Only Through Change Can We Save Our Institutions Now
Widening Holes in the Fabric of Justice
So the rollercoaster ride continues, deep into the summer. Thankfully, while Congress is in session—and these next three weeks of negotiation are expected to be deeply consequential for the future of the clean energy transition—the Supreme Court is not. (Well, let’s hope they don’t abuse the “Shadow Docket” [pdf]). We shouldn’t have to hear from them again until the first Monday of October. But of course, after months of waiting with heightened anxiety for Dobbs v. Jackson, West Virginia v. EPA, and many other rulings to drop, the Supreme Court had to leave us with something new to worry over as they headed out the door for summer vacation: Moore v. Harper.
Already the think-pieces are proliferating. “The Case That Could Blow Up American Election Law.” “The Most Important SCOTUS Case No One’s Talking About.” “A new Supreme Court case threatens another body blow to our democracy.” “Could this SCOTUS case push America toward one-party rule?” And with good reason—Republicans don’t need a mob charging into the US Capitol Building if they can dismantle democratic elections and secure minority rule through formal, almost-legitimate channels. The more successful coup is the one rubber-stamped by the highest justices in the land—and they have it nearly within their grasp.
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By the time the dust has settled on the other side of an actually unfree election, it will be too late for Democrats and any other small-d democrats still in power to combat Republican takeover through formal channels. Biden, devout institutionalist that he is, has not been paying adequate attention as those institutions get corrupted and warped into a new shape. If he really wanted to preserve the integrity of the institutions of American governance, he would take extraordinary measures to save them now, before people live through an actually illegitimate election; before democracy seems a newly futile endeavor. Ironically, as with the 19th century Republicans who brought about the Reconstruction Amendments and were deemed “Radical” as a result, it will take a leader committed to change to save (much less improve upon) our political institutions. It is a mainstream question now: does Biden have that much fight in him?
According to that New York Times poll released Monday, most voters want new leadership in 2024. The most significant thing Biden can do for Americans in the next two years is ensure that come 2024, voters still have the right and opportunity to choose who leads them.
As we’ve said before, one of the greatest tests of the administration’s willingness to protect democracy falls to Attorney General Merrick Garland, who will determine whether and how those involved in Trump’s plot to invalidate the last election, culminating in the Jan. 6 insurrection, will be held accountable. Yesterday’s Jan. 6 Committee hearing, the seventh public hearing in the past month, continued to unspool a series of wild revelations about how Trump sought to undermine the 2020 election. With the House Committee tackling the insurrection from the top down on live TV, focusing on its most powerful instigators, the DOJ’s “bottom up” strategy is rightly being scrutinized. As the frenzy of speculation and pressure for prosecution mounts, we must be clear that at stake here is the very principle that no one is above the law.
Turning now to another wing of the Justice Department, the Revolving Door Project recently released a new white paper detailing how corporate interests undermine strong antimonopoly enforcement in the DOJ’s Antitrust Division and at the Federal Trade Commission. RDP Senior Researcher Andrea Beaty analyzed staff departures from the Antitrust Division’s civil merger enforcement section and the FTC’s Bureaus of Competition and Economics, finding that over 60 percent of them left the antitrust agencies for employment at BigLaw firms, merger-driven corporations, and economic consulting firms. The report offers five broad recommendations for slowing the revolving door to industry and revitalizing civil service:
Tightening restrictions on both sides of the revolving door (White House, Congress, Office of Government Ethics, Federal Trade Commission and Department of Justice)
Prosecuting those who violate ethics restrictions (Department of Justice)
Increasing the antitrust agencies’ budgets (Congress)
Deploying new resources to rapidly expand hiring and better support existing staff (Federal Trade Commission and DOJ Antitrust Division)
Promoting from within the antitrust agencies and cultivating in-house expertise (Federal Trade Commission and DOJ Antitrust Division)
Andrea also provides detailed analysis of the antitrust revolving door and specific ethics reforms that could help close it. You can access the full report here.
