James.galbraith

Republicans appear undaunted by new abortion allegations against Georgia Senate candidate Herschel Walker, with national GOP headliners continuing to campaign for him and no immediate shift in the polls.

Conservatives in the state say they are more concerned about control of the Senate chamber shifting to Republicans than they are about an individual candidate, and they are willing to look past Walker’s personal scandals as a result. Current polling averages show the two candidates in a dead heat.

“What I like about Herschel is he stood up there and he said, ‘I want to say first up, I've given my life to Jesus Christ. Some of those things in my past are over,’” said Mike Abernathy, an Evangelical pastor in Georgia. “I believe that and I'll go with that.”

The most recent allegations came from an anonymous woman who alleged via Zoom at a press conference that Walker pressured her to have an abortion when they were dating in the early 1990s, drove her to a clinic and paid for the procedure. She was the second ex-girlfriend to tell a similar story of Walker pressing to end a pregnancy and paying for the procedure.

Walker, who as a candidate has said he opposes abortion in all situations including rape and incest, has denied both sets of allegations. Walker called the story “a lie” in a Fox News interview and then got straight back to the campaign trail flanked by Republicans, who’ve flown to Georgia to help Walker in the final weeks before Election Day.

Sen. Lindsey Graham (R-S.C.) campaigned with Walker on his statewide bus tour stop in Cumming, Ga. on Wednesday and the pair also did a joint appearance on Fox News’ Hannity show, where Walker again denied the allegations.

“If you’re a conservative, they don’t give a damn about the truth. They’re trying to destroy his life 13 days before the election,” Graham said.

Sen. Ted Cruz (R-Texas) was set to join Walker’s bus tour at stops in Monroe and Dublin, Ga., on Thursday.

Earlier in the summer, Walker was confronted with accusations that he had been an absentee father to three other children he had out of wedlock, after reporting from the Daily Beast. The following weekend, he was embraced by Faith & Freedom leader Ralph Reed.

On Oct. 4, The Daily Beast reported that a different ex-girlfriend of Walker was also encouraged to get an abortion that Walker then paid for. Walker also called that story a lie.

Christian Walker, Walker’s son and a conservative social media influencer, piled on, calling his father a liar. In multiple tweets and video posts, Christian Walker accused his father of not living up to the “moral, Christian, upright man” that he portrays himself to be on the campaign trail.

Afterwards, Sens. Rick Scott (R-Fla.) and Tom Cotton (R-Ark.) flew into Georgia to campaign with Walker.

Public polling in the race has shown little change from the Walker scandals. Warnock started the summer up as much as 10 points over Walker, but the two are now tied.

On Thursday, the National Republican Senatorial Committee released its own internal polling for the race that they said shows Walker ahead by 7 points. It was difficult to gauge the validity of the poll because the committee did not release the full data set.

"On October 8th, PayPal updated its terms of service agreement to include a clause enabling it to withdraw $2,500 from users' bank accounts simply for posting anything the company deems as misinformation or offensive," reports Grit Daily. "Unsurprisingly, the backlash was instant and massive," causing the company to backtrack on the policy and claim the update was sent out "in error." Now, after the criticism on social media died down, several media outlets are reporting that the company quietly reinstated the questionable misinformation fine -- even though that itself may be a bit of misinformation. From a report: Apparently, they believed that everyone would just accept their claim and immediately forget about the incident. So the clause that was a mistake and was never intended to be included in PayPal's terms of service magically ended up back in there once the criticism died back down. That sounds plausible, right? And as for what constitutes a "violation" of the company's terms of service, the language is so vaguely worded that it could encompass literally anything. The term "other forms of intolerance" is so broad that it legally gives the company grounds to claim that anyone not fully supporting any particular position is engaging in "intolerance" because the definition of the word is the unwillingness to accept views, beliefs, or behavior that differ from one's own. So essentially, this clause gives PayPal the perceived right to withdraw $2,500 from users accounts for voicing opinions that PayPal disagrees with. As news of PayPal's most recent revision spreads, I anticipate that the company's PR disaster will grow, and with numerous competing payment platforms available today, this could deliver a devastating and well deserved blow to the company. UPDATE: According to The Deep Dive, citing Twitter user Kelley K, PayPal "never removed the $2,500 fine. It's been there for over a year. All they removed earlier this month was a new section that mentioned misinformation." She goes on to highlight the following: 1.) [T]he $2,500 fine has been there since September 2021. 2.) PayPal did remove what was originally item number 5 of the Prohibited Activities annex, the portion that contained the questionable "promoting misinformation" clause that the company claims was an "error." 3.) [T]he other portion, item 2.f. which includes "other forms of intolerance that is discriminatory," which some have pointed out may also be dangerous as the language is vague, has always been there since the policy was updated, and not recently added. PayPal's user agreement can be read here.

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Imagine waking up every morning and thinking, "If only it were 1952, things would be swell."

Welcome to the world view of some two-thirds of Republicans. A new Public Religion Research Institute poll released Thursday added a twist to the right track/wrong track question, asking respondents whether they agreed with a clarifying follow-up: "Since the 1950's, American culture and way of life has mostly changed for the worse."

Two-thirds of Republicans agreed with that statement, while 50% of independents did, and 30% of Democrats did. The only other group that was more nostalgic about the '50s than Republicans was white evangelicals, 71% of whom longed for a return to last century. 

“This 1950s question has been a key predictor of support for Trump/Republicans over the years,” tweeted Natalie Jackson, research director of PRRI.

Overall, 74% of Americans said the country is going in the wrong direction, including 93% of Republicans, 76% of independents, and 53% of Democrats—majorities among all partisan groups.

But it appears that some two-thirds of that discontent isn't about charting a new or different path forward for the country. Rather, it's at least partially driven by a desire to turn back the clock to a different era—one in which women were still effectively confined to the home, abortion was banned, a Catholic and a person of color had yet to be elected president, segregation was still rampant, landmark civil rights and voting rights laws hadn't been enacted yet, and LGBTQ Americans still lived in fear of losing their friends, family, and livelihoods if anyone uncovered their secret.

As veteran journalist John Harwood noted, "Two-thirds of Republicans believe America's culture and way of life were better in the 1950s—a concise explanation for this political moment."

Donald Trump and his MAGA allies came close to overthrowing our democracy on January 6, and they will try again if they win in 2022. The best thing you can do is to help get out the Democratic vote for the midterms, and we need everyone to do what they can. Click here to find all the volunteer opportunities available.

Republicans have accelerated their attacks on our democracy in advance of the 2022 election. Help defend democracy by chipping in $5 to progressive grassroots orgs in battleground states.

The 2022 midterms are just around the corner, and you sent us a ton of fantastic questions for this week’s episode of The Downballot. Among the many topics we cover: which states are likely to report results slowly—and how will those results change over time; the House districts that look like key bellwethers for how the night might go, and which might offer surprises; why and how Democrats make the hard decisions on which races to triage; the top legislative chambers to keep an eye on; and plenty more!

An anonymous reader shares a report: I wanted to know how all these merchants had gotten my professional contact info. What I discovered was both unsurprising in today's world of relentless online marketing and aggressive consumer data sharing, and also a bit disquieting. It also had less to do with these small shops than I might have expected: Square's parent company, Block, was selling access to customers' inboxes, even if all we do is elect to receive a receipt from a single transaction (more on that below). Privacy experts said selling marketing information in this way clearly falls short of best privacy practices. And while it doesn't appear to violate data protection laws, the practice is walking a fine line. "They're trying to solve for a lot of different nuances whilst trying to serve their objective and their merchant objective, which is keeping as many people opted in as possible," said Sucharita Kodali, a vice president and retail analyst at Forrester. Experts also told Protocol the situation seems to highlight how Block, as well as other payment processors and fintech platforms, operate in a bit of a privacy gray zone. Sometimes that gray zone leaves no one in charge of consumers' data rights, and sometimes it means the companies, deep within their terms of service, have legal loopholes that give them room to use our information in ways we might not expect.

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As of Wednesday, two women have now come forward claiming Georgia Republican Senate candidate Herschel Walker forced them to have an abortion and assisted in the process of accessing reproductive health care. Identified as Jane Doe, the second allegation was announced Wednesday by attorney Gloria Allred. According to Allred, the woman was in a romantic relationship with Walker and has evidence that Walker knew of her pregnancy and plans to terminate it.

The woman also alleges that Walker drove her to the clinic to abort her pregnancy. While the woman plans to remain anonymous, she will share evidence to support her claims, Allred said.

"All evidence in support of her romance with Mr. Walker will be revealed at the press conference," Allred said. Allred has represented numerous victims of sexual misconduct and assault.

During the news conference, the woman, identified as Jane Doe, said Walter "pressured" her into getting an abortion after she learned she was pregnant in April 1993, Axios reported. "I was devastated because I felt that I had been pressured into having an abortion,” she said.

While the incident was years ago, she noted that she was motivated to come forward after seeing Walker deny allegations by other women and publicly claim to be “pro-life.”

