This Is Extremely Dangerous to Our Democracy

I have to admit, this was an unsurprising couple weeks in the news. Trump still knows nothing about anything (seriously, what the hell, man?), Mueller is still investigating, another White House official resigned, the Stormy Daniels case is still simmering...

Oh? What's this? A viral video about a media monopoly? Well this is something you don't see every day.

Please watch this video. It's... a little scary. Though, in case you don't have the time or means to watch it, here's a quick summary:

The video shows a collection of local news stations running the same story. Dozens of anchors are reading from the same script. What's the story about? Fake news. The Trump kind. And, to top it all off, the script ends with the wonderfully ironic line, "This is extremely dangerous to our democracy."

(As a side note, kudos to whoever edited this. It's amazingly well done.)

So who's behind these scripted segments? Just how common are they? And what kinds of dangers do they pose?

Let's start with the who. All of the local stations shown in the video are owned by a company called Sinclair Broadcast Group. Founded in 1986 by Julian Sinclair Smith and his sons, the company has since grown into one of the country's largest media conglomerates. As per its website, it owns "193 television stations and 614 channels in 89 US markets." The Washington Post reports that among those stations are "59 Fox affiliates, 41 ABC affiliates, 30 CBS affiliates, 25 NBC affiliates, nine Univision affiliates and others." Just to give you a sense of scale, that's enough stations to reach almost 40% of all households in America.

And what does Sinclair do with all of those stations? Well, you just watched it in the video above. According to NPR, every single one of Sinclair's 193 stations had to have a news anchor recite that script about "false news."

Okay, so let's give them the benefit of the doubt. Who knows, maybe they just really care about quality reporting. Unfortunately, that theory lasts as long as a cursory Google search. Among Sinclair's "must-air" segments are a show called Bottom Line hosted by Trump campaign surrogate Boris Epshteyn, a speech by the company's vice president accusing the national media of being "fake news," and, most egregiously, a daily "Terrorism Alert Desk." That last one frequently runs poorly sourced stories, and it is exclusively focused on radical Islamic terrorism. It's hard to find raw clips on YouTube, but a recent Last Week Tonight included some of the more absurd stories: link here.

So, okay, okay, they run some pretty conservative, and sometimes outright false, segments. That doesn't prove that they have a purely conservative bent. What does prove it is that, according to the Washington Post, "all of Sinclair’s nationally-syndicated commentators espouse a conservative perspective on the news." Epshteyn was already mentioned. The others are: Mark Hyman, a company executive and frequent contributor to conservative magazines; Sharyl Attkinson, an investigative reporter who recently published a book calling reports on Russian hackers and Donald Trump's racism and misogyny "fake news;" and Armstrong Williams, who claims to be "one of the most recognizable conservative voices in America."

By now it should be pretty clear that Sinclair and its must-air segments are conservative and, more than that, Trumpian. Why does this matter? After all, companies are allowed to be conservative. Well, it matters for two reasons: journalistic integrity and regulatory capture.

 The first reason should be pretty clear: Sinclair controls enough of the local news market that airing biased, poorly sourced, or downright false segments can significantly affect the public's view. This effect is twofold: the section of the public that believes Sinclair becomes less informed, while the section that does not believe it loses trust in the news media as a whole. And, as Sinclair is so eager to remind us, having a misinformed, untrusting public is "extremely dangerous to our democracy."

The second reason requires a little bit of explanation and a little bit of backstory. To start off, I'll go over what regulatory capture is, and how it applies in this situation.

Regulatory capture occurs when a private company or group of companies gain control of the government body that is tasked with regulating those companies. For example, when the EPA first investigated fracking in the early 2000s, its report claimed that the process had no adverse effects on the surrounding drinking water. This was, of course, untrue, and it was revealed that a number of the employees responsible for the report had clear conflicts of interest. In other words, members of the natural gas industry "captured" those employees.

