Desperate Times Call For... Surely Not Some Tawdry Sense Of "Normalcy"

Have you watched Biden addressing the nation from behind his desk? He tries to act like he knows what he's talking about and he mostly pulls it off but every so often he stumbles and barely survives the moment of panic. No one is talking about it. Is that what they mean by the honeymoon. But, like I said the other day, whoever is calling the shots there-- presumably Klain in conjunction with... dunno... Obama?-- is doing a good job, a job that's infinitely better than Biden's record. If the administration doesn't buckle on using reconciliation to pass the COVID-relief bill and stops trying to win-over a Republican or two-- or none-- I will be truly impressed. Andrew Cockburn, the Washington editor of Harper’s Magazine, isn't as sanguine. in his latest essay, Hard Times-- Will America Recover Under Biden?

"[E]conomic misery abounds across much of the country," he observed. "The hope may be that coronavirus vaccines will wipe away last year’s hardships, but in the meantime the financial transfusion of the CARES Act has dried up, even as renewed shutdowns and restrictions this winter have led to stagnant job growth and countless blighted lives. Millions of renters face potential eviction and demands for previously deferred rent; people with student loans fear the burden of renewed payments; and cities brace for sinking property-tax revenue-- at least three hundred thousand New Yorkers moved out of the city for good last year. No matter how quickly vaccines are distributed, millions of lives will have been permanently scarred by the disappearance of jobs, businesses, and education. At the very least, a post-pandemic economy will likely revert to what the economist Michael Hudson calls a 'slow crash,' as people have less and less money to spend after servicing their debts and paying taxes, inexorably squeezing the consumer spending that makes up 70 percent of economic activity."

Election night brought the news that many of these hopes and dreams would need to be tossed overboard. A Biden Administration with a shrunken lead in the House of Representatives and without a majority in the Senate meant that sweeping reforms would be out of the question. Even a wafer-thin Democratic Senate majority would rely on the uncertain loyalties of so-called moderates, most notably Joe Manchin of West Virginia, who has often voted in favor of Donald Trump’s agenda. (So far is the senator removed from any progressive inclinations that he even floated the possibility, early in 2020, of endorsing Trump.) Beyond that, Biden heads a Democratic Party riven with conflict. The dominant establishment wing that spent four years fending off progressive threats to its remunerative control now complains that calls to defund the police and provide universal health care alienated voters. Progressives, who powered much of the grassroots effort to turn out voters for Biden, especially in swing states such as Arizona, Michigan, and Georgia, point out that no Democratic candidate actually called to defund the police and that, furthermore, the numbers show that policies derided as “socialist” are broadly popular-- Medicare for All polls at 70 percent approval. Democrats defending seats in swing districts who stood up for such policies won across the board.

Amid such turbulence, history suggests that Biden will look to his old partners on the Republican side of the aisle for solace and support. As I have previously noted in this magazine, Biden has long reveled in his reputation as an arch-dealmaker. He has suggested that bipartisan camaraderie could return to the Senate in Trump’s absence. His record of cross-party cooperation is undeniable. But with rare exceptions, such as the rejection of Robert Bork’s nomination to the Supreme Court, the resulting accords tended to bank sharply to the right, most notoriously those made with Strom Thurmond, his segregationist ally in a series of repressive, racist crime bills, whom he considered “one of [his] closest friends.” Biden’s entire career suggests that, rather than pushing for anything resembling a New Deal 2.0., he will be happy to govern in a quasi-coalition with Mitch McConnell, even though the latter has never shown the slightest interest in compromising on matters important to him, or to the Republican donor base. The result will likely be a conservative government too timid to take “bold action,” fearful of offending the U.S. Chamber of Commerce and content to satisfy the ever-voracious demands of the defense complex.

Much has been made of the abiding friendship between the president-elect and the Senate majority leader, as demonstrated by McConnell’s attendance, alone among Republican senators, at Beau Biden’s funeral. (He even missed watching the Triple Crown Belmont Stakes to be there, a considerable sacrifice for the race-mad Kentucky senator.) “I don’t think there is anybody better to sit down opposite Mitch McConnell and work out something that helps the country than Joe Biden,” Biden’s longtime aide Ted Kaufman told the Wall Street Journal. McConnell himself expresses a certain indulgent affection for Biden, in contrast to his evident contempt for Barack Obama. “The reason we could get a deal done-- and that I could work with Joe-- was that we could talk to each other,” McConnell wrote in his 2016 memoir. “I could tell him how far we could go, and he would reciprocate, unlike Obama.”