"Particularly, I saw him state that the woman's claims were not true because he never signed any cards using the letter 'H,'" Doe said. "I knew that was not true because he had often signed letters to me using ‘H.'"

She noted that while she is not politically motivated, she has chosen to stay anonymous due to “fear of reprisals.” 

Per Doe’s recollection, she and Walter began dating in the ‘80s, while he was a football player for the Cowboys.

"After discussing the pregnancy with Herschel several times, he encouraged me to have an abortion and gave me the money to do so," Doe said.

"I went to a clinic in Dallas, but I simply couldn't go through with it. I left the clinic in tears. When I told Herschel what had happened, he was upset and said that he was going to go back with me to the clinic the next day for me to have the abortion. He then drove me to the clinic the following day and waited for hours in the parking lot until I came out.”

She continued: ”He then drove me to get medications and supplies as prescribed and then drove me home."

Walker has been very open and loud about his anti-abortion policies, yet earlier this month, the Daily Beast reported a woman’s claims that Walker paid for her abortion and then sent her a get-well card in 2019. That claim, which arose only two weeks ago, has impacted Walker’s campaign.

While Walker claimed he did not know the woman, she is allegedly the mother of one of his children, the Daily Beast reported. The woman even had a receipt from an abortion clinic with a check signed by Walker.

Following that allegation, Walker’s son Christian, in a series of social media posts, accused his father of lying about his past and potentially having several neglected children across the country.

Yet Walker continues to deny all claims thrown at him, and even held a press conference prior to Allred’s release of information on the second allegation.

“Now the Democrats are doing and saying anything they can to win this seat," Walker said Wednesday, prior to Allred’s press conference. "But I want them to know they don’t know Hershel Walker. … I told them when I got in this race, ‘I’m gonna win.’ They now see that I am gonna win.”

According to The Guardian, Walker has previously said he is in favor of a total abortion ban. However, on the debate stage earlier this month, he tried to deny being in favor of an outright ban and has consistently changed positions on how strict of a ban he favors.

How should we be reading the 2022 polls, in light of shifting margins and past misses? In this week’s episode of The Downballot Public Policy Polling's Tom Jensen joins us to explain how his firm weights polls to reflect the likely electorate; why Democratic leads in most surveys this year should be treated as smaller than they appear because undecided voters lean heavily anti-Biden; and the surprisingly potent impact abortion has had on moving the needle with voters despite our deep polarization.

Related Story: Woman that Herschel Walker denied knowing is the mother of one of his children

Related Story: Herschel Walker says forget about him holding gun to his wife’s head because Jesus

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This week veteran journalist Bob Woodward will release 20 taped interviews he made while interviewing Trump for his book, Rage, which was released in September 2020. The ostensible reason Woodward is releasing them now is to promote an audiobook he’s created featuring those tapes. Leaving aside the fact that, in doing this, Woodward joins a long line of people with firsthand knowledge and access to Trump’s tenure in the Oval Office who’ve withheld critical insight and information from the public about the man’s behavior until they’ve had an opportunity to profit from it, the tapes themselves are nonetheless revealing. 

Put bluntly, they reveal that everything Democrats have said from the outset about Trump’s character—or lack thereof—and his sheer pathology and disregard for anyone except himself, are wholly accurate. What is really new here is that you can hear the malice in his voice, firsthand. 

In an interactive piece published in Sunday’s Washington Post, Woodward includes audio snippets of those tapes, together with their transcription. He emphasizes at the outset that the printed version doesn’t do justice to the sheer malevolence that Trump displays in his responses to Woodward’s questions—specifically his tone, his volume, and his mannerisms—and he’s right. Listening provides a much clearer picture of what we were all forced to deal with for those four awful years. Because the way Trump speaks—his constant self-aggrandizing tone, his sneering self-certainty—would qualify as a caricature, taken straight from any film or depiction of an organized crime mob boss.

The audio cannot be embedded here, and the Post’s article is behind a paywall, so the only way you’ll be able to appreciate that—until the tapes themselves are released and (presumably) disseminated on public forums—is by purchasing a Post subscription. However, many of the quotes Woodward cites in the Post article have been publicly aired on CBS’ Sunday Morning:

Woodward had previously released segments of these interviews in Sept. 2020 (again in conjunction with the book release, Rage, in which he quoted these same interviews), most notably the revelation—obtained by Woodward six months before—that Trump had deliberately played down the magnitude of the COVID-19 pandemic. (By the time Woodward saw fit to release these segments, hundreds of thousands of people were already dead, many of them due directly to denial and skepticism about social distancing, masking, and business closures inculcated by Republican governors seeking to curry favor with Trump.) 

In May 2020, Woodward interviewed Trump’s national security adviser, Robert O’Brien, who explained how he and others had warned Trump in January of the seriousness of the COVID-19 pandemic and its potential magnitude. Woodward states that it was only then that he fully appreciated Trump’s “abdication of presidential responsibility.”

I then went back and reviewed Trump’s comments to me and his public statements after that Jan. 28 warning. It was clear that Trump never communicated the magnitude of the threat to the American people. It amounted to a large-scale deception and coverup.

Woodward also notes that subsequent interviews show how Trump “edited” his own statements with regard to the COVID-19 pandemic. For example, it’s not until a July 21, 2020, interview that Trump tells Woodward that he just “noticed” the virus had escalated into a global pandemic. During that same interview, Trump acknowledges that—months into the pandemic—he does not yet have any plan to combat it but advises Woodward to wait four weeks and his “plan” would materialize. Trump also backhandedly acknowledges that his “plan” to combat COVID-19 was wholly tied to his electoral prospects in 2020:

You will see the plan, Bob. I’ve got 106 days. That’s a long time. You know, if I put out a plan now, people won’t even remember it in a hundred—I won the last election in the last week.

The interviews and their tone paint a clear picture of Trump’s egomania and narcissism, his complete lack of empathy or compassion for the victims of a raging virus, and his reflexive habit of demeaning and belittling anyone who disagrees with him.  For example, asked whether the CIA’s assessment that North Korean dictator Kim Jong Un was “cunning, crafty but ultimately stupid,” was in fact correct, Trump took offense at this characterization because no one could possibly know more about the North Korean despot than Trump, who calls him “very smart.”

Because they don’t know. Okay? Because they don’t know. They have no idea. I’m the only one that knows. I’m the only one he deals with. He won’t deal with anybody else […]

The word chemistry. You meet somebody and you have a good chemistry. You meet a woman. In one second you know whether or not it’s all going to happen. ...

Woodward updates the impression he reached at the end of his prior book, Fear, in which he concludes Trump was simply “the wrong man for the job.”

Two years later, I realize I didn’t go far enough. Trump is an unparalleled danger. When you listen to him on the range of issues from foreign policy to the virus to racial injustice, it’s clear he did not know what to do. Trump was overwhelmed by the job. He was largely disconnected from the needs and leadership expectations of the public and his absolute self-focus became the presidency.

The problem for Woodward, though, is that most of us recognized Trump was an “unparalleled danger” to the country years ago, and this was most visibly confirmed on Jan. 6, 2021, when he tried unsuccessfully to overthrow the U.S. government so he could remain in power, even after a majority of Americans had tossed him out of office. 

Woodward emphasizes one revealing quote. When asked whether he’d prepared a speech about “law and order” himself, Trump provides an essential insight into what motivates him:

I get people, they come up with ideas. But, the ideas are mine, Bob. Want to know something? Everything is mine.

Taken in isolation, Trump’s verbal spew is alarming enough. But considering the fact that he continues to dominate the entire Republican party—and, by extension, that half of the American electorate who continue to hang onto his words as if they were gospel truth—it is nothing short of horrifying.

Putting Trump into a position where he could wield real power was the biggest mistake this country ever made. The problem is, it’s still making it.

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The program is almost certainly legal, but that fact is unlikely to persuade a judiciary dominated by his partisan foes.

I regret to inform you that we’re back to the will-it-happen-or-not phase of President Joe Biden’s plan to forgive student debt — but this time it’s not his fault. On Thursday, a Trump-appointed judge in Texas became the first judge in the country to declare that the program is invalid.

The program, which was announced this summer and which would provide some borrowers with as much as $20,000 in debt relief, was already under legal assault.

Last month, the conservative United States Court of Appeals for the Eighth Circuit temporarily prohibited the Biden administration from “discharging any student loan debt” under the program. That case is known as Nebraska v. Biden.

Again, the order in Nebraska is temporary — it appears designed to pause the program while the court figures out whether or not to strike it down — but it is an extraordinarily ominous sign for Americans hoping to benefit from the program. Although the Eighth Circuit has not yet ruled on whether the program is lawful, its order suspending the program remains in effect.

Now this week, Judge Mark Pittman, the Texas judge, has gone one step further. His decision in Brown v. Department of Education rests on the so-called “major questions doctrine,” a doctrine, largely invented by Republican appointees to the federal judiciary, which the Supreme Court’s current majority has invoked to strike down policies supported by President Joe Biden.