And now, the backstory for Sinclair. Remember how I said that Sinclair broadcasts to about 40% of American households? Well, in May of last year, Sinclair announced that it planned to buy Tribune Media in a massive merger that would increase its reach from 40% to 70% of households.

"But wait!" you say, "That's practically a monopoly on local news! Those are illegal!" And you would be right - or rather, you would have been right, up until just a few weeks before the deal was announced. That was when the FCC, with Ajit Pai at its helm, changed the rules regarding TV station ownership to allow for a deal like Sinclair's. The New York Times covers the whole story, as well as the investigation into potential regulatory capture, here.

But what is Ajit Pai getting out of this? And for that matter, why is Trump so supportive of the company? Well, they get a Trumpian voice on the news in the majority of households in America. Increased public support for conservative positions like the repeal of net neutrality. In a word, propaganda. That may sound a bit extreme, but if this deal goes through, Sinclair will pretty much tick all the boxes: it'll be a pervasive and largely unnoticed distributor of often outright false information, intentionally allying itself with the executive branch, and able to broadcast into the majority of homes in the country with the express permission of said executive branch.

Once more, all together now: this is extremely dangerous to our democracy.

Well, He Does Say "You're Fired" a Lot...

I just really like this picture of Mueller. It's like he's silently judging you.
Source: fbi.gov (archived)

So, Donald Trump doesn't seem to like Special Counsel Robert Mueller very much. For the past few days, he's has been more critical than usual of the Special Counsel's investigation into Russian interference and the Trump campaign's potential collusion. This has reinvigorated fears that Mueller might be fired. But can Trump actually fire him? And what happens if he does? That's what I'll try to answer today.

First, we have to understand exactly what a Special Counsel is, and how one is appointed. A Special Counsel is a kind of special prosecutor; in other words, an independent investigator appointed because the person or body who would normally handle the investigation (in this case, the Department of Justice) has a significant conflict of interest. Mueller operates out of the Department of Justice's Office of Special Counsel, and the order establishing his investigation is handily linked on its webpage. Deputy Attorney General Rod Rosenstein, who issued this order, was nice enough to mention the applicable section of US regulations: US Code of Federal Regulations, Title 28, Chapter VI, Part 600. These regulations, in fact, govern nearly every facet of the Special Counsel, and I will be citing them throughout.

Section 600.1 specifies two criteria for the appointment of a Special Counsel: first, that "investigation or prosecution... would present a conflict of interest for the Department [of Justice]," and second, that "it would  be  in  the  public  interest  to  appoint an outside Special Counsel." This is why Special Counsels are so often appointed to investigate presidents; the Attorney General would have a clear conflict of interest if they had to investigate their own boss. And, in this case, the second requirement is easily fulfilled by the need to both protect our democratic institutions from Russian meddling and settle the controversy surrounding the Trump campaign's potential crimes.

Now that we know what a Special Counsel is, we can find out how one is fired. This information isn't too hard to locate; section 600.7 lays it out pretty clearly. Only the Attorney General or acting Attorney General can fire the Special Counsel, and "good cause" is required for the firing. Rosenstein doesn't see any good cause for Mueller's removal; earlier this month, he said, "I don't believe there is any justification at this point for terminating the special counsel."

Of course, Trump could just fire Rosenstein, and he has the power to choose a different Department of Justice senior official to act as Deputy Attorney General under the Federal Vacancies Reform Act. He could, in theory, just keep firing people until he found one willing to fire Mueller. A lot of you probably recognize this strategy: it's the one Nixon used in his infamous Saturday Night Massacre. It didn't work well then, and I don't think it would work well now. Why? The way I see it, there are four reasons.

First is the fact that getting rid of Mueller does not get rid of the investigation. There is still a Senate Intelligence Committee investigation underway, which was, according to Reuters, "not close to ending" in January. And if Mueller is fired, then Congress still has the authority to appoint a new special prosecutor. Of course, this hinges on Republicns in Congress prioritizing the investigation over Trump, which isn't exactly a foregone conclusion, especially considering that the House Intelligence Committee just closed their own scandal-ridden investigation in a party-line vote.

