In 1924, King Camp Gillette—the inventor of the disposable razor blade—coauthored a book with Upton Sinclair, the progressive journalist famous for triggering the pure foods movement after publishing The Jungle, a muckraking account of the meat-packing industry. Sinclair was lending his writing talents to Gillette in the hopes of offering a more persuasive case for an idea that Gillette had been advocating since his first book, The Human Drift, published thirty years prior.
Gillette’s idea, which he formulated long before he founded his razor blade company, was to bring about a socialist utopia by means of a giant corporation. Their corporation would vertically integrate to control the production process from the point of extracting the raw materials to the distribution of the product to consumers, while ensuring equality of wealth and working conditions among its members. Essentially, the idea was that economies could more easily be centrally planned through the use of enormous corporations enjoying grants of monopoly privilege.
Murray Rothbard, however, disputed this idea in two ways. First, large corporations have the same problems as states when it comes to economic calculation. So corporations do not solve the problem of central planning. Rothbard also disputed Gillette’s vision of the corporation itself. Gillette employed a theory of the corporation—a theory later described more fully by Walter Lippmann in The Good Society—that corporations were government grants of privilege to enterprises that produced a public good. But Rothbard contended corporations were merely “free associations of individuals pooling their capital.”1 The divide between Lippmann and Rothbard, in fact, reflects the two prevailing theories of the corporation that guided nineteenth-century jurisprudence.
The legal realities of corporations have changed significantly over time. The apparent plausibility of Rothbard’s theory and Lippmann’s theory has changed over time as well.
After the American Revolution, individual states began chartering corporations at an historically unprecedented rate. The bulk of these charters were granted to transportation and finance companies (turnpikes, canals, banks, insurance, and eventually railroads). Over the first half of the nineteenth century, though, manufacturing and mining businesses also enjoyed wider access to the corporate form of organization. At this time, the prevailing theory of the corporation was Lippmann’s theory. The traditional idea was that to provide a public service, corporations need significant capital, and a grant of monopoly privilege ensures profit so that these corporations can attract the necessary investors. This is the “grant” theory of the corporation, reflecting the protectionist view of mercantilist economics.
At this time, corporations were seen as agents of the government. They were regulated through their charters, which legislatures had to approve through the same process used to pass legislation, and the charter could be revoked at any time. When John Marshall wrote the majority opinion for Dartmouth College v. Woodward in 1819, after the state tried to revoke the college’s original charter, which had been granted by George III, he ruled that corporate charters were contracts that, once granted, could not be altered or rescinded. Although he chipped away at the regulatory authority legislatures had over corporations chartered in their states, Marshall’s opinion gave a formal legal expression to the grant theory of the corporation.
Shortly after this ruling, a wave of democratic populism led to the expansion of suffrage. Voting rights were no longer tied to property ownership. Historians like to focus on the continued restriction of the franchise by the categories of race and gender, but this fails to appreciate how pathbreaking it was to abandon class as criterion for voting. The newfound political influence of a significant portion of the population led to the election of Andrew Jackson to the presidency (1829) and ushered in a wave of political reforms at both the state and federal levels of government.
The democratic mood of the Jacksonian majority brought attention to the issue of corporate privilege that the grant theory of the corporation embodied. The United States, by this time, had more corporations than any other country in the world (though it was not yet the dominant form of business organization), and the Jacksonians waged war against the monopoly privileges that state governments conferred upon these corporations.
The result was an underappreciated American innovation: the general incorporation law. The first such law for manufacturing enterprises was introduced in New York in 1811, but the Jacksonian movement ushered in a wave of general incorporation laws that continued through the century. Today, we take it for granted that to form a corporation we can simply fill out a document (you can now do this without even leaving your house, thanks to the internet). But in the 1820s, this idea was truly revolutionary. Instead of businessmen lobbying for corporate privileges, which predictably led to favoritism to protect government cronies and enrich politicians, people no longer needed the sanction of their legislatures to incorporate their businesses.