Although there are few good arguments that the debt relief program violates federal law as written, it is entirely possible, even perhaps likely, that Pittman’s view of the program will ultimately prevail in a judiciary dominated by Republican appointees.

Biden announced the loan cancellation program in August. Under its terms, many borrowers who earned less than $125,000 during the pandemic should receive up to $10,000 in student loan forgiveness. Borrowers who received Pell Grants, federal grants that target low-income college students, may receive as much as $20,000 in debt forgiveness.

The program is almost certainly permissible under a post-9/11 law known as the Heroes Act, which gives the Secretary of Education broad authority to “waive or modify” many student loan obligations “as the Secretary deems necessary in connection with a war or other military operation or national emergency.” The relevant “national emergency” is the Covid-19 pandemic and the global economic disruption that emerged from the pandemic.

In the previous administration, President Donald Trump ordered then-Secretary of Education Betsy DeVos to temporarily suspend payments “on student loans held by the Department of Education,” in order to alleviate some of the financial strain on student loan borrowers caused by the pandemic. Federal law permits the secretary to suspend payments for up to three years for borrowers experiencing “economic hardship.”

Now that the most severe phase of the pandemic appears to be over, the Biden administration plans to resume student loan payments in January 2023, It coupled that resumption of payments with permanent student loan forgiveness for many borrowers.

Almost immediately after Biden announced the forgiveness program, however, Republicans and other ideological conservatives began scheming for ways to block this program in court. The Nebraska lawsuit currently pending in the Eighth Circuit was brought by five Republican state attorneys general and one Republican state governor.

One of the biggest legal obstacles facing these Republican litigants is “standing,” the requirement that anyone who challenges a government policy in federal court must be able to show they were injured in some way by that policy. It is unclear whether anyone is injured by a policy that reduces some people’s debt loads and that does nothing to most Americans.

Nevertheless, opponents of Biden’s loan forgiveness program have a very good chance of prevailing eventually, as the Supreme Court’s GOP-appointed majority has spent the last several years seeking to maximize its own authority to invalidate executive branch actions it might disagree with.

The Heroes Act gives the Education Department sweeping discretion to modify student loan obligations when an emergency arises

The Heroes Act was enacted in 2003, not long after the 9/11 attack on the World Trade Center, and as America was ramping up its decades-long wars in Iraq and Afghanistan. The law promises financial assistance to members of the military who “put their lives on hold, leave their families, jobs, and postsecondary education in order to serve their country.”

Yet, while the immediate purpose of the Heroes Act was to provide student loan relief and other assistance to service members, the law also gave the secretary of education broad authority to provide relief to student loan borrowers impacted by future military operations or disasters. Congress apparently believed that, rather than requiring a new act of Congress every single time a large group of Americans should receive student loan relief, it was better to permanently empower a political official to grant such relief when they deemed it appropriate.

The law enables the secretary to “waive or modify” federal student loan obligations “as the Secretary deems necessary in connection with a war or other military operation or national emergency.” It defines a “national emergency” to include anything that the president declares to be such an emergency (such as the Covid-19 pandemic), and it states explicitly that the secretary “is not required to exercise the waiver or modification authority under this section on a case-by-case basis” for each individual student borrower.

Congress, in other words, made several very explicit choices. First, it determined that the president alone shall have the unilateral authority to determine when a national emergency exists that is sufficiently grave to activate the secretary’s loan cancellation authority. Second, once that authority is activated, the law states that loans may be waived or modified “as the Secretary deems necessary.” Congress chose to vest discretion over who should receive student loan relief in a very specific individual within the executive branch — and it rather pointedly did not give this authority to the judiciary.

Finally, Congress was quite clear that the secretary’s authority extends beyond the most acute phase of a national emergency. The law states that the secretary may act “in connection with” an emergency, rather than using narrower language that might constrain the secretary’s authority more, like if Congress had placed temporal or similar restrictions on when the secretary may act. And it states that one purpose of the secretary’s loan cancellation authority is to ensure that student borrowers impacted by a national emergency “are not placed in a worse position financially in relation to that financial assistance because of their status as affected individuals.”

All of which is a long way of saying that the Biden administration stood on very firm legal ground when it announced its new student loan cancellation program.

Congress, moreover, must have known that, in giving this broad discretion to a presidential appointee, this appointee might wield that authority in ways that the opposing party disagrees with — or that the president’s opponents view as excessively political. And yet Congress chose to accept this risk, believing that it was better to ensure that people who deserve loan relief receive that relief.

The courts are unlikely to care what the Heroes Act actually says

The Heroes Act was not controversial when it became law — it passed the Senate by unanimous consent, passed the House by a 421 – 1 vote, and was signed by President George W. Bush, a Republican. Nevertheless, there is a real risk that the courts, which are dominated by Republican appointees, will override Congress’s near-unanimous judgment and invalidate Biden’s student loan relief program.

The reason why is something known as the “major questions doctrine,” an ill-defined legal doctrine mentioned nowhere in either the Constitution or in any federal statute, and that appears to have been entirely fabricated by members of the judiciary.

Under this doctrine, the Supreme Court explained in a 2014 opinion, courts may invalidate a federal agency’s actions if they determine that this action touches upon a matter of “vast ‘economic and political significance.’”

Technically, the major questions doctrine permits Congress to empower agencies to decide questions of great significance if Congress uses sufficiently precise language. But the Court has never said just how precise that language must be. And the whole point of statutes like the Heroes Act is to give agencies discretion to act when unexpected events occur. A requirement that Congress must define an agency’s powers with extraordinary precision defeats that purpose.

The Supreme Court also has not explained what constitutes a matter of “vast economic and political significance.” And the Court’s decisions suggest that the answer to this question is largely arbitrary — and hinges more on whether five justices wish to veto an agency’s actions than on whether that agency has actually done something of particular importance.

Take, for example, the Court’s decision in West Virginia v. EPA (2022). That case involved the Obama administration’s Clean Power Plan, a 2015 policy that set emissions reduction targets that the energy industry was supposed to hit by 2030.

But the Clean Power Plan proved to be a total dud. For one thing, it never took effect — the Supreme Court voted along party lines to suspend it in 2016. More importantly, it appears that nothing significant would have changed if the Clean Power Plan had gone into effect.

That’s because many energy producers decided to shift away from coal-fired plants with high levels of emissions to cleaner technologies, not because the government required them to do so but because coal-fired plants are more expensive to operate than cleaner plants. Thanks in large part to good ol’ free market capitalism, the energy industry wound up meeting the Clean Power Plan’s 2030 targets 11 years early, in 2019.

And yet, in West Virginia, the Supreme Court deemed this nothingburger regulation to involve matters of such vast economic or political significance that it must be struck down.

So the major questions doctrine has no clear substance and does not operate in any predictable way. As Justice Elena Kagan wrote in her West Virginia dissent, the doctrine functions as a “get-out-of-text-free” card, which permits her Court to act as it pleases when the text of a federal law might undermine a majority of the justices’ “broader goals.”

Thus, if a majority of the Supreme Court wants to invalidate Biden’s loan relief program, they already claimed the power to do so for purely arbitrary reasons in cases like West Virginia. And six of the Supreme Court’s nine seats are held by Republicans, all of whom have already wielded this substance-free doctrine to invalidate Biden administration policies on subjects ranging from vaccination to evictions.

It is far from clear whether anyone is allowed to file a lawsuit challenging the loan cancellation program

One of the biggest legal obstacles facing anyone who wants to challenge the Biden administration’s loan forgiveness program in court is that it is far from clear that federal courts are allowed to hear such a lawsuit. As the Supreme Court held in Lujan v. Defenders of Wildlife (1992), no one may file a federal lawsuit challenging a government policy unless they have suffered an “injury in fact” that is “fairly traceable” to the policy that they are challenging — a requirement known as “standing.”

But who, exactly, is injured by this federal loan policy? Most Americans aren’t impacted in any way by the loan cancellation policy, and those who do qualify for loan forgiveness should be better off than they would be in the absence of the policy — because they will have less debt.

Nevertheless, the various plaintiffs challenging the loan cancellation program have each offered fairly baroque arguments that they are somehow worse off because of this program.

In the Nebraska case, for example, several of the plaintiff states argue that they are worse off because the loan forgiveness program encourages student borrowers who received loans under the Federal Family Education Loan Program (FFELP) — a program that stopped issuing new loans in 2010 — to convert those loans into something known as a “direct” loan. FFELP borrowers may convert those loans into direct loans at no cost, but under the Biden administration’s loan forgiveness program, FFELP borrowers must convert their loans to direct loans by September 29, 2022, in order to qualify for forgiveness.

The plaintiff states essentially argue that they have invested in FFELP loans and that they will not receive as much money from these investments if borrowers convert their FFELP loans into direct loans. Thus, they claim, they are financially worse off because of the loan forgiveness program and have standing to challenge it in federal court.