The circumstances of the particular deal in which Biden earned this approving review are instructive. In 2010, the massive Bush tax cuts—famously beneficial for affluent Americans—were set to expire unless reauthorized by the Democratic-controlled Congress. Biden happily acquiesced to a deal with McConnell: the Republicans were granted two more years of the tax cuts (which Democrats had bitterly opposed when Bush originally pushed them through), along with several other items on their wish list, including a cut to the payroll tax that supports Social Security. In return, the Democrats got an extension for unemployment insurance and the American Opportunity Tax Credit for higher-education expenses. The deal passed over objections from many Democrats, including an eight-hour speech on the Senate floor by Bernie Sanders. Two years later, with the extension due to run out at midnight on December 31, 2012, Senator Harry Reid of Nevada, the pugnacious majority leader, was determined to run out the clock and let the cuts die a natural death, thus generating as much as $3.4 trillion in revenue over ten years for a host of social programs and much-needed infrastructure projects. Reid knew he had the upper hand: simply doing nothing would ensure victory, so he steadfastly ignored McConnell’s pleas to negotiate. On the evening of Sunday, December 30, with his back against the wall, McConnell knew where to turn. As recounted in his memoir, he called Biden with a message: “Is there anyone over there who knows how to make a deal? I need you to get up to speed on this, Joe.” Shortly thereafter, he announced on the Senate floor that he had enlisted the aid of the vice president.

Sure enough, Biden was wildly enthusiastic about his own involvement, calling McConnell throughout the night and following day. By Monday evening, the minority leader had what he wanted: 82 percent of the tax cuts made permanent, with the remaining 18 percent slated to bring in $600 billion (as opposed to the forgone $3.4 trillion) over ten years. As reported by Ryan Grim in We’ve Got People, his illuminating history of the rise of progressive power, many Democratic senators, including Sanders, Sherrod Brown, and Sheldon Whitehouse, were disgusted by the sellout, and retired to Sanders’s office to grumble. While they conferred, each in turn received a rambling phone call from the vice president in which he touted the success of his dealmaking while, in his customary style, leaving them no time to dissent. Seven years later, in a Democratic primary debate, Biden had the effrontery to boast that he “got Mitch McConnell to raise taxes by $600 billion.” This was too much for one fellow candidate, Senator Michael Bennet of Colorado, who knew exactly what had happened: “The deal that he talked about with Mitch McConnell was a complete victory for the Tea Party,” he said. “That was a great deal for Mitch McConnell. It was a terrible deal for Americans.”

...While most signals point to the likelihood that Biden will follow the same path of compromise and surrender pursued by Obama, the president-elect may feel obligated to fulfill at least some of his campaign’s bold promises, faced as he is with an economy in dire straits and a defiantly uncompromising Republican Party. For this, his only means will be executive orders, presidential decrees that require no endorsement from Congress. Trump has endeavored to use executive orders on hundreds of occasions, including when he directed the (partial) construction of his border wall. Biden could use them to more wholesome ends-- not only to reverse hundreds of Trump’s malign fiats, but also to forgive student debt or raise the minimum wage for federal workers to $15 an hour. Groups such as 350.org have encouraged Biden to adopt this approach to end oil and gas exports and shut down construction of the Keystone XL pipeline, among other climate initiatives.

Sadly, such aspirations may be doomed, thanks to the long and unremitting campaign by corporate interests to pack the judiciary, an effort crowned at long last with Trump’s bequest of a radical-right supermajority on the Supreme Court. “There’s no doubt that this court is going to be highly suspicious of any aggressive agency actions,” Nicholas Bagley, a law professor at the University of Michigan, told me. Ever since Roosevelt launched the New Deal, a conservative counterrevolution has targeted government agencies such as the EPA and the Securities and Exchange Commission that operate independently of Congress but whose rules nevertheless have the force of law. The administrative state survived and prospered through the Sixties, endorsed by Democratic and Republican administrations alike, but things began to change in the Seventies, as corporations mounted an aggressive pushback. This effort gathered force in the Reagan and Bush eras, barely faltered under Clinton, and achieved warp speed with Trump’s capture of the Supreme Court. With the third branch of government dominated by corporate-friendly interests, Biden is faced with a towering obstacle should he seek to operate outside McConnell’s suffocating embrace.