The spread of general incorporation laws was an uneven process, and the early statutes were highly restrictive. Over time, as states competed to attract businesses and prevent capital migration to other states, general incorporation laws expanded and liberalized. The Jacksonians also gave ideological fuel to these changes through their sustained criticism of monopoly privilege, ushering in the free-banking era through the extension of general incorporation laws to financial enterprises. By the mid-1870s, general incorporation laws were dramatically more liberal, standardized, and accessible than they had been fifty years prior. Many states had also amended their constitutions to prohibit special charters entirely, but even in the states that still granted special charters, general incorporation had become the most common process of establishing a business.
It was in this environment that the legal theory Rothbard espoused displaced the grant theory of corporations. The “association” or “partnership” theory held that, as Rothbard suggested, corporations were merely voluntary associations of investors pooling their capital. It was under this theory that the Supreme Court in Santa Clara County v. Southern Pacific Railroad, ruled that corporations are “persons” in the eyes of the law and are therefore protected by the Fourteenth Amendment. In this view of the corporation, which libertarians frequently agree with, the rights of the corporation are derived from the rights of the individual corporators. It is worth noting, however, that Southern Pacific was not a product of market competition; it was a nationally incorporated railroad that enjoyed special privileges and subsidies granted by the federal government.
This new doctrine helped facilitate the liberalization of corporation laws that eventually culminated in the New Jersey general incorporation laws of the 1880s, which gave legal sanction to holding companies—corporations that own stock in other corporations. This facilitated the budding merger movement, in which companies consolidated into trusts to regulate competition and stabilize prices (more specifically, to prevent prices from falling due to competition). But voluntary combination meant that corporations lacked any teeth to enforce anticompetitive agreements. So corporate leaders turned to the government in what was essentially an attempt to return to the mercantilist era of rent seeking, monopoly privilege, and strict regulation of trade.
When Adolf Berle and Gardiner Means published their landmark book, The Modern Corporation and Private Property, in 1933, they brought attention to the concerning growth in influence that corporate executives had. As they note, “the modern corporation…placed the wealth of innumerable individuals under the same central control.”2 Their study ushered in a wave of scholarship examining this problem, virtually all guided by the assumption that corporate leaders were essentially ideological libertarians whose personal interests naturally compelled them to oppose any government intervention in the economy, backed by the powerful influence of the capital from dispersed investors that they controlled.
This is often true in the case of smaller corporate entities. But when it comes to large corporate enterprises (i.e., “big business”) it appears that the old notions are winning when it comes to the view that large corporations are a sort of “public” entity.
The traditional narrative of this history is one of selfish businessmen lobbying against government regulation but ultimately facing defeat at the hands of the heroic Progressives, who were enemies of corporate wealth. But as Rothbard and a handful of revisionist historians such as Gabriel Kolko have noted, the reality was quite the opposite.3 Business leaders and Progressive reformers happily jumped into bed with each other. King Gillette, in his proposal for bringing about a socialist utopia through a monopoly corporation, reflects both sides of this partnership. Rather than being anticorporation, Progressives are better understood as “corporatists,” seeing the consolidated corporation as the answer to competitive capitalism and “selfish” individualism. Corporate leaders saw federal economic regulation as a mechanism to protect their position in the economy by reducing economic competition.
The first attempt to return to mercantilism was to pass a federal incorporation law, undermining the competition between states that decentralized governance encourages. Businessmen as prominent as John D. Rockefeller and James J. Hill supported the effort to pass a federal incorporation law. But when this law failed over disagreement about specific provisions, businessmen and Progressive activists turned to regulatory mechanisms such as the Federal Trade Commission (FTC). These efforts peaked during the New Deal, when President Roosevelt signed the National Industrial Recovery Act, which invited the heads of the largest companies in every industry to Washington to fix prices and write regulations that would be enforced against their small competitors.4 Although the Supreme Court overturned this law, the practice it introduced survived in various forms, as is evident today by the corporate presence in Washington, DC.