The problem with this argument, as Judge Henry Edward Autrey explained in an opinion dismissing the Nebraska case, is that the September 29 deadline for FFELP borrowers to convert their loans into direct loans has already passed. Thus, the loan cancellation program creates no “ongoing incentive” for FFELP borrowers to convert their loans into direct loans, and the states will not be injured by the loan cancellation program even if they are heavily invested in FFELP loans.

Meanwhile, in a different lawsuit, an attorney at a conservative litigation shop claimed that he will be worse off if his loans are canceled under the Biden administration’s program because the unusual tax regime in his home state of Indiana would require him to pay higher state taxes if his loans are forgiven under the new program. But the Biden administration clarified shortly after this lawsuit was filed that people eligible for loan forgiveness may opt out, thus rescuing this plaintiff from paying higher state taxes — and eliminating any injury he may have experienced as a result of the loan forgiveness program.

The plaintiffs in Brown, meanwhile, essentially argue that they have standing because they were denied an opportunity to tell the Secretary of Education their opinion about how the loan relief program should have been designed, through a process known as “notice and comment.” The problem with this argument is that the Heroes Act explicitly permits the secretary to forego notice and comment when forgiving student loans.

It is possible, in other words, that all of the lawsuits challenging the student loan relief program could fail because no plaintiff can show that they were injured in any legally significant way by the program.

That said, while the standing requirement prevents federal courts from hearing cases where no one was injured, a plaintiff only has to show the smallest injury to overcome that requirement — if a bank or investor can show that they will lose a single penny because of the loan forgiveness program, for example, that would be enough. So the likelihood that Republicans and other opponents of the loan forgiveness program will eventually find some plaintiff who is invested in some obscure financial instrument, whose value drops when student loans are forgiven, remains fairly high. And once they find this unusual plaintiff and convince them to sue, that will be enough.

And that’s assuming that the courts apply the ordinary standing rules that apply to all other litigants. The fact that Judge Pittman ruled in favor of the Brown plaintiffs, despite their weak arguments supporting their standing to bring this suit, suggests that not all judges will concern themselves with the nuances of standing doctrine.

So how long will this all take to play out?

It is likely that the Eighth Circuit will move fairly quickly in the Nebraska case — Judge Autrey’s decision holding that the state plaintiffs lack standing to sue is currently before that appeals court. In its order temporarily halting the loan forgiveness program, moreover, the Eighth Circuit called for a tight briefing schedule.

The appeals court could ultimately agree with Autrey that the plaintiffs don’t have a reason to be suing. But the conservative Eighth Circuit — 10 of the court’s 11 active judges were appointed by Republicans — could also issue an order declaring the loan forgiveness program invalid under the major questions doctrine any day now.

Meanwhile, Pittman’s order will appeal to the archconservative United States Court of Appeals for the Fifth Circuit. It is very likely that the Fifth Circuit, arguably the Trumpiest court in the country, will affirm Pittman’s decision.

Should that happen, or should any other federal appeals court block the loan forgiveness program, the Biden administration will undoubtedly seek relief in the Supreme Court. The justices might rule on that request right away. But the Court might also deny immediate relief to the Biden administration and then sit on the case for months, leaving the lower court’s order blocking the program in effect for that entire months-long waiting period.

It may be a little while, in other words, before the Supreme Court hands down its final word on whether to permit the student loan forgiveness program to stand. But a lower court decision suspending the program could be handed down very soon. And, if that happens, the program may never actually take effect.

Of course, there are few good legal arguments against the loan forgiveness program. The Heroes Act is quite clear that the Education Department has broad authority to forgive student loans “in connection with” a historic crisis such as the Covid-19 pandemic.

But the Court’s “major questions” decisions make it clear that the Supreme Court doesn’t need a good legal argument to strike down a federal agency’s action. It only needs five votes.

Update, November 11, 1:05 pm ET: This story, originally published October 25, has been updated to include information about the Texas case challenging the student debt relief program, Brown v. Department of Education.

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By addressing the debt ceiling in the lame-duck session, they could avoid a potential crisis next year.

With Republicans still projected to retake the House, Democrats are increasingly eyeing an urgent priority during the final months of the legislative session: raising the debt ceiling.

Addressing the debt ceiling, which essentially involves increasing the amount that the United States is able to borrow, is a routine congressional duty. Failing to do so would cause the US to default on its debt, triggering a global financial crisis. Recently, House Minority Leader Kevin McCarthy (R-CA) suggested he’d be willing to risk such a crisis as speaker of the House, if doing so won the GOP serious spending cuts to climate and social programs.

“We’re not just going to keep lifting your credit card limit,” McCarthy told Punchbowl News last week. “And we should seriously sit together and [figure out], where can we eliminate some waste?”

McCarthy’s comments are now spurring Democrats to consider heading off any such possibility by increasing the debt ceiling during the lame-duck period (after the November elections, when Congress returns from its current recess). Doing so could be the only way to completely avoid the disastrous prospect of a debt default if lawmakers aren’t able to reach an agreement next year.

Why Democrats want to raise the debt ceiling now

The US is currently projected to hit its existing debt ceiling sometime in 2023, according to the Bipartisan Policy Center. While raising the ceiling should be relatively straightforward, it’s become a contentious process — and an opportunity for the minority party to extract policy concessions or score political points. Both parties have used debt ceiling increases to their advantage, but Republicans have done so much more frequently in recent years.

In 2011, for example, Republicans balked on suspending the debt limit and refused to move forward until President Barack Obama agreed to key spending cuts, concessions they ultimately secured. The US got so close to default that year, however, that Standard and Poor’s downgraded the country’s credit rating.

Political experts note that this disagreement marked one of the first times it seemed like lawmakers were actually willing to go over the edge, despite the economic chaos that could ensue. Were the US to actually default, that would likely downgrade the dollar and lead to a recession.

While a default has never happened, Republicans’ behavior in 2011 — and their current rhetoric — suggests that they’re more open to the possibility and taking such fights to that point.

Democrats, including in the White House, are reportedly considering preempting this worst-case scenario by tackling the debt ceiling this winter, according to Axios. The White House has denied that such conversations are happening.

There are also still questions about what a debt ceiling bill could look like. While some lawmakers including Sen. Jeanne Shaheen (D-NH), and a group of prominent House Democrats, have expressed support for doing away with the debt ceiling altogether, others, like Biden and Sen. Bernie Sanders (I-VT), have opposed taking this route. That’s likely because such talks still offer an opportunity to evaluate spending, and because it could be a useful tool for Democrats should the GOP hold the White House and Congress.

In lieu of getting rid of the debt limit altogether, there’s been growing pressure on Democrats to consider increasing it to such a high value that there isn’t likely to be a standoff over the issue in the short term.

Were Democrats to get this done this year, they could also be doing McCarthy a favor, especially if his party ends up narrowly controlling the House. With debt ceiling drama off the table, McCarthy won’t have to worry about wrangling the more extremist factions of his party who may be more open to default, and completely unwilling to settle for anything but the most aggressive cuts to social spending.

How Democrats could do it during the lame-duck session

There are a few options available to Democrats if they want to raise the debt ceiling.

The first is to pass an increase through regular order. Because of the filibuster, lawmakers in the Senate need 60 votes to advance most bills, meaning Democrats’ 50-person majority would require 10 Republicans to join them in order to approve any increase. Given Republicans’ reluctance to vote for an addition to the debt ceiling last year, it’s uncertain that position would change this time around, especially if the party is hoping to use this policy as a tool in 2023.

The second option is to pass an increase by establishing a carveout to the filibuster, something the Senate effectively did last year when Republicans wouldn’t support a debt ceiling increase. A carveout would allow Democrats to pass legislation with a simple majority and do away with the 60-vote threshold specifically on this issue.

Due to Sens. Joe Manchin (D-WV) and Kyrsten Sinema’s (D-AZ) reluctance to make changes to the filibuster rules, however, it’s not clear if they would agree to using this avenue. Last year, Manchin and Sinema only got on board because Democrats and Republicans had agreed to a deal for a one-time carveout.

The third option is to use budget reconciliation again. Doing so would also only require a simple majority, which means Democrats could do it on their own with 50 votes and Vice President Kamala Harris serving as a tie breaker. The downside of using this process — as has been evident with other bills — is that it can be time-consuming, since it requires passing both a budget resolution and a final bill, as well as a taxing vote-a-rama on amendments. It’s not guaranteed Democrats would have enough time — or, again, the support from Manchin and Sinema — to successfully pursue this route, either.

Regardless of the approach they take, Democrats face a tight timeline. Besides potential action on the debt ceiling, lawmakers have several other must-pass bills to contend with, including government funding and the National Defense Authorization Act, which establishes budgets for the military. On top of these routine bills, Democrats also have limited time to advance other key priorities like protections for same-sex marriage and the Electoral Count Reform Act, which is intended to make it more difficult to challenge the outcome of presidential election results.

Political experts have also wondered if lawmakers will actually feel an impetus to get anything done if the final default deadline isn’t imminent. Traditionally, Congress has been known for procrastinating, and hasn’t raised the limit until close to the last possible moment.

