SCOTUS power-grab and the stakes of state democracy

Billionaires are taking over everything.

Welcome to a Sunday evening edition of Progress Report.

First off, thank you to everyone who commented and responded to the Friday email about Joe Biden’s debate performance and the larger problems plaguing the Democratic Party. It generated the most discussion in this newsletter’s six-year history, and I appreciated every comment, including those that vehemently disagreed with me. And I really meant that, because you can’t be a reporter or offer perspectives on public opinion without hearing different perspectives.

I’m actually flattered that some folks think I’m influential enough that what I write here could have an impact on the outcome of the presidential election. Hey, maybe the newsletter convinced the editorial board of the New York Times and the editor of The New Yorker to call for Biden to withdraw from the campaign. Ultimately, it’s likely to be donors that make that decision for him. I relish none of this; being critical of the president right now just feels like a necessity if a November victory is still the goal.

Tonight we’ll shift our focus from the White House to state houses across the country, with some updates on ballot initiatives, and then turn our gaze to the Supreme Court, which perhaps making this whole elected democracy thing moot anyway.

Note: To make this work as accessible as possible, I’ve lowered the price for a paid subscription back down to Substack’s $5 minimum. If you can’t afford that right now, please email me and I’ll put you on the list for free. Every paid subscription makes it easier for me to comp one while becoming sustainable.

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Outstanding campaigns to qualify initiatives for the November ballot are largely entering the stretch run, with state and local governments evaluating proposal language and authenticating petition signatures.

I’ve added more proposals to the master list of initiatives, which will continue to grow over the next few months. I’m also going to purchase a custom URL for the list and add a news update section so that people can easily find and keep up with initiatives across the country.

Here are some of the latest and most interesting headlines:

1️⃣ Billionaire City, CA: I spent much of last week in Solano County, on the outskirts of the Bay Area, covering developments in California Forever ballot initiative saga. Shorn of context, it’s a public referendum on a change to zoning law, but it’s really an inquiry into just how much the ultra-wealthy can impose their wills on regular people and a stress test for democracy.

Starting in 2018, a mysterious entity called Flannery Associates LLC started buying up farmland in the rural parts of Solano County, oftentimes lying about their intent, fracturing families, and suing people to do so. It turns out that Flannery was a front group for a number of billionaire investors, including Marc Andreessen, who want to use about 17,500 of the 60,000 acres they bought to start their own privately held city with no government accountability. To do so, they need to have the 40-year-old orderly growth plan overturned via ballot initiative, which is currently an uphill battle.

Every promise they make is more transparently impossible than the next; one of the big talking points is that it would provide affordable housing, but apartments would start at $450,000 and houses would cost at least $1 million. Locals are vehemently opposed, not out of any NIMBY instinct, but because they don’t trust billionaires who lied to them for years, know they’ll wind up paying for billions in infrastructure costs, and fear that the city will ruin the rest of the farmland.

Local lawmakers have invited the California Forever to build housing and commercial space in the county’s existing cities, which have plenty of space for expansion, but the group doesn’t want to deal with regulation. Instead, they’re spending money like crazy on advertising and gifts to local businesses and non-profits, whose names they keep adding to their website without permission.

Last week, the county’s Board of Supervisors held a long public comment meeting on the initiative before voting to order a report on the potential impact of the development. More than 300 people attended — myself included — and it’s likely to be one of the most expensive local initiatives ever.

2️⃣ Montana: It looks as if several major constitutional amendments will be on the ballot in November, including one that would guarantee abortion rights and a pair of amendments aimed at changing the state’s election system.

The first would create non-partisan top-four primaries and the other would require a candidate to win at least 50% to be declared the winner of an election. The legislature would determine what would happen in the event that nobody won that clear majority, with a runoff or ranked choice voting the most likely systems.

3️⃣ Yeehaw: Ground Game Texas just turned in signatures for ballot initiatives in two major cities.

In McAllen, voters could have the chance to limit local political contributions to $500, down from $10,000 for mayor and $5000 for county commission. The organization is also pushing an initiative that would give local voters a more robust direct democracy system. The mayor is pissed.

In Dallas, Ground Game Texas submitted more than 50,000 signatures in support of a marijuana decriminalization measure that would no doubt pass and no doubt be fought tooth and nail by Gov. Greg Abbott and AG Ken Paxton.

4️⃣ Arkansas: Activists have until this coming Friday to submit the 90,000+ signatures required to get their initiatives on the ballot. Republicans have thrown up every road block they can at the Arkansas Educational Rights Amendment, which among other things would regulate Gov. Sarah Huckabee-Sanders’ signature voucher program by requiring schools that receive them to comply with the same standards as public schools.

The organization trying to take the amendment down is partially funded by Republican mega-donor Jeffrey Yaas, who is a major investor in TikTok, which Gov. Sarah Huckabee-Sanders banned from government devices when she took office. Some of her advisors are also working for the anti-amendment campaign. Nice to see them all getting along.

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The Supreme Court’s Power Grab Was Sanctioned by Inaction

As Democrats panicked over Joe Biden’s debate performance and argued over what to do about their presidential nominee, the Supreme Court on Friday issued a decision that stripped the White House of some of its most important powers.

After decades of conservatives chipping away at it, Chief Justice John Roberts fired the kill shot to government regulation with his majority decision in Loper Bright Enterprises v. Raimondo. The decision overturned a principle known as the Chevron Deference, which gave power to federal agencies in the executive branch to interpret laws and write more specific rules based on the expertise of their staffers and appointees. Now, judges will no longer have to defer to their expertise, which is a problem because the judiciary is controlled by lunatics who have no idea what they’re talking about.