Historians have been remarkably complicit in perpetuating the myth of laissez-faire businessmen commanding the influence of stockholder capital to fight against government regulation. Kim Phillips-Fein, for example, in Invisible Hands: The Businessmen’s Crusade against the New Deal, tells the story of corporate executives working to overturn FDR’s policies. But the characters in her narrative consist almost entirely of pundits and intellectuals, such as William Buckley Jr., Ayn Rand, F.A. Hayek, and Ludwig von Mises (and her description of Mises’s writings as “political texts” suggests she never opened any of them).5 The myth of corporate libertarians vs. heroic Progressives persists, because left-wing academics and journalists never bother to test their assumptions against the evidence.
In reality, the concern over the concentrated influence of corporate special interests that Berle and Means articulated is valid, but not because corporate special interests will prevent economic regulation, but because they consistently agitate for it. Little has changed in the past century. Corporate executives continue to agitate for favorable regulations, contrary to the media narrative, as we see in Big Tech’s support of net neutrality and, most recently, calls from hedge fund managers for government intervention in the stock market after millions of small investors drove up the stock of GameStop. Patrick Newman recently posed the question, “Are we on the cusp of a new Progressive Era?” I would suggest that the Progressive Era never really ended.
A group of Republicans is calling for Speaker Nancy Pelosi (D-Calif.) to be fined after they say she failed to abide by newly implemented rules requiring members to go through metal detectors before entering the House chamber.
Republicans on the House Administration Committee sent a letter to Acting Sergeant-at-Arms Timothy Blodgett on Friday requesting the fine, arguing Pelosi should have to abide by the new rule that she pushed to implement.
“Yesterday, at approximately 9:59 am, multiple members observed the Speaker of the House entering the House Chamber without completing security screening,” the Republicans wrote on Friday.
“What was observed was a clear violation of House Resolution 73 and you are required by House Rules to impose this fine. Please inform us once the fine has been assessed,” they added. “We look forward to a prompt response to this inquiry.”
Blodgett responded by telling the members that he has not received a complaint from the Capitol Police about a violation by Pelosi.
“Only the USCP can determine whether an individual has failed to complete security screening as only the USCP has sufficient training to determine compliance with USCP screening procedures. I have directed that the USCP produce and provide unusual incident reports on any individual who fails to complete security screening without exception. I have not received any unusual incident report from the USCP concerning the Speaker of the House.”
Pelosi’s office referred The Hill to Blodgett’s response.
House Democrats voted this week to impose a $5,000 fine for first offense and $10,000 for the second for members who fail to comply with the new screenings.
The magnetometers were brought in by top Democrats last month in response to the deadly insurrection at the Capitol on Jan. 6 when a mob of former President Trump’s supporters attempted to prevent the certification of President Biden’s Electoral College victory.
Many Republicans criticized the move to install the metal detectors, arguing the threat was coming from outside the building – not members. Several GOP lawmakers opted not to abide by the new rule, leading Democrats to pass the measure implementing penalties for those who bypass the screening.
GOP Reps. Louie Gohmert (Texas) and Andrew Clyde (Ga.) were issued fines earlier Friday.
NOW IT’S STARTING TO STREAMROLL THE LEFT!
Dobbs was a staunch supporter of President Trump, and was recently named in the Smartmatic defamation lawsuit.
Fox News has canceled Lou Dobbs’ show on the Fox Business Network, Lou Dobbs Tonight, and will replace him with a group of rotating hosts.
Dobbs’ show, which has been on since 2011, has been the highest rated show on Fox Business, and had higher ratings than its competition on CNBC.
Dobbs was a staunch defender of President Trump. He was also among the defendants named in Smartmatic’s $2.7 billion defamation lawsuit filed this week against the Fox Corp. The suit also named Judge Jeanine Pirro, Maria Bartiromo, Sidney Powell and Rudy Giuliani. It alleges that they all spread lies that the company had been involved in rigging the outcome of the 2020 presidential election.
A Fox News spokesperson said of Dobbs’ cancellation, “As we said in October, Fox News Media regularly considers programming changes and plans have been in place to launch new formats as appropriate post-election, including on Fox Business – this is part of those planned changes. A new 5 p.m. program will be announced in the near future.”