Second is the potential for obstruction of justice. If Trump takes actions to get rid of Mueller, and Mueller was investigating him, that's pretty clear-cut obstruction of justice, right? Well, it's not quite that simple. Trump would need to be taking those actions with corrupt intent; in other words, he would need to actually be trying to cover up a crime.

The information we have now isn't enough to prove that; for as desparate, disingenuous, and, frankly, just damn annoying his tweets of "WITCH HUNT" are, all they really tell us is that he thinks the Mueller investigation is baseless. If it really is baseless, then he didn't commit any obstruction. Hooray for him. But if this or any future investigation shows that there was collusion, then firing Mueller would be a pretty clear-cut case of obstruction.

Third is the optics. Even if Trump suffers no legal consequences, even if he really is innocent and the probe really was just a witch hunt, firing the person investigating you just isn't a good look. When Trump fired Comey, it made me eagerly await a CSpan broadcast for the first time in my life, and if that could do that, then this could do almost anything. Already, the Washington Post reports that hundreds of thousands of people have signed up online to protest across the country should Mueller be fired.

And fourth is the potential for leaks. Mueller is running an extremely tight ship with his investigation; many of the announcements that came out of it, from the indictment of Manafort and Gates to Papadopoulos' guilty plea, caught both myself and the press entirely by surprise. Should Mueller be fired, the investigators who worked with him would no longer have any disincentive for leaking information to the media; in such a case, we might get to hear of some of the more salacious findings of the investigation.

Of course, if Trump really is innocent, he only has to worry about the hit to his image. But if that were the case, he also shouldn't be worried about Mueller, who is by every measure extremely professional. And if he's guilty, then he's pretty much screwed either way. So if you ask me, Trump shouldn't fire Mueller.

So what will Trump actually do?

I don't know.

Nobody knows.

He's Trump.

He doesn't make any sense.

Thanks for reading.

The Classifieds

Source: Wikimedia Commons

Earlier this week, Jared Kushner's security clearance was downgraded from top secret to secret. What, exactly, does that mean?

First, we must understand how the United States' security clearance system works.

The current system by which the United States government classifies information is stated in Executive Order 13526. It was signed on December 29, 2009, by Barack Obama. It should be noted that this executive order did not establish our classification system, but is instead the latest in a series of executive orders, each of which has modified the system slightly. The system was originally established by Bill Clinton in 1995 through Executive Order 12958.

The system laid out in Executive Orders 12958 and 13526 uses three levels of classification: confidential, secret, and top secret. Information is categorized into these levels based on how dangerous it would be if released. Confidential information only causes "damage to the national security," whereas secret and top secret information cause "serious damage" and "grave damage," respectively.

There is one additional category of classified information: Sensitive Compartmented Information (SCI). This category is entirely outside of the system described previously; instead of being established by executive order, it was established by the Director of National Intelligence (DNI). In addition, clearance is only given out for certain "compartments" of information, rather than the entire designation. More details can be found in the DNI Classification Guide.

For the purposes of this blog post, I'll only be focusing on the classified information established by executive order. Here are a few key features of this information:

• Only the President, Vice President, appointed agency heads, and specifically delegated government officials may classify, reclassify, or declassify information.
• Having security clearance for one classification automatically grants security clearance for all lower classifications.
• Higher security clearances require more stringent background checks.
• A security clearance does not guarantee access to information; the person requesting the information must have a valid reason for the request.

This is by no means a comprehensive rundown of the security clearance process in America; instead, these are all of parts of the system relevant to Jared Kushner. Why did Jared Kushner, whose only qualification seems to be being the president's son-in-law, have top-secret security clearance? What was his reason for even requesting such information?

