Senate Democrats Require a Courage Super-Spreading Event
Newsletter 55: Ongoing glass half-full/half-empty news from Biden Transition
“Nothing is off the table” Senator Chuck Schumer said just after Justice Ruth Bader Ginsburg’s passing. Many looked on that claim with skepticism, but we doubt even the most cynical expected Democrats to signal their surrender so quickly. A handful of Senators indicated that they would not meet with Amy Coney Barrett but it would seem that most are not following their lead. Meanwhile, talk of boycotting the hearings (so as not to lend the proceedings any aura of normalcy) was quickly abandoned.
Congress
That all brings us to this week’s spectacle. Having made the decision to appear at these hearings, few Democratic members made much of the venue. In her opening statement, ranking member Dianne Feinstein largely failed to put the irregularity or the stakes of this nomination into perspective. The questioning has proven no more fruitful. Barrett’s refusal to give a straight answer on anything quickly turned the whole process into, as FiveThiryEight’s Perry Bacon put it, “a farce.” In the face of Barrett’s equivocation and implausible claims to ignorance, Democrats’ disciplined questioning about issues at the top of the American public’s mind -- her potential rulings on Roe v. Wade, election results, and the Affordable Care Act -- evinced nothing that could not already be gleaned from her record.
Instead of spending all of their energy attempting to get Barrett on the record about positions we all already know she holds, Senate Democrats could have worked to tie her to Trump’s ruthlessness and lawbreaking. Over the past several weeks, this would-be Supreme Court Justice has displayed breathlessly poor and, more importantly, self-serving judgment. She openly flouted DC’s mask and quarantining laws to attend the party thrown in her honor on the White House lawn and to advance this unprecedented confirmation process. She initially failed to disclose numerous substantive past professional affiliations and political activities, a pattern that can best be described as carelessness but may be more accurately characterized as a disregard for the confirmation process. (Note that Barrett was already confirmed to the U.S. Circuit Court of Appeals in 2017, making these substantive omissions all the more troubling.) While she attempts to frame herself as a neutral arbiter, Senate Democrats would do well to make her answer for actions that suggest she is anything but.
As we move into the next stage of this fight, Democrats need to heed the warning signs that their current conciliatory strategy is coming up short. Although polling still indicates that support for confirming Barrett before the election is under water, the gap seems to be narrowing. As the project’s Jeff Hauser and Eleanor Eagan wrote at the start of this fight, preemptive surrender by Democrats risks deflating public energy against the nomination; by all accounts, that seems to be playing out. In contrast, fighting hard now will leave Democrats in a stronger position to enact major reform even if they ultimately lose this match.
2020 (and potentially 2021)
As election day draws closer, speculative articles about a potential Biden administration’s composition are multiplying. While some guesses about potential Cabinet Secretaries seem fairly plausible, others strike us more as not-so-subtle attempts at self-aggrandizement. No matter what, it’s clear that this question is starting to garner considerably more interest.
Organized labor, for its part, is reportedly feeling pretty good about its prospects under a Biden administration. His platform on labor rights is strong but, arguably more importantly, his campaign and transition teams are ensuring that labor leaders themselves are heavily involved in the process of crafting an agenda and shaping the administration. Given the power that a Biden administration would have to expand and add teeth to key labor rights, even in the absence of congressional action, this is welcome news.
Unfortunately, not all of Biden’s advisors inspire such confidence. Former Acting Secretary of Labor Seth Harris is seen as a likely candidate for the top labor job if Biden wins. As our Max Moran detailed for The American Prospect yesterday, that would be an unmitigated disaster. After leaving the Department of Labor (DOL) in 2014, Harris spent time working on behalf of management at the BigLaw firm Dentons, acting as a front for a sports betting company, and hawking high interest loans to trade school students. He also, as it so happens, authored a memo that appears to be the model for California’s Proposition 22 which would create a new employment category for gig workers, one considerably weaker than the traditional employee classification. Uber, Lyft, and other gig platforms have poured record-breaking sums (just shy of $200 million as of October 12) into the campaign while labor unions and activists are furiously working to oppose it as they’re outspent nearly 20-1.
The question of employee classification is an important one that will almost certainly come before a Biden administration’s DOL. Harris’ record calls into question whether he’ll be an ally to labor on this issue. More broadly, however, we need regulators who will not be distracted by BigTech’s bright, shiny distractions that are more often than not merely masking exploitation and regulatory arbitrage. Harris hardly seems up to that task.
This standard doesn’t just apply to labor. Particularly in this moment of crisis, it’s important that executive branch leaders be creative and proactive in their pursuit of the public interest. As our Jeff Hauser told Politico, "There are a lot of Democrats who think they can't do much with their jobs. It's a lot better to have people who think their jobs have real power." That article highlights several candidates who seem to fit that bill and note their “intimate knowledge of the regulatory process” gleaned from a spot on the front-lines of the fight over Dodd-Frank.
The piece helps to undermine revolving door figures’ claims to singular expertise. It is more than possible to fill an administration’s senior ranks with exceptional candidates who have chosen not to sell their insider knowledge to the highest bidder (although that will require going beyond just the ranks of congressional staffers). Critically, this does not necessitate sacrificing a commitment to racial diversity, as some have claimed. As Brandi Collins-Dexter, David Moon, and Raúl Carrillo argue in Barron’s, “there are thousands of qualified candidates of color in federal agencies, state houses, city halls, nonprofits, universities, and small businesses all across the country.” And indeed, the stakes around appointees may be highest for communities of color who have traditionally borne the brunt of regulatory failure and corporate predation. In other words, “Communities of color deserve both progressive representation and progressive regulation.”
Independent Agencies
Thanks to mixed messages from the Biden camp, people on both sides of the financial regulatory divide are unsure about what the new president’s agenda will look like if he wins. The resulting, uneasy ceasefire is sure to crumble the second Biden starts announcing appointees. A Biden administration’s approach to financial regulatory policy will be a product of his picks for Treasury, of course, but also the Securities and Exchange Commission (SEC), the Federal Deposit Insurance Corporation (FDIC), the Commodity Futures Trading Commission (CFTC), the Federal Reserve, the National Credit Union Administration (NCUA), and others. You can count on the Revolving Door Project to be watching these positions closely.
These picks, however, will not be the only measure of Biden’s seriousness on financial regulation. If he is at all committed to “building back better” in this area, he will also need to move aggressively to sweep out all of the Trump appointees that he can. And by “all,” we mean ALL. Thanks to a recent Supreme Court decision, that includes the current director of the Consumer Financial Protection Bureau (CFPB) nd, as a result, surely the Federal Housing Finance Agency (FHFA) to boot. At several independent agencies, he’ll also have the power to redesignate the chair, shifting the powers of that office into Democratic hands. Wherever these options exist, from the IRS to the Postmaster General and the OCC to US Attorneys, Biden must use them.
Want more? Check out some of the pieces that we have published or contributed research or thoughts to in the last week:
Prop 22 Is a Dress Rehearsal for This Biden Cabinet Hopeful’s Confirmation Battle
Biden’s Treasury Could Fight Climate Change, But Would Lael Brainard’s?
Progressive Democrats united behind Biden — thanks to Trump
Progressives press Biden to recruit Warren allies, setting up conflict in party