In a speech at a Federalist Society event in November, Justice Samuel Alito pungently expressed the likely Supreme Court reaction to any unwelcome executive orders from Biden. “Every year,” he declared, “administrative agencies acting under broad delegations of authority churn out huge volumes of regulations that dwarf the statutes enacted by the people’s elected representatives.” As an example, he cited the raft of measures intended to stop the spread of COVID-19, such as restrictions on social gatherings imposed by executive decree, which, he warned, “highlighted the movement toward rule by experts.”

While many might sympathize with such objections, Alito’s target, and that of his fellow Republican appointees on the court, was clearly broader. “This court has an extra dollop of antipathy to the administrative state,” Jody Freeman, director of the Environmental and Energy Law Program at Harvard Law School, told me. Its principal strategy, she said, is to force agencies to stick to the letter of vaguely worded legislation passed by Congress, thus cramping the ability of agencies such as the EPA to confront problems not specified in the original statute. She mentioned the Federal Communications Commission, which is tasked with regulating the internet under the 1996 Telecommunications Act, in which the internet is barely mentioned. Freeman has no doubt about the consequences. “None of the branches of government are handling modern society,” she told me. “Congress isn’t, and so has delegated the job to the agencies. The agencies are being kept in place by the court, meaning the president has no free hand. So nothing gets done for infrastructure, nothing for needed regulation.”

Public concern regarding the radical realignment of the federal courts tends to focus on social issues such as abortion or marriage equality. But corporate power’s tightening grip on the judiciary has lethal implications for any progressive economic agenda, now or in the future. Senator Sheldon Whitehouse of Rhode Island, who opposed the 2012 tax deal, is among the few prominent officials in Washington who has raised this issue. He has assiduously tracked the intricate system by which corporate-friendly judges are vetted, selected, and promoted with dark money, while lawsuits integral to the overall agenda are steered toward the Supreme Court with the aid of coordinated supportive briefs. Expense in this endeavor has clearly been no object; the campaign to confirm Brett Kavanaugh, for example, was fueled by $22 million in anonymous donations, $17 million of which came from a single donor.

I asked Whitehouse what legal bombshells might be on their way to the Supreme Court that could hamper the incoming administration’s plans for New Deal–type initiatives. He pointed to a “super abstruse” California tax case, Americans for Prosperity Foundation v. Becerra, which could make dark money hard to track by limiting state government access to nonprofit donor information. The case has made its way out of the Ninth Circuit and is waiting to get on the Supreme Court docket. “The dark money vultures are gathering there,” he wrote me. It “will give them a dangerous opportunity. . . . Big groups in the dark money conspiracy like the Chamber [of Commerce] and Marathon Petroleum are asserting a First Amendment right to dark money,” which, he added, they need “like the cavalry needs horses.” The likely outcome is that corporate political finance, unconstrained by public scrutiny, will be free to repel irksome interference from executive agencies such as the Consumer Financial Protection Bureau, whose supposedly independent director was fired by Trump after the Supreme Court granted him the power to do so. “I’d say ‘change’ is the loser,” concluded Freeman, the Harvard Law professor. “The winner is corporate America.”

...[I]f the economy is to pull out of a slow crash, and the Democratic Party is to avoid defeat in 2022 and 2024, Biden must do much, much more. A “return to normalcy” after the pillaging of the Trump years will be difficult, especially because Trump is leaving office rather as Saddam Hussein left Baghdad, with government departments in flames along with anything else that might enable a viable government. Public support for dramatic measures will surely be there if Biden asks for it, but his lifetime of temporizing, coupled with powerful forces of opposition, stand in the way-- recall that the president-elect and the establishment he represents still adamantly oppose universal health care, despite polling that indicates broad bipartisan support. They crave normalcy as it existed in 2016. But that was when the country elected Donald Trump.

Sigh. I'm still hoping against hope that this budget reconciliation bill... that Team Biden stands up to McConnell and proves that some is in charge who really is trying to emulate FDR. I guess we'll know soon enough... at least who's calling the shots, Team Biden or McConnell.