Thursday, March 09, 2023

The Tightening Grip of Authoritarianism Is Not Limited to Florida

by Neil H. Buchanan

Over the last several years, I have in varying contexts predicted that the US will soon no longer be a constitutional democracy, that we will witness the end of anything resembling the rule of law in this country, and that there seems precious little that we can do to stop any of that from happening.  The most dramatic and direct way for that to happen would have been for Donald Trump to have succeeded in his efforts to supplant the results of his 2020 loss.  At that point, there would no longer have been even the fig leaf of democratic legitimacy, and an unbound Trump would have been -- as he put it to his most devoted followers at a conference a few days ago -- "your retribution."  Meaning, of course, his retribution.

To my surprise and delight, that did not happen in 2020/21 (though only barely).  Even so, the evidence of creeping authoritarianism was all around us, and Republicans' rapid pivot from post-insurrection shock to denialism made it all seem less like creeping on tiptoe (though still creepy) and more like a brisk trot.  We are not yet at a full sprint, but it does seem that the Republicans' strides are getting longer and more confident -- much of it under the cover of culture-war craziness, but with a very consistent goal of establishing one-party rule in the US.

Here on Dorf on Law, I have been noting with some dismay that my current state of residence has seen itself become a laboratory of autocracy.  This includes the Republicans' negating of an extremely popular constitutional amendment that would have re-enfranchised over a million Floridians, the voter intimidation that that negation then allowed, the absurdly extreme gerrymandering that keeps them all in power, the punishing and threatening of private businesses for violating conservative orthodoxy, and too many other heavy-handed moves to list here.

Today, I want to pick up on a few loose ends of this discussion, mostly to add some thoughts and fill in some gaps.  I will then move outside of the boundaries of the Sunshine State, to show that the dictatorial fever is alive and well in other states -- even among Republicans who have otherwise done some unquestionably honorable things amid the recent chaos of American politics.  The trend lines are all moving in the wrong direction, and the slopes are all rising menacingly.

Two days ago, I wrote a column discussing what was arguably the least scary of the scary things that have come out of my state's capital recently: a proposed bill that would purport to require all bloggers -- everywhere -- to register with the state and provide information about any "compensated" blog posts that mention the governor, lieutenant governor, cabinet, or state legislators.  The consequences of not registering and reporting would be fines that could add up to $2500 per month.

Why is that plausibly on the un-scary end of the scariness continuum, even for someone like me, who spends a good deal of time writing columns that would displease the powers-that-be?  Simply because it is not a prohibition, and even if it were to apply to a very broad definition of compensation (along the lines that I discussed on Tuesday), so what?  Other than the annoyance of record-keeping and monthly submissions of the required information, there would seem to be no consequences for doing so.  After all, the entire point of blogging is to share one's thoughts with an audience (which is one of the main reasons that blogging platforms measure page views and that bloggers pay attention to those numbers), so it is not as if the state would be asking people like me to reveal private information the we were otherwise trying to keep hidden.  If the phrase "open and notorious" means anything, one might think that writing public commentary on-line would merit the description.

Of course, that is not the entire story.  As always, there is a difference between "known" and "knowable."  For example, even though it is surely possible to use publicly available information to piece together the steps necessary to build a weapon of mass destruction, it is entirely more concerning when that information is assembled and made readily available.  Note that I am not making an argument here about where to draw the line under the First Amendment regarding such information.  I am merely saying that the "same information" is different, depending on the form in which it is available.

So, even though it is already possible to use widely available technology to scrape the internet to find everything that has been written about, say, the Speaker of the House in Florida, it is nonetheless a big deal for the state to force the objects of potential future oppression and censorship to make the state's job easier.  The exercise itself is a constant reminder that the state is watching, and such knowledge cannot help but chill speech.  And again, it is hardly likely that this is where it would all stop.  "Tell us when you write about us, or else," is millimeters away from: "You'll be punished if we don't like what you write about us."

In Tuesday's column, I noted that the sponsor of the bill in question justified his proposal by likening bloggers to lobbyists: "Paid bloggers are lobbyists who write instead of talk. They both are professional electioneers. If lobbyists have to register and report, why shouldn’t paid bloggers?"  I described that as "a truly jaw-dropping analogy," and it is.  After all, the senator is arguing that blogging is "electioneering," which is supposedly the same thing as lobbying.  In this argument, electioneering must obviously include any effort to have an impact on the public political debate, not merely to change the outcome of elections themselves.  After all, he does not limit himself to requiring only those who write about Florida's elections to register, and in fact lobbyists spend most of their time trying to change laws, regulations, and policies.

