Democracy is messy--in a good way!

November 30, 2022

          There were several significant legal and legislative developments on Tuesday that demonstrate democracy in action. As always, no one gets everything they want, but enough people are satisfied that we increase respect for democracy and the rule of law in the process. Tuesday’s partial victories and begrudging compromises are good news but remind us of the unfinished work that lies ahead. With that prologue, let’s take a look at the verdict in the Oath Keeper’s sedition trial, the Senate’s approval of the Respect for Marriage Act, the proposed bill to avoid a rail worker strike, and developments in the Supreme Court. I will also reflect on the radicalization of Elon Musk as Twitter lurches to the extreme right.

          But let’s skip to the end and say the most important thing first: On Tuesday, America looked like a functioning democracy where conflicts are resolved and competing aims balanced within the framework of a living Constitution. We should not take that remarkable fact for granted. It is otherwise in much of the world and has been otherwise in recent history in the US. So, Tuesday was a good day; we witnessed the commonplace occurrence of democracy in action, and it was glorious. And messy. It always is!

Mixed verdicts in the Oath Keepers sedition trial.

          The jury in the Oath Keepers sedition trial returned its verdicts on Tuesday. First, the headline: Oath Keeper leaders Stewart Rhodes and Kelly Meggs were convicted of seditious conspiracy and obstruction of an official proceeding. Three other defendants were convicted of obstruction of an official proceeding but acquitted on the charge of seditious conspiracy. See WaPo,  Oath Keepers trial: Stewart Rhodes guilty of Jan. 6 seditious conspiracy.

          The mixed verdicts represent a huge victory for the Department of Justice and the American people. Successful prosecutions for seditious conspiracy are the exception rather than the rule. But if this jury refused to convict the leaders of the Oath Keepers for seditious conspiracy on the strong evidence presented by the DOJ, it would have been a blow to the Constitution itself. Although not all of the defendants were convicted of seditious conspiracy, every defendant was convicted of a serious felony carrying a 10-year prison sentence. The conviction of every defendant on a serious charge serves as a powerful deterrent to future insurrectionists. The DOJ should be proud of its accomplishments at trial.

          The mixed verdicts also represent a victory for the American system of trial by a jury of peers. The jury examined the prosecution’s evidence critically and acquitted three defendants of some charges—imparting legitimacy to the guilty verdicts for seditious conspiracy against Rhodes and Meggs. Indeed, the partial victory for the DOJ may have sent a stronger and more credible signal to the right-wing extremists than would have been sent by a complete victory for the prosecution. Justice was served by a fair and impartial jury. We cannot ask for more.

The Senate advances the Respect for Marriage Act.

          On Tuesday, the Senate voted to pass the Respect for Marriage Act. The Act is a response to Justice Thomas’s threat in the Dobbs decision to revisit every personal liberty based on privacy recognized by the Court in the last seventy-five years. As drafted, the Act is limited in its protections, most notably requiring that states give “full faith and credit” to same-sex marriages performed in other states. The federal government would also recognize same sex-marriages. Those protections are a small step in the right direction.

          But the cost of overcoming the filibuster was steep, as explained by Jonathan Capehart in his WaPo op-ed, Gee, thanks for this tiny step to protect my same-sex marriage. As Capehart notes,

• If the Supreme Court overrules Obergefell as Justice Thomas has suggested, thirty-five states would refuse to issue same-sex marriage licenses; and

• The Respect for Marriage Act protects the “rights” of persons to refuse to provide services to LGBTQ people (a right that already exists under the Religious Freedoms Restoration Act).

          In other words, forcing LGBTQ people to travel to other states to exercise a fundamental right treats LGBTQ people as second-class citizens the same way the Dobbs decision treats women as second-class citizens. But unlike the effect of Dobbs on Roe, the Court’s ruling in Obergefell has not been overruled and requires all fifty states to issue same-sex marriage licenses. The Respect for Marriage Act is an insurance policy against disaster if the Court overrules Obergefell—albeit it an imperfect and inadequate insurance policy. As Capeheart recognizes in his op-ed,

[A]s an institutionalist who recognizes the power of incrementalism in the slow but steady march to equality, [I see] the legislation’s repeal of the remaining section of the 1996 Defense of Marriage Act — which defined marriage as one man, one woman — as an advancement.

          If Obergefell is overruled, the protections of the Respect for Marriage act will be important, inadequate, and hurtful in equal measure. The Act should be a daily reminder of the unfinished work ahead necessary to protect the rights of LGBTQ people under the Constitution.

Congressional leaders vow to pass legislation imposing labor agreement on rail workers.

          The Biden administration brokered an agreement between the rail industry and rail workers in September. A few affected unions voted to approve the deal, others did not. The rejection by a single union—and the agreement of other unions not to cross a picket line—effectively ensures a national rail strike in December, absent federal intervention.

          The key points of contention relate to the inability of rail workers to attend to medical and family sickness issues in light of the inflexible and onerous scheduling imposed by the railway industry. Rail workers are demanding paid time off for medical appointments and illnesses; management claims that workers should use vacation days to cover such emergencies. The details of the dispute are covered in depth here: What We Know About the Railroad Labor Talks to Prevent a Strike - The New York Times.