According to the Los Angeles Times, which was first to report this story, Dobbs is unlikely to return to the network but at this time he is still under contract.
Philip Van Cleave, president of the Virginia Citizens Defense League, an active gun-rights advocacy group in the commonwealth, told the Washington Free Beacon that the group’s page suddenly disappeared on Tuesday without any note from the tech giant.
In a statement, Facebook acknowledged the removal, calling its decision final, but made no mention as to why the action was taken.
“This was correctly actioned and we will not be republishing,” Facebook spokeswoman Kristen Morea said. According to the Free Beacon, Morea “declined to elaborate on the decision.”
Facebook confirmed the action to The Blaze, noting that the page was removed and administrators were disabled for violating the company’s Community Standards. A Facebook “group” operated by VCDL remains active on the platform. Facebook added that its removal of the page came after employees re-reviewed their original action to remove violating content found on the page.
According to Van Cleave, the group reportedly used its Facebook page primarily to organize events and communicate with members about legislative initiatives, such as to raise awareness about Democratic Virginia Gov. Ralph Northam’s controversial 2020 gun control agenda and to mobilize efforts for “Lobby Day,” an annual pro-gun driving demonstration.
However, the group’s resistance efforts may have been interpreted much differently by some in the media. In a recent article published by the Guardian, VCDL appeared to be lumped into a large group of guns rights supporters that the news outlet said were “openly discussing violent resistance and civil war.”
In the article, VCDL was characterized as “a local pro-gun group that’s politically to the right of the National Rifle Association” that served as “the main driver” of the state’s the sanctuary movement. The movement pushes for local municipalities to act as sanctuaries for gun owners from national or state laws that are thought to impede upon citizens’ Second Amendment rights.
Van Cleave was quoted in the article as saying, “I’m telling you, people that have never committed a crime, that are law-abiding, and pay their taxes, do everything right, don’t even have a speeding ticket, are saying, ‘I’m not giving up my guns.'”
The no-explanation ban issued by Facebook against VCDL may foreshadow similar bans against other conservative organizations, Van Cleave told the Free Beacon.
“If they did this to us, it’s just a matter of time,” he said. “I think we’re a high-profile group and that’s why we got singled out. Those who aren’t as high profile as we are, I’m sure they’re on the chopping block next.”
Van Cleave claimed neither he nor the group ever advocated violence or were involved with protesting the 2020 election results.
[Note: In a 2009 article, Lew Rockwell lists the problems with government mandates on private use of mobile phones. Observant readers will note the “public safety” arguments against the freedom to use phones as we choose are essentially the same as current claims that “public health” is a justification for dictating daily habits and behavior. ]
We all want freedom for ourselves, but many people have doubts about the way others might use their own freedom. Under these conditions, the state is there to help. Get enough people to favor enough restriction, and the state is good to go, administering every aspect of life from its smallest to its largest detail.
Every day presents more cases, but the most recent case is stunning. It turns out that 97% of people polled support a universal ban on texting while driving. Half of those surveyed say that the penalty should be as severe as that for drunk driving. Among these, how many do you suppose do text and drive but don’t want to admit it to the pollster? Probably plenty. And yet I couldn’t find a single online defense of the practice anywhere on the web.
The truth is that it is not necessarily unsafe to text behind the wheel. It all depends on the situation. If you are in a traffic jam, and are late to an appointment, the ability to text can be a lifesaver. Or if there are no cars around, you might be able to risk it. On the other hand, it would probably be a mistake to attempt this doing 80 mph around slower traffic on a freeway.
How can we know the difference between when it is safe and when it is not? The principle applied on American roads is that the driver himself makes that decision. If this principle didn’t make sense, there would be no way that the roads themselves could work at all.
Think of this the next time you are in a big city zooming around curves and between lanes along with thousands of others, doing top speeds. Here we have 4,000-pound hunks of steel barreling down the road without aids other than a dotted yellow line on the road. These are real-life death machines in which one wrong move could cause a 100-car pileup and mass death. We do it anyway.