Well, Kushner is a senior adviser to the President, and in this role he had been placed in charge of a laughably long and varied list of jobs:

• Achieving peace in the Middle East
• Dealing with the Opioid Crisis
• Enacting criminal justice reform
• Being a liaison to Mexico, China, and the Muslim community

Of course, Kushner isn't really doing any of these things - he's an investor, not a policy expert - but I suppose that his responsibilities were deemed far-reaching enough that he needed access to our nation's most guarded secrets.

So why did Kushner have his clearance downgraded? If any of you have read any of the news surrounding Kushner's downgrade, then you may have noticed that it's not just Kushner; dozens of White House aides are having their security clearances downgraded in a similar fashion. That's because none of these aides, Kushner included, actually had security clearances; instead, they all had interim security clearances.

There's nothing nefarious about interim security clearances. They're just security clearances granted before the sometimes lengthy background check process is complete. But in the case of the White House, not only were all of these aides operating on interim security clearances, but, according to the memo John Kelly wrote detailing the changes, they had all been operating on these interim security clearances since at least last June.

Last June?! That's more than a year and a half ago! Even the longest background checks don't last much more than a year and a half, and even if they did for one aide, the chances of them lasting that long for dozens are astronomically small. Why haven't these aides been granted proper security clearances yet?

Because some of them are Rob Porter.

Rob Porter was the White House Staff Secretary until resigning on February 7th over allegations of domestic violence. Here's an op-ed written by one of his victims for the Washington Post (warning: mildly graphic images).

Soon after his resignation, it was revealed that, like Jared Kushner and dozens of other aides, Porter had been using an interim security clearance for over a year. It was also revealed that the FBI informed the White House of the allegations against Porter, and that the administration did nothing in response. All of this is summarized rather nicely in this Washington Post article.

Based on these allegations alone, Rob Porter would not pass a background check. And Jared Kushner's suspicious business dealings cast doubt on the possibility that he would, either. It's unknown how many other aides have similar stories, but it's clear that they were not properly vetted for top secret security clearance.

So what can Jared Kushner do now? Well, not much, actually. He could try to appeal to his father-in-law; the President does have ultimate control over classified information. But Trump has indicated that he will not interfere with Kelly's changes. At this point, if Kushner wants top secret clearance back, the only thing he can do is wait it out and hope that he passes his background check.

Have you tried turning it off and on again?

Source: Juan Ignacio Sánchez Lara

Nowadays it seems like our government just cannot keep its doors open.

February 8th marks the last day that the continuing resolution to fund the government (passed on January 22nd) applies. If Congress cannot pass a spending bill, or Trump does not sign it, then our government will shut down yet again. But what are government shutdowns? Why do they occur? And what do the President and Congress hope to accomplish by shutting down the government?

Government shutdowns are a relatively recent phenomenon; the first was in 1976. This is not due to any political changes, but rather because that was the first year that the government operated under the modern budget rules, as stated in the Congressional Budget Act of 1974.

The budget process, as outlined in the aforementioned law, is as follows:

1. The President, with the help of the Office of Management and Budget, formulates a budget and submits it to Congress.
2. The budget committees in the House and Senate submit budget resolutions, which are then passed by the two houses; this stage does not require the President's approval.
3. Congress uses the budget resolution as a road map for funding bills, which can be vetoed.

The last step is where funding is actually approved, and it is where shutdowns happen. If Congress fails to pass a funding bill, or the President vetoes it, then a section of the government, or the entire thing, goes unfunded. If this funding gap extends into business hours, then nonessential federal employees are furloughed (meaning that they do not go to work).

It should be noted that a failure to pass a funding bill does not necessarily result in a major government shutdown, in which departments close and employees are furloughed for large amounts of time; the Washington Post published a list of every previous funding gap, starting with a budgetary dispute under Gerald Ford in 1976, and it is considerably longer than Reuters' list of those that actually resulted in significant effects.