          A bipartisan effort has emerged in Congress to impose the tentative agreement reached last September as the final collective bargaining agreement between the parties. See NYTimes, Leaders in Congress Say They Will Act to Prevent Rail Strike - The New York Times. Per the Times, Nancy Pelosi has signaled her willingness to add seven paid days off for medical appointments and illness, but that provision would not survive in the Senate.

          Biden is faced with a difficult choice that presents unacceptable alternatives no matter which way he turns. The rail workers—like every American worker—deserve paid time off for medical appointments and illnesses. But a national rail strike would inflict significant damage on the economy. Per The Guardian, a rail workers strike could “cost” the economy about $2 billion per day and would result in 700,000 job losses in the manufacturing and retail industry. Such losses would remove any doubt about whether the US is in a recession; it would be.

          Given the reality of the filibuster, there are no easy answers for Biden to pursue. There is bipartisan support for imposing the September tentative agreement as the final agreement, avoiding a strike while denying rail workers a right that every American worker should have—the right to protect their health by seeking routine medical care and time off when ill. Given difficult choices, Biden is taking a path that will protect tens of millions of Americans from the economic hardship of a recession and avoid the loss of 700,000 jobs.

The Supreme Court.

          The Supreme Court’s response to the recent allegations of leaks by Justice Alito and influence campaigns by the religious right was dismissive, bordering on contemptuous. After Senator Sheldon Whitehouse demanded responses from the Court regarding steps it has taken to investigate the allegations, the Court’s legal counsel responded with a letter that said, in effect, “We asked Justice Alito, and he denied the allegations.” See Ruth Marcus’s op-ed in WaPo, The court’s supremely obtuse response to its ethical problems. As Marcus notes,

Imagine a chief executive who receives information that one of his senior officers might have leaked inside information. The officer denies it, but there are some indicia of advance knowledge. The chief executive would be negligent in not probing further.

          Marcus further notes that the Court’s attorney failed to grasp the seriousness of the allegations when he argued that the Court’s rules on accepting “gifts” disposed of any concerns that the religious right compromised conservative justices with a “charm offensive” of social dinners, trips to private vacation homes, and donations to the Supreme Court Historical Society. The refusal of the Court’s attorney to acknowledge the larger dimensions of the influence campaign demonstrates that the Court cannot be trusted to manage its own ethics. As Marcus writes,

[Chief Justice] Roberts should keep in mind: If the patient isn’t willing to take steps to heal itself, others will step in to administer the necessary medicine.

Twitter and Musk.

          I know, I know! You are tired of hearing about this topic. But it is important to the health of our democracy. Last week, Elon Musk terminated Twitter’s “Covid-19 misleading information policy.” Previously, that policy would have blocked or flagged tweets that claimed, for instance, that Covid-19 is caused by cell phones and can be cured by swinging a chicken over your head three times. No more. Twitter now welcomes those who purvey misinformation about Covid, many of whom do so as part of financial scams.

          The above is only the latest reckless act by Musk. He has declared a general amnesty, reinstating all manner of antisemites, white supremacists, crackpots, insurrectionists, and charlatans. Musk’s own tweets have become increasingly erratic. Over the weekend, Musk tweeted a picture of his nightstand—which prominently featured a handgun. He regularly retweets vile right-wing attacks on “liberals” and has begun attacking advertisers who are fleeing Twitter because of its unfiltered content. He accuses those advertisers of “censorship” and has reportedly called the CEOs of some former advertisers to berate them for their decision.

          Musk’s behavior is not normal. The rapid decline in Twitter’s ability to self-regulate seems to mirror a similar decline in Musk’s ability to exercise self-restraint—a sign of a brewing personal crisis that begs for intervention by family members and friends. Charlie Sykes details all of the above in his Morning Shots newsletter, Does Elon Musk Understand . . . .

In short, Musk seems intent on converting Twitter into a right-wing propaganda tool where anyone can promote hate-speech, misinformation, and insurrection. That should concern us all. What can we do about it? More on that tomorrow . . . .

Concluding Thoughts.

          Another day, another early-voting turnout record in Georgia. On Tuesday, 309,000  Georgian’s cast early-vote ballots, breaking the previous record (set yesterday) of 300,000 votes. Moreover, early voter turnout in rural counties with significant populations of Black voters is out-performing comparable voting in those counties in the 2022 general election. That is all good news.

          But . . . the early voting period in the run-off is significantly shorter than the same period for the general election in Georgia. Accordingly, the total early vote in the run-off will be lower than it was in the general election despite the record-breaking single-day turnout. In other words, do not let up! Winning a 51st seat in the Senate will make a significant difference in the ability of Democrats to control the calendar, committees, and judicial nominations. Despite all of Walker’s missteps, lies, and campaign law violations, the race remains close. We have every reason to be hopeful, but no reason to be complacent. Keep up the good work!

          Talk to you tomorrow!