Still, approving a debt ceiling increase this year could save Democrats, and the country, a major headache in 2023 — a reason that could be motivation enough.

Let's stop pretending religious candidates are any more honest or trustworthy.

Timothy Snyder says a GOP House could have terrible, world-historical consequences.

A leaker has claimed that Apple is working on a version of macOS exclusive for the M2 iPad Pro, with it expected at some point in 2023. Apple Insider reports: Leaker Majin Bu's sources have shared that Apple is working on a "smaller" version of macOS exclusively for the M2 iPad Pro. It is said to be codenamed Mendocino and will be released as macOS 14 in 2023. Testing is being done with a 25% larger macOS UI so it is suitable for touch. However, apps run on the product would still be iPad-optimized versions, not macOS ones. It isn't clear why Apple would move the iPad to a macOS interface in a half-step like this. Those clamoring for macOS on iPad do so for the software more than the interface. [...] The other possible explanation is this wasn't macOS at all. Apple could be working to bring iPadOS even closer to macOS by adding a Menu Bar and other Mac-like interactions. It already introduced a Mac windowing feature in iPadOS 16 called Stage Manager, this could be the next iteration. Majin Bu also suggests that the exclusivity to M2 iPad Pro could be a marketing push. If the feature is only available on that iPad, more people would buy it.

Read more of this story at Slashdot.

Following in the footsteps of Florida Gov. Ron DeSantis, congressional Republicans are pushing for a bill to make his infamous “Don’t Say Gay” bill national.  

The measure would prohibit the use of federal funds “to develop, implement, facilitate, or fund any sexually-oriented program, event, or literature for children under the age of 10,” the bill reads.

The bill, introduced by Louisiana Rep. Mike Johnson along with 32 other GOP members of Congress, defines sexually oriented materials as “any depiction, description, or simulation of sexual activity, any lewd or lascivious depiction or description of human genitals, or any topic involving gender identity, gender dysphoria, transgenderism, sexual orientation, or related subjects.”

RELATED STORY: The Harvard case headed to SCOTUS is not about college admissions. It’s about white supremacy

Johnson calls the bill the “Stop the Sexualization of Children Act” and went on a Twitter tirade explaining it, starting with the disgusting accusation that “The Democrat [sic] Party and their cultural allies are on a crusade to immerse young children in sexual imagery and radical gender ideology at school and in public.”

Johnson then highlights examples of various curricula he takes issue with and cases where “sexually-oriented events” such as drag queen story hours for children were paid for with federal money, and used to “expose children under 10 years of age to sexually explicit material.”

The bill also gives parents and legal guardians the right to “bring a civil action” in federal court if their child is exposed to any outlawed federally funded content “in whole or in part.”

Of course, U.S. kids are not being sexualized, as Johnson and other Republicans claim. In fact, it’s quite the opposite. The Advocate reports that most students in the nation aren't exposed to or taught about LGBTQ+ issues in school at any point.

A 2021 GLSEN study found that “the majority of students reported that their classes did not teach positive representations of LGBTQ+ history, people, or events, and did not include positive representations of LGBTQ+ topics in sex education.”

“Furthermore, regarding curricular resources, most students did not have access to LGBTQ+-inclusive materials and resources, including LGBTQ+-related textbooks or other assigned readings, LGBTQ+-inclusive content in the curriculum, and LGBTQ+-related library resources.”

​​Harvard Cyber Law Clinic instructor Alejandra Caraballo wrote on Twitter that the pretext of the bill is crystal clear:

“I can’t overstate how radical the private right of action portion is. The bill is so broadly defined that a pediatric hospital could be sued for having a pride flag or a medical pamphlet about gender dysphoria. It deputizes anti-LGBTQ bigots to engage in bounty lawsuits.”

Caraballo adds:

Universities, public schools, hospitals, medical clinics, etc. could all be defunded if they host any event discussing LGBTQ people and children could be present. The way they define "sexually oriented material" simply includes anything about LGBTQ people.

Activist and content creator Erin Reed explained on Twitter that the bill actually goes much further than DeSantis’ bill.

She posits that it would ban “any exposure to transgenderism to children under the age of 10.”

“This would fire all trans teachers, Trans workers in hospitals that serve children, counselors, social workers. It defines being trans as ‘sexual.’”

Republicans have not been meek about sharing their intent to pass such laws, either. At current count, at least 12 states have explored legislation that could mimic Florida's law.

Arjee Restar, assistant professor of epidemiology at the University of Washington, told NPR, “The institutionalization of these bills is an overt form of structural transphobia and homophobia, and it goes against all public health evidence in creating a safe and supportive environment for transgender, nonbinary, queer, gay and lesbian youths and teachers to thrive."

With Democrats in control of the White House and the Senate, the bill would likely never get passed. But the midterms are quickly approaching, with early voting already underway in several states. If you didn’t understand before what was at stake in this election, the Republicans have shown you their hand: trans rights, reproductive rights, affordable health care, the right to marry who you love, and workplace protections are all on the table.

On Daily Kos’ The Brief, we speak with polling giant Drew Linzer, who runs polling firm CIVIQs and comes in to talk about a new poll his team conducted for Daily Kos. He is also here to explain, as a professional, how to not stress out every time you see a poll going your way or the other way. One thing is for sure, though: We are living in historic times, and what that means for these midterms cannot be easily predicted—so Get Out The Vote!

It’s no surprise to hear someone in the U.S. say they’re living paycheck to paycheck. More than half of Americans do, by some measures. It’s a little more surprising to hear someone who earns well into six figures say they’re living paycheck to paycheck—but get used to hearing that, too. The question is this: What does it mean when people with $250,000 or more in annual income say they’re living paycheck to paycheck? And how is a definition of living paycheck to paycheck, where the term is being applied to these high earners, affecting our economic discourse and tax policy?

According to a PYMNTS/Lending Club report, 36% of people earning $250,000 or more are now living paycheck to paycheck, though just 10-12% said they had trouble paying their bills, while the remainder said they were living paycheck to paycheck but were comfortable. One such person recently turned to MarketWatch for help with their extremely first-world financial issues.

RELATED STORY: This may not be the stupidest argument against taxing the rich, but it's trying hard

The writer’s question was about consolidating debt through a home equity line of credit (HELOC) and investing in rental properties, starting from this financial scenario:

By the end of 2022, I will have made $350,000 before taxes as the sole breadwinner and head of household. This is a great starting point and I’m very aware how blessed we are to be in this position, but I’m always looking ahead on how to improve. I currently have $88K left in student loans (originally close to $150K) and very little credit card debt (less than $2K with more than $25K available). I have two auto loans totaling $170K for two electric vehicles at 5% interest.

As a result, “after taxes, 401(k) contributions, bills, savings and mortgage ($4,500), on paper, I’m paycheck to paycheck.”

This writer isn’t being overtly a jerk about this—there isn’t the “oh, poor me” sense that often comes through when high-income people talk to reporters about their budgets. But it’s profoundly messed up that “paycheck to paycheck,” a term originally used to describe people struggling to pay their essential monthly bills and vulnerable to relatively small economic emergencies, has expanded to the point where this person would ever think to describe themself that way. If your monthly line items include savings and a 401(k) contribution, you’re not living paycheck to paycheck—you’re literally saving for the future.

If one of your major debts is the $170,000 loan on your “two electric vehicles” (c’mon, just say Tesla), that’s an extremely strong statement that you've chosen to live paycheck to paycheck, by the expanded definition that’s apparently taking over the world of personal finance reporting. If the investments you’re considering are rental properties, you’re getting ready to enrich yourself at the expense of renters who are actually living paycheck to paycheck.

Paycheck to paycheck implies precarity, yet now, more than 20% of people earning over $250,000 say they’re living paycheck to paycheck but are comfortable. Other assessments of who is living paycheck to paycheck have found different, and often smaller, shares of the population and, in particular, the high-income population living that way, New York Times columnist Peter Coy wrote last summer. He cites a Bank of America Institute report arguing that high discretionary spending across incomes “tends to imply that while some people may be living paycheck to paycheck, they may still have scope to reduce their discretionary spending if they need to.”

No kidding. Yet the definition of paycheck to paycheck that encompasses people raking in hundreds of thousands of dollars a year and spending it on Teslas and investments is clearly taking over in the personal finance press. In other words, the term has been redefined into uselessness—and that’s dangerous. Writing up the trials and travails of high-income people struggling to pay a big mortgage and private school tuition is a common way to argue against tax increases on the highest-earning 3% of households. Similarly, the claim that a significant percentage of high-earners are living paycheck to paycheck was used to propel the idea that inflation was so serious that even people making hundreds of thousands of dollars were feeling the sting.

When affluent people are defined as struggling financially, it’s usually bad news for people who are actually struggling financially. Because somehow the answer is never that our government and society should invest in things that would help middle- and working-class families. It’s always something along the lines of depriving government of money to invest in education because paying higher taxes would be too much for people who are already paying private school tuition. And focusing on the alleged financial struggles of the affluent is yet another way the media disappears the very large majority of people with much lower incomes and much larger challenges.