It should also be noted that there are two distinct types of funding bills: appropriations bills, which last for an entire fiscal year, and continuing resolutions, which are continuations of the previous budget that serve as stopgaps if an appropriations bill is not passed in time. A shutdown only occurs if neither of these are passed.

So why did the government shut down in January, and why might it shut down again? There are four core issues:

1. CHIP is a successful, widely supported children's healthcare program that covers about 9 million children. It actually ran out of funding at the end of September, but lawmakers failed to agree on a deal to fund it. CHIP funding was a major talking point in the January shutdown, with everyone pointing fingers at everyone else for the failure.
2. DACA is a program created by Obama through executive order that allowed children whose parents brought them into the United States illegally. The program was terminated by Trump in September, but a six-month delay was implemented so that Congress could figure out what to do with the 700,000 people who now face deportation (called Dreamers). Most Democratic lawmakers, as well as an unknown number of Republican lawmakers, support clemency for the Dreamers, but Republican leadership, and especially Trump, are opposed to this.
3. Trump's Wall is the $25 billion project promised by Trump on the campaign trail. Most lawmakers are opposed to it, and it will almost certainly not be funded, but Trump has threatened to shut down the government if it is not funded. (Wait, isn't Mexico supposed to be paying for this thing?)
4. The Debt Ceiling is the cap on how much debt the United States can incur. It will have to be raised if the United States wants to avoid the disastrous effects of a default, especially in light of the recent tax cuts, but such an increase is opposed by Tea Party Republicans in the House.

The January shutdown ended with a continuing resolution that directly dealt with only one of these issues: it reauthorized CHIP's funding for the next six years. The only other issue involved was DACA; Senate Minority Leader Chuck Schumer only agreed to end the shutdown after Senate Majority Leader Mitch McConnell promised to bring a bill to the Senate floor that would grant clemency to DACA recipients, though it is unclear if such a bill would pass.

So that brings us to today.

In the Senate, things are going as planned: McConnell and Schumer reached a deal that funds the government for two years, increasing spending and the debt ceiling. It does not include funding for Trump's wall.

The House is more interesting. Minority Leader Nancy Pelosi received no promises on a DACA bill from Speaker Paul Ryan, and so took to the House floor for eight hours, reading letters sent to her by Dreamers in the second-longest House speech ever. Ryan supports the deal that passed the Senate, but, due to the Tea Party Republicans who oppose the debt ceiling increase, he needs the support of House Democrats to pass it.

At this point, the spending bill hinges on Ryan. If he promises debate and a vote on a DACA bill to Pelosi, the spending bill will probably pass the House without a hitch. However, if he refuses to budge on DACA, then we will almost certainly face another shutdown. If I had to guess, Ryan will choose the first option, wanting to avoid the negative optics brought on by a shutdown.

And then there's Trump. Trump might veto this bill. Or he might not. I really don't know if he will; he tends to just say things like "I would shut it down over this issue" without really thinking. Hopefully he doesn't; it's been arduous enough reaching a 60-vote deal in the Senate, and it would be even more arduous to reach the 67 votes needed to overcome a veto.

I suppose we'll find out soon enough.

Spaghetti Districts

Source: Wikimedia Commons

Just a few days ago, Reuters reported that the Pennsylvania Supreme Court ordered the Pennsylvania legislature to redraw the districts (pictured above) used when electing members of the US House of Representatives. The court ruled that the shape of the districts gave an unfair partisan advantage to Republicans, in violation of the state constitution. In order to attain this advantage, Pennsylvania Republicans created districts with contorted, nonsensical shapes; district 7, in particular, was ridiculed for resembling "Goofy kicking Donald Duck."

The process of drawing legislative districts to give a group of people more or less voting power is called gerrymandering; when the groups are political parties, it is partisan gerrymandering. It isn’t a new practice; gerrymandering has been around for centuries. The term has its origins all the way back in 1812; its peculiar name is a portmanteau of “Gerry” (Massachusetts’ governor at the time) and “salamander” (the shape of the district he was associated with).