In other antimonopoly news, it’s been a year now since Biden announced his whole-of-government executive order promoting competition. The progress made since then by various agencies tasked with carrying out the order’s mandate is worth praising. Check out the American Economic Liberties Project’s thread evaluating the last year’s developments. Rohit Chopra also released a statement on Monday reflecting on the CFPB’s contributions to this whole-of-government effort.
We only wish that the administration would wield its executive power as zealously to tackle other grave and oftentimes related problems. Sarah Anderson, Director of the Global Economy Project, has an excellent op-ed in Business Insider this week on how the White House could use federal contracting requirements to combat structural income inequality. Her recommendations for the administration include giving priority for federal contracts to corporations that pay their CEOs no more than 100 times what they pay their typical worker, imposing a buyback restriction on federal contractors, and requiring federal contractors to sign neutrality agreements in organizing campaigns. These are common-sense measures which the Biden administration could take right now, and promise to be at once modest (CEOs making 100 times more than the average worker is still a yawning gap) and quite effective.
Alec Karakatsanis of the Civil Rights Corps pointed out last week a terrifying missing piece in the Biden administration’s response to the overturning of Roe v. Wade: “huge amounts of federal cash, surveillance, and weapons are flowing right now to police departments that are enforcing abortion bans.” This is something fully within the White House and Justice Department’s capacity to stop. “Federal bureaucrats could stop sending the very same surveillance technology and weapons and cash that will be used to brutalize people,” Karakstanis writes. “If you're a reporter, you should ask the White House, the Attorney General, and the head of the Office of Justice Programs about this.” We would love to see reporters cover this. We previewed the Biden administration’s ability to wield the Office of Justice Programs to document and curb police misconduct last year, but sadly, what progress they are or are not making has gone largely underexplored.
Another urgent frontier for responding to the loss of a federal right to abortion is digital privacy. The administration knows this: Biden signed an executive order last Friday which, among other things, aims to protect people seeking an abortion or information about abortion from “privacy violations.” Unfortunately, as Ryan Singel pointed out, it has “GIANT holes in it, named AT&T, Verizon, Comcast, etc,” because the FCC continues to lack a fifth commissioner, leaving the commission deadlocked in a 2-2 partisan split.
Gigi Sohn’s nomination for FCC commissioner has been stalled for well over half a year now. RDP researcher Dylan Gyauch-Lewis wrote for The Hill back in May about the consequences of this delay, as the FCC’s stalemate prevents much-needed actions to strengthen digital privacy, restore net neutrality, expand broadband access in underserved communities, and more. Now with people’s access to accurate information about abortion threatened, the FCC, which is the agency with the most authority to address this issue, is out of the game. As we’ve written about many times before, the broken confirmation process is but one example of how chronic government dysfunction has widespread ramifications.
Most recently, RDP researcher Toni Aguilar Rosenthal documented the mathematical impossibility of the total hours of Senate floor time needed to confirm Biden’s remaining nominees. Toni writes: “In the current political climate, it could require more days of Senate sessions to confirm Biden’s nominees than the Senate worked during its entire legislative session in 2014 and in 2020.” Meanwhile, there remain at least 366 presidentially appointed positions requiring Senate confirmation that either still need nominees, or have nominees yet to be confirmed. The already arduous confirmation process has now been fully broken by “nefarious Republican bad actors that are weaponizing Senate rules against supremely qualified nominees.”
This confirmation system is not working. We’ve been sounding the alarm on how McConnell and his allies have undermined the confirmation process since they were sabotaging required Democratic nominees to independent agencies under Trump in 2020, and preventing swift action in Biden’s first 100 days, and his first year in office. Now, a year and a half into Biden’s presidency, the urgent need for action to make sure the executive branch is equipped to keep functioning under potential Republican control of one or two houses of Congress is more essential than ever.
Want more? Check out some of the pieces that we have published or contributed research or thoughts to in the last week:
RELEASE: New Letter Urges Disclosure of Larry Summers' Corporate Funding
RDP Urges President Lawrence Bacow, Mr. John Micklethwait, and Ms. Sally Buzbee To Publish Larry Summers's Corporate Funding
The Extraordinary (Time) Costs of Senate Republican Nomination Blockades
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