Read 9 remaining paragraphs | Comments

Remember how right-wing doo-doo head Candace Owens was seen hanging out with Ye (formerly Kayne West)? Then remember how Ye very recently announced that because he kept getting banned from Instagram and Twitter for threatening “The Jews,” he was going to buy the conservative social media app Parler? Well, Candace Owens’ husband, George Farmer, is the CEO of the failing Parler property. I say failing because, according to reports, Parlement—the parent company of Parker—has been struggling to create revenue for the application and has therefore been trying very diligently to get rid of the “low number of daily active users” app at a high price.

Upon making the announcement that Ye would be bailing out some random executives by purchasing the Get, Rumble, and Truth Social competitor, the Parler Outreach Team emailed hundreds of PArler investors and verified users about the news. It was the standard this is exciting news for us Parler folks kind of pablum, but there was one catch: They forgot to BCC all of the emails and instead CC’d them. This means hundreds of peoples’ personal email addresses were exposed.

Teehee, Ye.

Adam Ryan was the first person to point this out.

And here is a response to that.

Tech news outlet Gizmodo reports that the people effectively doxed by their own right-wing hate machine were Parler users with “Gold Badges.” This is like a tier above Twitter’s “blue checks.” According to Parler, the Gold Badge:

This badge indicates the account is owned by notable influencers, celebrities, journalists, media organizations, public officials, government entities, businesses, organizations, non-profits, or anything of-the-like. The Gold Badge is intended to protect well known public figures and organizations against impersonation. In order to qualify for this badge, the account must provide proof of existence to Parler through various means depending on the type of account.

Who has a Gold Badge on Parler? The Daily Dot reports that people like Matt Walsh (anti-trans looney toon), Tim Pool (what if a somehow less funny Joe Rogan and a somehow less intelligent version of Ben Shapiro had a show), along with aides and former aides to conservative luminaries like Rep. Matt Gaetz, Madison Cawthorn, someone working for Sen. Ted Cruz, and Eric Trump’s wife, Lara Lee. The @TrackInflation Twitter account wrote of the fallout:

“The email chain was incredible. Just a bunch of nobody verified accounts pushing their own product. Racial slurs. Upset individuals getting doxxed. One guy was pushing racist websites he ran. Incredible group of folks here.”

The big problem for conservative hucksters is that they never start with the product, they start with the con. This frequently means that creating something worthwhile is very low on the priority list. Instead, getting quick money and handing off the scam potato to the next pyramid scheme contestant is the number one mission.

On Daily Kos’ The Brief, we speak with polling giant Drew Linzer who runs polling firm CIVIQs, comes in to talk about a new poll his team conducted for Daily Kos. He is also here to explain, as a professional, how to not stress out about every time you see a poll going your way or the other way. One thing is for sure though, we are living in historic times and what that means for these midterms cannot be easily predicted—so Get Out The Vote!

Republican candidates for every just about every office love talking about crime, and how Democrats are responsible for all of it, but when it comes to actually doing something about, they come up empty. It’s particularly true for Republicans running in the Senate battleground states, where ads like this one and this one from the Mitch McConnell-linked Senate Leadership Fund Super Pac in Pennsylvania dominate.

But if you go to Republican candidate Mehmet Oz’s campaign website and find your way to issues, you’ll find precious little on crime, other than his  “law enforcement” page, which says he’s “a strong supporter of our law enforcement and will give them a powerful voice in Washington,” and a pledge to “support efforts to ensure they always have the resources they need to do their job.” That’s it. Oz’s anti-crime policy page.

That’s true of the battleground Republican Senate candidates, a Daily Beast review has found. Funding the police is just about all those candidates commit to, and the one who has tried to make his reputation on fighting illegal drugs—J.D. Vance—“does not have any crime platform on his website at all.”

Mr. Deputy Herschel Walker did not return the Daily Beast’s calls when they asked for his plans for combatting the crime he imagines he has been deputized to fight. That despite the fact that the nice blonde lady in her suburban kitchen in this ad from the McConnell Super PAC says that crime is “running rampant.” And it’s all Sen. Raphael Warnock’s (D) fault, if you can believe it. Which of course you can’t. 

RELATED: Republicans have big vulnerabilities on crime. Democrats just have to make the case

If we’re going to talk crime, let’s talk crime. Let’s talk about what the American public thinks about crime: “Mass shootings topped Americans’ list of crime-related concerns at 55%, a 6-point increase since July 2021, while 53% identified gun violence as worrying, a 9-point bump from last year.” That’s according to a survey released this month from the progressive consortium Navigator Research, reported here by Kerry Eleveld.

Guns. Murders by guns. That’s what has people worried in that survey, along with “hate crimes and domestic terrorism, issues number three and four, respectively.” Where is murder by guns happening the most? In the red states where Republican leaders have allowed guns to proliferate. Third Way (yeah, Third Way) decided to delve into the issue earlier this, and here’s what they found: “In 2020, per capita murder rates were 40% higher in states won by Donald Trump than those won by Joe Biden.”

Not just 2020: “8 of the 10 states with the highest murder rates in 2020 voted for the Republican presidential nominee in every election this century.” The state with the highest murder rate in the country is Mississippi, and even if the city of Jackson, with its Democratic mayor, were taken out of the calculus, Mississippi would still have the highest murder rate.

Here’s a grim statistic from a blue state Republicans love to hate: California. For the last five years, Kern County in that state has had the highest murder rate in the whole state. The county seat is Bakersfield, which has a Republican county executive, a Republican mayor, and is represented by Republican House Minority Leader Kevin McCarthy.

Speaking of Republican mayors:

“The way Republicans are talking about crime makes it sound like we’ve returned to peak violent crime in 1991,” one expert told the Daily Beast. “The reality is that violent crime is much, much lower… Politicians who play up violent crime are contributing to perceptions among the public that crime is out of control.”

What is out of control, and the Navigator poll reflects that, is gun violence and mass shootings because of the proliferation of guns, as well as the pervading concern of growing domestic terrorism coming from the far right—thanks in the main to Republicans.

That’s what Democrats can and should talk about in answering the soft-on-crime charge. Republicans have literally handed leadership to violent right-wing extremists and helped the gun industry create their army.

If you want to help make America the place it ought to be, it starts by electing more and better Democrats. And you can do your part right here. Please give $1 to each of these Daily Kos-endorsed Democrats today!

Democrats can build a blue wave if we get out every voter. Click here to find out all the ways you can help in the last days before Election Day.

The Fifth Circuit’s opinion in Community Financial v. CFPB is completely incoherent.

Three judges appointed by former President Donald Trump handed down an astonishing decision on Wednesday, effectively holding that the Consumer Financial Protection Bureau, the federal agency charged with protecting consumers from a wide range of predatory activity by lenders and other financial services, is unconstitutional and must be stripped of its authority.

The decision by the conservative United States Court of Appeals for the Fifth Circuit relies on a novel reading of an obscure provision of the Constitution, and is entirely at odds with a Supreme Court decision that rejects the Fifth Circuit’s reading of that provision. This is not unusual behavior from the Fifth Circuit, which often reads the Constitution in novel and unexpected ways that benefit political conservatives and the Republican Party.

Indeed, Judge Cory Wilson admits in the court’s new opinion in Community Financial Services v. CFPB that “every court to consider” the arguments presented in this case has deemed the CFPB to be “constitutionally sound.”

Should the three Trump judges’ decision stand, it would effectively neutralize much of the federal government’s ability to fight financial fraud — although that outcome probably is not likely given that the Fifth Circuit’s decision is such an outlier. As Wilson explains, the CFPB assumed enforcement authority “over 18 federal statutes” when it was formed nearly a dozen years ago, and these statutes “cover everything from credit cards and car payments to mortgages and student loans.”

Meanwhile, the agency also enforces a “sweeping new proscription on ‘any unfair, deceptive, or abusive act or practice’ by certain participants in the consumer-finance industry.” All of these consumer protections could evaporate if the Fifth Circuit’s decision earns the favor of the Supreme Court.

The CFPB is constitutional

The judges’ decision in Community Financial Services v. CFPB, turns on the somewhat unusual way the CFPB is financed.

Most federal agencies receive an annual appropriation from Congress that may be altered each year during legislative negotiations over federal spending. Many agencies, however, have separate funding sources, such as the ability to collect fees or assessments from the entities they regulate, and do not rely on the annual appropriations process to fund their operations.

This arrangement, where an agency has a continuous funding source regardless of what Congress decides to do in annual debates over federal spending, is particularly common among financial regulatory agencies. The Federal Reserve, the Federal Deposit Insurance Corporation, the Federal Housing Finance Agency, the National Credit Union Administration, and the Office of the Comptroller of the Currency are all financed outside of the annual appropriations process. So is the CFPB.