But of course, this concept of electioneering is limitless, which means that anyone who writes anything about anything is, in the senator's mind, no different from a lobbyist.  A high school kid who wins an essay contest arguing that the state should not protect motorists who mow down protesters is apparently no different from a Gucci-clad operator who spends his time procuring prostitutes for politicians who agree to insert favorable provisions into a law.

All of which exposes where the analogy most obviously breaks down: transparency.  We try to limit the influence of lobbyists precisely because they prefer to operate behind closed doors, where they do not try to persuade with arguments that one would be willing to make in public debate but with words of self-dealing and subversion of the broader public good.  That the senator sees this merely as people who all "write" or "talk" about election-related things is telling.

Most telling of all is when the public-facing argument justifying a policy is comically bad, yet the policy is adopted nonetheless.  Consider, for example, the infamous "carried-interest loophole," by which private equity and hedge fund managers recharacterize the financial return on their labors as capital gains rather than regular income, thereby cutting their effective tax rates almost in half.  If ever there were a case of public discussion reaching a definitive conclusion about an obscure financial topic, this is it: the loophole is simply indefensible.  Yet when the Democrats tried at long last to repeal it last year, they reportedly had "no choice" but to drop it after Wall Street lobbyists had lavished attention on one particular rogue no-longer-Democratic senator.   Or, as CNBC's headline put it: "How Wall Street wooed Sen. Kyrsten Sinema and preserved its multibillion-dollar carried interest tax break."

I am hammering on this point because it is part of a larger picture in which Republicans are shedding any sense of restraint, in this case weakly justifying an attempt to suppress dissent and squelch criticism by saying that everything is writing or talking, and if we regulate some writing and talking, then we can regulate all writing and talking.  Honestly, people who had any sense that they could be held accountable for making baseless arguments would never consider saying anything like that in public.

Again, however, this is only one part of the story.  This past Sunday's episode of "Last Week Tonight with John Oliver" was almost entirely devoted to critiquing Florida's ambitious governor.  Although Oliver covered much of the territory -- very well, as he always does -- he notably did not even mention the attacks by the governor and his allies on higher education in the state (nor the proposal to register bloggers).  In part, that is because even Oliver's deep-dive analyses cannot go on forever, and the governor's record is so full of material for Oliver to analyze that it must have been difficult to edit that episode.

Still, it is more than a bit worrying that Oliver breezily referred to DeSantis's "landslide reelection as governor" without further comment -- even though the show later talked about some (but certainly not all) of the voter suppression moves that we have seen in Florida over the last few years, which were a big part of the reason that the election was not close.  Oliver also did not bother to point out that the Democratic candidate for governor in 2022 was a recycled former Republican governor who ran a non-campaign that was shocking in its ineptitude, nor that even the terminally uninspiring incumbent US Senator Marco Rubio won his reelection against a much stronger candidate by almost as much (16.4 percent margin versus 19.4 percent margin) as the governor won his.

Why does that matter?  If John Oliver accepts the narrative that DeSantis's success is somehow normal, even as he documents a small part of what is clearly not normal, he feeds into the idea that the policy moves in my state are mere proof that elections have consequences.  But when elections themselves have been fundamentally altered, "take your lumps and fight better next time" goes from helpful advice to damaging bromide.

As I pointed out in a column last summer, Florida's governor decided to fire a twice-duly-elected state prosecutor in Tampa's county for merely saying that he would choose not to prosecute an abortion-related crime if one were to arise in his jurisdiction.  So winning elections is not enough to stop the accelerating sprint toward autocracy, if the other side does not respect those election results.

And speaking of prosecutors, CNN reports that Georgia's Republican legislature is in the process of passing legislation that is nominally about requiring prosecutors not to use their discretion to refuse to charge people for some low-level offenses.  That would be bad enough, but the law just happens to include a provision that would create a commission with the "power to discipline, remove, and cause involuntary retirement of appointed or elected district attorneys or solicitors-general."

With the delicious irony that this is being sold as a way to prevent prosecutors from being "soft on crime," the commission would just happen to be given the power to remove Fulton County DA Fani Willis, just as she is set to make a decision about prosecuting Donald Trump for his interference in the 2020 election in Georgia (the infamous "find 11,780 votes" phone call).

Georgia's governor -- who, we should remember, gained office in a nail-biter in 2018 by acting in his then-capacity as Secretary of State to purge 340,000 people from voter rolls in his state -- was rightly lauded for standing up to Trump in 2020 and 2021, refusing to attack or try to overrule Brad Raffensperger, who was the recipient of Trump's call as Kemp's successor in the role of supervising the state's elections.  Kemp's lieutenant governor also just happens to be a target of Willis's probe.  Reporting indicates that Kemp will sign the bill.

As I wrote above, these are only a few additional elements of the story of America's constitutional decline.  But in the larger scheme of things, they are steps on the path away from the rule of law.

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