless to say, many of the details of Klobuchar's career are not publicly known, including all the facts of the cases that she's been criticized for, as well as her reasoning in deciding not to pursue charges against Chauvin (and other officers). Still, the things that are publicly known look very bad for the Senator, and surely make her too toxic for the Biden campaign to consider. If "win back centrist white voters in the Midwest" is the goal, then Gov. Gretchen Whitmer (D-MI) is younger, comes without the racial baggage, and is strong on the issue of the day (COVID-19). (Z)
The Veepstakes, Part III: Cortez Masto Is Out
Consistent with the above item, we suspect that Amy Klobuchar will withdraw her name from VP consideration very soon. If so, she'll be the second senator to do it, as Catherine Cortez Masto (D-NV) pulled out of the race on Thursday, adding that "Nevada's economy is one of the hardest hit by the current crisis and I will continue to focus on getting Nevadans the support they need to get back on their feet."
Generally, withdrawing from consideration is a face-saving maneuver that sounds a heck of a lot better than "I was rejected." So, odds are very high that Cortez Masto was advised recently that Biden 2020 had no intention of picking her. Truth be told, despite her impressive résumé, she didn't really make that much sense as a running mate. Nevada, as a purplish-blue state, is likely safe, especially since it's been hit so hard by COVID-19 (and the federal mismanagement thereof), and also because it's got a lot of union voters and Biden now has the formal support of the AFL-CIO.
If courting Latino/Southwestern voters is the goal, then Gov. Michelle Lujan Grisham (D-NM) is probably the better call, since she has substantial executive experience as well as 6 years in the House. Or, if Biden wanted to go off the board and make a strong play for Texas, he could tap Rep. Veronica Escobar (D-TX), who happens to represent Beto O'Rourke's former district. She is only in her first term in the House, but she's been in politics for a decade, and is regarded as an excellent campaigner.
That said, it's pretty clear at this point that courting Latino/Southwestern voters is not the goal, as Cortez Masto has given the full Sherman, and Lujan Grisham has given the soft Sherman, suggesting they both know a Latina is not in the cards this year. Unless everything the Biden campaign has been putting out is a misdirect, they are choosing among a party-unifying progressive (probably Elizabeth Warren), a Midwestern centrist (probably Gretchen Whitmer), and someone who will excite the black community (probably Kamala Harris or Val Demings). (Z)
RNC Working to Save Convention
Donald Trump badly wants this year's Republican National Convention to proceed as planned in Charlotte, NC. Politically, he wants four days of free national advertising for himself and his presidential campaign. Personally, he desperately needs the adrenaline rush of 20,000 people chanting his name and cheering his every word. The latter concern, as Michael Kruse points out in a very interesting piece for Politico, is almost certainly the paramount one. In fact, there's a strong case to be made that Trump's political aspirations first began to crystallize back in 1988, when he was a front-row witness to the reception that George H.W. Bush got at that year's Republican National Convention. "This is what I want," the Donald proclaimed.
Of course, COVID-19 is complicating things. And if that were not challenge enough, the President gummed up the works by pitching a fit on Twitter, and insisting that Gov. Roy Cooper (D-NC) commit to a plan of action immediately. Although lashing out like this, and threatening to move the convention elsewhere, makes the President feel good, it's not really practical. Too much time and money have been spent laying the groundwork for North Carolina. So, it's almost certainly Charlotte or bust.
Whatever is going to happen, Republican National Committee Chairwoman Ronna Romney McDaniel needs to figure it out quickly, because Trump set a deadline of next week and he needs to save face, and also because time is growing short. And so, she and her team are giving it the old college try, and on Thursday presented Cooper with the outline of a plan to hold the convention while safeguarding attendees and the general public.
We're hardly public health experts, but the plan actually seems pretty reasonable to us. It includes "Daily health care questionnaires delivered via an app," "Mandatory thermal scans of all attendees prior to boarding sanitized, pre-arranged transportation," and "attendees would have to pass a clean health check prior to entering the dedicated chute to the Spectrum Arena." The Governor, who is only the third most prominent Cooper in the headlines these days, has not yet responded to the proposal, which was delivered to him late Thursday. However, it seems likely this is going to get worked out, and the Republican Convention will move forward as planned. (Z)
Today's Presidential Polls
St. Pete Polls consistently has the presidential race closer than any other pollster. Whether they are right, or Fox News, FAU, Quinnipiac, and UNF are is something we won't know for sure until November.
Meanwhile, Hoosier daddy? Apparently, Donald Trump. (Z)
| State | Biden | Trump | Start | End | Pollster |
| Florida | 48% | 47% | May 26 | May 27 | St. Pete Polls |
| Indiana | 39% | 49% | May 21 | May 23 | Victoria Research |
Today's Senate Polls
Hard to put much stock in a pollster called "Victory Geek," and their website does little to change that impression. If Collins really is down nearly double-digits, though, then wow. In general, we have an "innocent until proven guilty" attitude toward pollsters. If a new pollster who has not been vetted by FiveThirtyEight shows up and is clearly not a campaign consultant, we generally include them. Victory Geek is clearly pushing the envelope here, though. (Z & V)
| State | Democrat | D % | Republican | R % | Start | End | Pollster |
| Maine | Sara Gideon | 51% | Susan Collins* | 42% | May 13 | May 18 | Victory Geek |
* Denotes incumbent
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