Nothing in the Constitution prevents Congress from funding agencies in a variety of ways. Congress could fund an agency through an annual appropriation, or a five-year appropriation, or a 500-year appropriation. It may also authorize the agency to collect fines or fees to fund its operations.

The Constitution does provide that “no money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” But, as the Supreme Court held in Cincinnati Soap Co. v. United States (1937), this provision “means simply that no money can be paid out of the Treasury unless it has been appropriated by an act of Congress.” Thus, if the federal government wants to spend its money, Congress must pass a law permitting it to do so.

But Congress did pass a law creating the CFPB and its financing structure, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, which provides that the Federal Reserve shall transfer up to 12 percent of its “total operating expenses” to the CFPB each year, upon the CFPB’s request.

Because this funding mechanism was enacted by Congress, it is constitutional.

The Fifth Circuit imposed a novel limit on how Congress may fund federal agencies

The Fifth Circuit’s reasoning in Community Financial is difficult to parse, but the three judges essentially argue that the CFPB is unconstitutional because its funding passes through the Federal Reserve — another agency that is not funded through the annual congressional appropriations process — before arriving at the CFPB.

Wilson’s opinion describes this funding structure as “double-insulated funding” because the CFPB’s money passes through two agencies that are not subject to annual appropriations, and he claims that this kind of funding structure is “unique.” He also deems this somewhat unusual funding structure to be problematic because none of the other agencies that are insulated from the annual appropriations process wield “enforcement or regulatory authority remotely comparable to the authority the [CFPB] may exercise throughout the economy.”

That last statement is doubtful, given that one of the other agencies that are insulated from annual appropriations is the Federal Reserve itself, the agency that controls the US money supply and that has such extraordinary power over the global economy that markets rise and fall based on merely on investors’ conjectures about what the Federal Reserve might do in the future.

In any event, the Constitution does not say that “double-insulated” agencies are unconstitutional. It also does not say that Congress must fund powerful agencies differently than it funds less powerful agencies. It only says that Congress must pass a law funding an agency before that agency may spend money to carry out its functions.

And, in this case, Congress enacted such a law.

By Sky Palma An Idaho man who was jailed for allegedly yelling homophobic slurs while trying to run over two women with his car is facing a new charge of arson. But according to Idaho law, he cannot be charged with a hate crime, The Advocate reports. Matthew Lehigh, 31, was charged with three counts of aggravated assault and one count of malicious injury to property along with the felony arson charge related to his burning of Pride flags and vandalism at a LGBTQ community center in Boise. “The women were standing next to their vehicle when the suspect intentionally drove his car at them, the w…

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A few of them are getting out of their defensive crouch and blaming Republicans for gun proliferation.

Former President Donald Trump signed legal documents describing evidence of election fraud that he knew were false, a federal judge indicated on Wednesday.

U.S. District Court Judge David Carter wrote in an 18-page opinion that emails from attorney John Eastman, an architect of Trump’s last-ditch effort to subvert the 2020 election, needed to be turned over to the Jan. 6 select committee. Those emails, Carter wrote, “show that President Trump knew that the specific numbers of voter fraud were wrong but continued to tout those numbers, both in court and to the public.”

The emails are among the files that Eastman had been declining to turn over to the committee, citing attorney-client privilege. While Carter concluded that some of the materials fell under that privilege, he ruled that Eastman must disclose four emails to congressional investigators because they are evidence of a likely crime.

“The Court finds that these four documents are sufficiently related to and in furtherance of the obstruction crime,” wrote Carter, who is based in California.

According to Carter, Trump and his attorneys alleged in a Dec. 4 filing in Georgia state court that Fulton County had improperly counted more than 10,000 votes of dead people, felons and unregistered voters. They then moved that proceeding to federal court and discussed whether to use the same statistics in that filing. In private correspondence, Trump’s lawyers noted that the then-president had resisted signing documents containing “specific numbers.” On Dec. 31, Eastman emailed other Trump lawyers that the numbers filed in state court were not accurate.

“Although the President signed a verification for [the state court filing] back on Dec. 1, he has since been made aware that some of the allegations (and evidence proffered by the experts) has been inaccurate,” Eastman wrote in an email to colleagues. “For him to sign a new verification with that knowledge (and incorporation by reference) would not be accurate.”

However, Trump and his lawyers opted to file the federal complaint using the same numbers that Eastman conceded were inaccurate.

“President Trump, moreover, signed a verification swearing under oath that the incorporated, inaccurate numbers ‘are true and correct’ or ‘believed to be true and correct’ to the best of his knowledge and belief,” added Carter, an appointee of President Bill Clinton. “The emails show that President Trump knew that the specific numbers of voter fraud were wrong but continued to tout those numbers, both in court and to the public. The Court finds that these emails are sufficiently related to and in furtherance of a conspiracy to defraud the United States.”

A spokesman for Trump and an attorney for Eastman did not immediately respond to requests for comment.

Carter’s ruling arms the Jan. 6 select committee with another batch of evidence supporting its investigation of Trump’s effort to subvert the 2020 election. Eastman’s emails were part of a cache of thousands held by Chapman University, Eastman’s former employer. The select committee subpoenaed Chapman to obtain the emails in January, and Eastman sued to block their release.

The judge’s latest decision could also provide legal fodder for ongoing criminal investigations being conducted by the Justice Department and by prosecutors in Fulton County, Georgia into the efforts by Trump and his allies to overturn the election. It’s unclear whether those investigators already have the emails at issue, but if they don’t, Carter’s latest ruling has put some on the public record and could ease access to others.

Carter, who has presided over Eastman’s lawsuit, has become an instrumental figure in aiding the select committee’s efforts. In the spring, he issued rulings delivering thousands of pages of Eastman’s emails to Congress. His March 28 ruling, in which he said it was “likely” that Trump and Eastman conspired to commit felony obstruction, has become a regular feature of the select committee’s public hearings.

At that time, the committee decided not to press for access to more of Eastman’s messages, but recently urged Carter to review an additional set that had yet to be disclosed. Carter agreed that most of the emails the select committee sought were properly designated attorney-client privileged or attorney work-product privileged. However, he said another 33 of them should be delivered to the select committee — including the four that were privileged but fall under the “crime-fraud exception.”

Eastman was a central player in the effort by Trump to pressure his then-vice president, Mike Pence to single-handedly attempt to block Congress from certifying Joe Biden’s election. He battled with Pence’s lawyers even as violence wracked the Capitol.

Among the emails Carter ruled disclosed on Wednesday was an exchange in which one of Trump’s attorneys suggested using pending litigation to force delays in the counting of electoral votes.

“Merely having this case pending in the Supreme Court, not ruled on, might be enough to delay consideration of Georgia,” one of Trump’s attorneys wrote in an email quoted by Carter.

“This email, read in context with other documents in this review, make clear that President Trump filed certain lawsuits not to obtain legal relief, but to disrupt or delay the January 6 congressional proceedings through the courts,” Carter ruled.

Democratic Rep. Katie Porter of California has done the never-ending yeoman’s work of explaining how our country’s economic system is fraught with inequality, corruption, and a ferocious lack of accountability. One of her most well-known practices during congressional committee hearings is using a white board and simple math to explain how absurd big business’ assertions and evasions are when dealing with the problems of consumer protections and exploitation. She frequently does this directly in the face of big business leadership, for all the world to see.

On Tuesday, Rep. Porter questioned Mike Konczal, director of macroeconomic analysis at the Roosevelt Institute, about the current inflation hitting the United States, Europe, South Korea, Israel, and the U.K. Headlines from right-wing and traditional media outlets have steadily highlighted the “40-year-high” of inflation being seen in our country’s gas and food prices. Few have pointed out that corporate profits have shot through the roof at the exact same time and to such a degree that saying our current “inflation” isn’t manufactured by big business greed is laughable.

That is exactly what Porter and her whiteboard aimed to show Americans.

RELATED STORY: Katie Porter reminds pharma CEO how much of his $13 mil salary came from tripling cancer drug price

In the first clip, Porter holds up a chart showing that the largest drivers of inflation during the pandemic were the record profits being squeezed out of Americans by corporations. While we all tightened our belts, the one percent kept on taking and taking. Asked directly about the causes of the rising costs of goods and services Konczal explained that the main “driver” was “corporate profit” growing at a staggering 54% clip during the pandemic. But that is not all: That number continues now, at that very same rate. Once you get used to skimming off the top, you don’t want to stop!

But as some real lame media outlets will remind everyone, lots of economists say that corporate profits always increase during inflationary times (which should be a red flag about how our economy “works” in the first place). Porter does the serious work of asking if this is historically “in line” with how corporate profits have increased during other periods of inflation.

Konczal replied, “As it is reflected there, and in other analysis, It is significantly higher in this recovery.” Porter goes on to show exactly how greedy this all is. Corporations’ costs for doing business, as well as for paying labor (that’s you and me), are lower than they have been in decades.

Porter then pulls out a graph that shows how since Ronald Reagan sold the American working class out in order to keep himself in hair pomade, “markups” on goods and services have steadily increased over the years. However, there’s a “Top Gun” jump in the markups starting in 2020. 