But recently, partisan gerrymandering has become both more prominent and more one-sided. When Republicans controlled a plurality of state legislatures after the 2010 elections, the practice transformed from a blemish on our democracy to a massive hole in it.

A project called the Redistricting Majority Project (REDMAP for short) was launched by the Republican State Leadership Committee (RSLP), the organization responsible for coordinating state-level Republican party actions, with the goal of creating “20-25 new Republican Congressional Districts through the redistricting process... solidifying a Republican House majority.” REDMAP was by far the most advanced and most coordinated gerrymandering effort in American history.

And this wasn’t done behind closed doors, with hushed voices; the above quote comes from the second paragraph on REDMAP’s website, a bombastic, red-white-and-blue affair, complete with a shining American flag in the background. Later on, the website even boasts of “a 33-seat [Republican] margin in the U.S. House” despite “over one million more votes cast for Democratic House candidates than Republicans.” Frankly, the brazen defiance of democracy it displays is sickening.

So if gerrymandering is such a terrible thing, and if it keeps getting struck down by courts, why is the RSLC, one of the most prominent national Republican groups, rubbing its partisan intentions in our faces?

Because partisan gerrymandering isn’t actually illegal.

Well, not yet, anyway. As of now, the prevailing opinion of the US Supreme Court, in the 2004 case Vieth v. Jubelirer, holds that “political gerrymandering claims are nonjusticiable because no judicially discernible and manageable standards for adjudicating such claims exist.” Basically, there is no metric that can measure partisan gerrymandering in such a way that the US Constitution would forbid it.

This ruling overturned the previous 1986 opinion in Davis v. Bandemer, in which the court, while upholding gerrymandered districts, ruled that such a case would be justiciable if a reliable way were found to measure gerrymandering.

If you’ve been following the news recently, you may have read that the Supreme Court is hearing another case involving partisan gerrymandering, this time in Wisconsin. What’s different this time around? Since their 2004 ruling, a new measure of gerrymandering has been proposed: the efficiency gap.

The efficiency gap is a percentage calculated by measuring the “wasted votes” (votes that do not contribute to a winning candidate) of each party, taking the difference, and dividing that difference by the total votes cast. It provides a quantifiable measure of partisan gerrymandering, and can be easily applied and understood (for the source of this math, as well as more discussion of the efficiency gap, see this New York Times article).

Whether the efficiency gap is a sufficiently rigorous measure for the Supreme Court is still to be determined. If it is, it’s a big win for voting rights groups and the Democratic party; if not, then federal partisan gerrymandering cases are moot until the Supreme Court has a different ideological makeup.

Full disclosure: I am not a lawyer. Do not trust me. But if you asked me, I would guess that this Supreme Court case isn’t going to change a thing. The language of Vieth v. Jubilier seems to imply that any mathematical standard would need universal acceptance and a complete lack of ambiguity, two things that are practically impossible.

So the most likely outcome is that we’re stuck with the rampant gerrymandering brought on by REDMAP. And unless the Democratic party can win a lot of state legislatures in 2020, the problem will only get worse, as computational gerrymandering tools become more effective. Already, a citizenship question has been proposed for the 2020 census, a move which could shift apportionment power evenfurther towards Republican states.

And legislative solutions? Forget it. As long as Republicans secure at least 41 votes against such a bill in the US Senate, they can filibuster any law that might forbid gerrymandering (and that’s assuming every Democratic senator votes for the bill). Constitutional amendments, requiring three quarters of the state legislatures to agree, are even further out of the question.

Ultimately, gerrymandering is, in my opinion, one of the most obvious flaws in our system of government. It's a simple case of those in power making the rules to keep themselves in power. But, unless the Supreme Court deems it unconstitutional, it's a problem that's probably here to stay for decades. As of now, the only recourse is state courts and constitutions, as was the case in Pennsylvania.