This was a fundamentally political decision, motivated by ideology and enabled by impunity. I spoke on Friday with Sarah Lipton-Lubet, the president of Take Back the Court Action Fund, to understand the political implications of the decision and the court’s term more broadly, as well as what Democrats need to do to mitigate this disaster.

Progress Report: So just how bad was this ruling? What does it mean?

Sarah Lipton-Lubet: The Supreme Court has been stealing power from the other branches of government, and today’s ruling was that on steroids. It’s going to wreak havoc on basically the entire government's ability to function. When you accurately describe what the court is doing, it sounds so outrageous that it sounds like hyperbole, but it's not. And all you have to do is read the dissents in some of these opinions by Justice Kagan, Sotomayor, and Jackson to see just how far they're going.

From Kagan’s dissent in Loper Bright:

A rule of judicial humility gives way to a rule of judicial hubris. In recent years, this Court has too often taken for itself decision-making authority Congress assigned to agencies. The Court has substituted its own judgment on workplace health for that of the Occupational Safety and Health Administration; its own judgment on climate change for that of the Environmental Protection Agency; and its own judgment on student loans for that of the Department of Education. But evidently that was, for this Court, all too piecemeal.

In one fell swoop, the majority today gives itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law.

So what can these agencies no longer do going forward? How deep will it cut?

I think the question is, who knows? Right? Because what this decision in the lower right and relentless did today was basically make the Supreme Court, the art, the final arbiter of every regulator friend, at every agency in the country thinks that they have absolutely no, no expertise in. And so we'll have to see what happens. It's not going to be good, I can tell you that much.

It’ll be chaos in the lower courts, trying to figure out what on earth to do with this ruling that is going to put district court judges in charge of all sorts of technical, expert regulations that they don't know anything about and don’t have the background in.

Do you think most judges even want that power and responsibility? They are so used to deferring to actual experts and now they’re going to be hit with a constant flow of cases, each presenting some new arcane expertise to learn. They’re going to have to learn labor law, climate science, and so many other things.

I think you're right that judges who have a kind of fair and genuine sense of what the judiciary's role is in our structure of government are not going to want to be agency deputies. They know their role and know that other branches of government have roles that they respect. But the people who are going to want to weigh in are these Trump MAGA judges who are out there to promote a right-wing partisan agenda and not really to be public servants. They're gonna have a field day.

Imagine Matthew Kacsmaryk getting even more cases about government-protected rights and regulation.

I just fell out of my chair. I cant even.

With the decision to uphold a law preventing domestic abusers from possessing a firearm, the court seemed to walk back, however slightly, Bruen’s demolition of gun control. Any chance of something similar here when they see how much chaos they’ve unleashed? Or has Pandora’s box been opened?

The box is open, and that’s because they wanted it open. They wanted these cases. They wanted Loper Bright, there wasn't even really an issue still being litigated when they reached out to take it. It was so that they could overturn this 40-year-old, perfectly reasonable, sensible precedent so that they have this power in their hands.

Are they going to want to give up this power that they've stolen for themselves? No. Will there be a case from time to time where they decide maybe it looks real bad for them to do what they want to do in their hearts? Okay, sure. Or to follow the so-called legal standards where they actually lead? Yeah, that'll happen. Because there's no actual jurisprudence here, it’s just ends-justify-the-means, very right-wing policymaking.

The funny thing is that Clarence Thomas years ago defended the Chevron deference and rescinded that not all that long ago. Do you think the right-wing justices feel like they can just do what they want now, including make things up?

The conservative justices operate with complete impunity. There is not even a hint that they think of themselves as public servants or as accountable to anyone in any way.

Do you think that would change if they were being held accountable at all for their extreme corruption or had any reason to believe that they were going to be investigated for their ties to plaintiffs and other interested parties?

I think they are certainly are political actors. In many of the decisions in ending this term in particular, they watch what’s going on, they know what the zeitgeist is. And sometimes they say, “Fuck it, we just want to ban abortion before the midterms anyway.”

But sometimes they pay attention and that's why it's so important for Congress to step up and act on its responsibility to be a co-equal branch of government and hold these justices accountable even in minor ways for the flagrant corruption and ethical abuses that are happening and being revealed day after day. Basically the justices say eff you to the Senate Judiciary Committee, and that’s not a good model of government.

And yet the Senate Judiciary Committee seems uninterested in accountability. What’s going on there?

I'm not gonna pretend to understand or know why some of these decisions are being made. The politics of this, I think, is pretty simple: The American people don't like corruption and they understand what corruption is. They understand that Justice Thomas taking these lavish gifts from billionaire benefactors is corrupt no matter what the court tried to do this week to try to redefine what a bribe is to make themselves look better.

I know that people get it and know that people don't want it, and there’s only upside to continuing to expose that, call national attention to it, and keep the spotlight on it.

Dick Durbin regularly refuses to use that power and says that he couldn’t enforce a subpoena against Leonard Leo or Harlan Crow, which I don’t believe to be true. But even without those two on the stand, there are other things they could do, right?

They can hold hearings, they could engage in investigations. They have tools at their disposal. Even the minority in the House is trying to shine a light on these transgressions and this grossly corrupt behavior, because that's what you do when something is grossly corrupt. You find a way to use your power as a member of Congress to bring attention to it.

What do you think they’d ultimately find?

They’re only scratching the surface, and you can tell in part by Thomas and Alito’s reactions — they just don't care. They just don't care what their their responsibilities are supposed to be. And we’ve been thinking of this all in terms of a very narrow concept of what is a conflict of interest.

There's been fantastic reporting exposing so many of the gifts that Justice Thomas takes. And then usually someone says, “but you know, so and so wasn't a party in the case before the court that term,” so you just shrug your shoulders. But these billionaires are not just taking the justices to Bali, but they are funding organizations that are filing amicus briefs before the Supreme Court.

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