Rep. Porter, doing God’s work here.

On Daily Kos’ The Brief, we speak with polling giant Drew Linzer who runs polling firm CIVIQs, comes in to talk about a new poll his team conducted for Daily Kos. He is also here to explain, as a professional, how to not stress out about every time you see a poll going your way or the other way. One thing is for sure though, we are living in historic times and what that means for these midterms cannot be easily predicted—so Get Out The Vote!

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Once again House minority leader Kevin McCarthy is signaling that Republicans will be cutting off—or at least sharply reducing—military aid to Ukraine if voters hand his party control of Congress in the upcoming midterm elections.

"I think people are gonna be sitting in a recession and they're not going to write a blank check to Ukraine," McCarthy responded when asked about Ukraine's fortunes under a Republican-held Congress. "It's not a free blank check."

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This caused an immediate uproar, and for obvious reasons: The notion that whether Putin's war of conquest in Ukraine will succeed or fail now hinges on whether Republicans win enough seats in Congress to cut off military aid, as Donald Trump himself tried to do with varying degrees of success during his own Putin-allied administration. This is terrifying to Europe, is a source of new hope for Russian leaders facing the possible full collapse of Russia as their vaunted Russian military continues to be reduced to metal shards at the hands of Ukrainian defenders, and is a concept that political reporters in this country still cannot quite wrap their minds around.

You'll note that McCarthy carefully worded the statement to evade any actual policy stance, as he tries to simultaneously seek support from the Jordan-Gaetz-Trump wing of the party and the members of Congress who hate that wing's guts. Equating current military aid to Ukraine to a "blank check," however, wasn’t something that could be ignored.

It also made things awkward for some of McCarthy's colleagues. Rep. Michael Waltz of Florida, a minority member of the House Armed Services Committee, tried to walk back McCarthy's line with some generic bleating about oversight, but he didn't deny that his party would try to cut the aid.

The awkward truth for political reporters is that there is substantial support in the Republican Party for cutting off aid to Ukraine and allowing Putin’s Russia its conquest, and that’s the caucus that McCarthy is catering to now in his continued attempts to cling to the party leadership. Republicans aren't bluffing, and the mere thought that Republicans might not be bluffing as its lawmakers straight-up promise to introduce a nationwide abortion ban, slash Social Security, and sabotage Ukrainian defense efforts will apparently never get through to thickheaded reporters who rely on sugarcoating the party’s stunning extremism for the sake of keeping access to the extremists.

On the contrary, Republicanism has increasingly worked to back Russian autocrat Putin over the interests of world democracies, these last six months, and promises to cut off Ukrainian aid under the banner of "America First" have now become commonplace. Last March, when Rep. Marjorie Taylor Greene appeared at a white nationalist-organized event in which the crowd literally chanted their support for Putin, Rep. Adam Kinzinger wondered if it would be "a chance to burn out the cancer of the Republican Party—those that are, you know, Putin sympathetic." But Kinzinger also predicted that McCarthy wouldn't move against Greene because "she has power."

That dreamed-of purge was a pipe dream, and by May, 68 Republican members of the House and Senate were voting to oppose new Ukrainian aid.

It only got worse from there. "Ukraine aid faces tougher crowd if Republicans take over," announced a Politico headline by early September. "Americans can't afford to provide a blank checkbook to Ukraine when we have inflation, gas prices, supply chain crisis, all of the above, going on at home," a gutlessly anonymous House Republican told Politico.

Cut to just a few weeks back, and the Conservative Political Action Conference—the influential group that every Republican leader from Trump to Mitch McConnell to Kevin McCarthy falls over themselves to cater to—was tweeting images of the Russian flag as it seemingly congratulated Putin on "the annexation of 4 Ukrainian-occupied territories"—language that mirrored Russian government claims that Ukrainian land was not legitimately Ukraine's to begin with.

"When will Democrats put #AmericaFirst and end the gift-giving to Ukraine," the tweet added. That full embrace of Putin rhetoric from the influential anti-democratic organization shocked many, but was merely the continuation of the sly partnership between the Trump wing of the party and a Russian government that has sought to boost pro-Putin Republicans via propaganda and espionage. It’s not something Republican lawmakers can generally say aloud unless they hail from a particularly pro-treason part of the country. But the people whose conferences they attend aren’t just saying it, they’re screaming it.

McCarthy is clearly now signaling that he’ll be going along with whatever the pro-Putin wing of Republicanism wants of him. It’s not a surprise. He once talked a good game about maybe opposing Vladimir Putin's plans to rebuild the Soviet Union by invading and annexing Russia's once-soviet neighbors, back in the earliest days of the invasion, but that talk fizzled as his fellow House Republicans increasingly began to line up behind Donald Trump's own crooked condemnations of the Ukrainian government he extorted and his insistence that Putin's war of conquest was nothing the United States ought to stick its nose into.

Trump himself has increasingly been piping up with new demands that America stay out of Putin’s way and—given the seditionist sack of crap’s ever-present hints that he’ll be launching a new Republican bid for the presidency any day now—we can presume that McCarthy will continue to trim his rhetoric so that it matches Trump’s expected demands that Republicans support Putin’s invasion.

Kinzinger and other Republican Party outcasts should probably give up on the idea that Republican leaders specifically selected for their willingness to back everything from petty grifts to an anti-American coup will suddenly decide that allying with a kleptocratic tyrant is a bridge too far. There are no convictions at play here, only the gamesmanship of politicians willing to do almost anything to collect a few more votes. Right now, the “America First” crowd is more hostile to the Ukrainian government Donald Trump tried to extort than they are to Vladimir Putin’s campaign of child-stealing, mass-murdering genocide, so that is the policy House Republican leadership will pursue.

Daily Kos has identified three U.S. Senate seats that could flip from red to blue in 2022. Please donate $1 to each of these races right now.

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Abortion has been the number one topic for campaign ads this year, so we're talking with veteran ad maker Kelly Grace Gibson, the founder of the women-led Stronger Than Comms, about how Democrats are pressing their advantage on this episode of The Downballot. Gibson walks us through the nuts and bolts of how ads actually get made; how Democrats have shown unusual message discipline on abortion while simultaneously tailoring their messages to different audiences; and why she has hope for some progressive candidates and ballot measures even in difficult states.

Click here to go see the bonus panel!

Hovertext:
Can we please not? Can the world just be boring for a while?

Today's News:

The failure rate of semiconductors shipped from China to Russia has increased by 1,900 percent in recent months, according to Russian national business daily Kommersant. The Register reports: Quoting an anonymous source, Kommersant states that before Russia's illegal invasion of Ukraine the defect rate in imported silicon was two percent. Since that war commenced, Russian manufacturers have apparently faced 40 percent failure rates. Even a two percent defect rate is sub-optimal, because products made of many components can therefore experience considerable quality problems. Forty percent failure rates mean supplies are perilously close to being unfit for purpose. According to Kommersant, Russian electronics manufacturers are not enjoying life at all because, on top of high failure rates, gray market gear doesn't flow with the same speed as legit kit and supply chains are currently very kinked indeed inside Russia. The newspaper lays the blame on economic sanctions that have seen many major businesses quit Russia. Gray market distributors and other opportunistic operators have been left as the only entities willing to deal with Russian businesses. Gray market folks are not renowned for their sterling customer service nor their commitment to quality. They get away with it because buyers of products with -- ahem -- unconventional origins self-incriminate if they complain to authorities. Perhaps they're even dumping dud product on Russian buyers, knowing that they can't easily access alternatives.

Read more of this story at Slashdot.

"Everyone visiting Qatar for the World Cup needs to install spyware on their phone," writes security researcher Bruce Schneier. His comments are in response to an article from the Norwegian Broadcasting Corporation (NRK), reporting: Everyone traveling to Qatar during the football World Cup will be asked to download two apps called Ehteraz and Hayya. Briefly, Ehteraz is an covid-19 tracking app, while Hayya is an official World Cup app used to keep track of match tickets and to access the free Metro in Qatar. In particular, the covid-19 app Ehteraz asks for access to several rights on your mobile., like access to read, delete or change all content on the phone, as well as access to connect to WiFi and Bluetooth, override other apps and prevent the phone from switching off to sleep mode. The Ehteraz app, which everyone over 18 coming to Qatar must download, also gets a number of other accesses such as an overview of your exact location, the ability to make direct calls via your phone and the ability to disable your screen lock. The Hayya app does not ask for as much, but also has a number of critical aspects. Among other things, the app asks for access to share your personal information with almost no restrictions. In addition, the Hayya app provides access to determine the phone's exact location, prevent the device from going into sleep mode, and view the phone's network connections. It remains to be seen whether Qatar will strictly enforce the installation of these apps. "I know people who visited Saudi Arabia when that country had a similarly sketchy app requirement," says Schneier. "Some of them just didn't bother downloading the apps, and were never asked about it at the border."

Read more of this story at Slashdot.