What’s remarkable is not that there are so many wrecks. The miracle is that it works at all and that, for the most part, people get to where they are going. And consider too the demographic behind the car: old, young, abled, disabled, experienced, inexperienced. Some people have a facility for driving and others do not. Some people have spatial agility and others do not.
How does it all work? Don’t tell me that it is due to central planning and the police. The police aren’t driving every car and controlling every wheel. Our human volition on the road and the decisions we make that affect other drivers are nearly 100% our own.
And yet it works. Why? The reason is that it is not in anyone’s interest to get in a crash. It is in everyone’s interest to get to where one is going in one piece and to do it efficiently. Roll together tens of thousands of people with the same broad goal and you get spontaneous cooperation. Something that people normally think could not work does in fact work. Looked at from that angle, the orderliness we see on the roads is a general expression of the capacity for human society to work in the context of self-interested individualism.
Now think of this poll showing a widespread opposition to texting while driving. I submit that you would get similar results from a poll that asked people about the right to drive:
Do you support or oppose the right of everyone to own 4,000-pound heaps of steel and control them completely and autonomously at top speeds in the midst of thousands of other citizens whose lives could be in danger with so much as a slight flick of the wrist to the right or left?
That question could elicit nearly 100% negative results. We generally trust our capacity to manage ourselves but we do not trust the capacity of others to manage themselves. And we surely don’t believe that society can generally function well under conditions of freedom. Even though we live in the midst of spontaneous order and use its brilliance every day (grocery store, the world wide web, restaurants, housing developments), we don’t really understand it.
Or how about this one:
Do you support the right of anyone over a certain age to buy and consume as much hard liquor as he wants, even to the point of drinking himself into a life-threatening stupor, neglecting the kids, wrecking family life, and killing brain cells that cannot be replaced?
Probably most people would say no. And yet this is precisely the reasoning behind Prohibition, which most people today regard as a terrible error. Today, we supposedly realize that the social cost of the right to drink hard liquor was greater than the supposed benefit we receive from enforcing Prohibition.
So it is with texting and driving. There are times when it is safe. There are times when it is not safe. The only ones who can really know the difference are the people behind the wheel. These people already enjoy the freedom to talk to passengers, to fiddle with their stereo, to drive following an exhausting jog, to drive while distracted with anxieties over work and marriage, to pray or sing in the car, and do many other things that seem like a distraction from the goal at hand. Somehow it all works, and there is a lesson here. You can count on more order to emerge from trusting freedom than you get from attempting to micromanage people’s lives.
Now, the libertarians among us might point out that these roads are publicly owned and that this is the core source of the problem. Under privately owned roads, there might be intense restrictions on what you can and cannot do and these might be part of the contract you make with the road owner.
The market would take care of the rest. If an owner were too restrictive, drivers would take other routes. If they are too lenient, their insurance premiums would rise and they would pay too high a price. The resultant rules of the road would be a result of this careful calibration, tested constantly by the forces of supply and demand.
Under the existing rules of private roads, we see no evidence of a crackdown on texting. Maybe it would come in the future, but at least there would be a market test. When a rule fails in private markets, the rule is changed.
But it is different with government. No matter how preposterous the rule, it stays and stays, regardless of whether it works to accomplish its end. And there can be no question that a crackdown on texting is coming. Obama has already banned texting while driving for federal workers. A bill that would deny federal funds to states is flying through the Senate. Look for a nationwide ban in the coming months.
The ban says, You don’t know what is good for you so you must be forced to do what the government thinks is good for you. The ban gets support because people generally think that while they are responsible and good at calibrating what is safe and unsafe, others are not. Through this method, all freedoms could be abolished.
It’s a bad way to form the rules of a society.
Docs Suggest Activity Logs of Incidents Overwritten
(Washington, DC) Judicial Watch announced today that it received 243 pages of records from the Department of Homeland Security (DHS) that show the Obama administration’s scanning the election systems of Georgia, Alaska, Oregon, Kentucky and West Virginia in 2016. This activity prompted a letter from then-Georgia Secretary of State (now Governor) Brian Kemp to then-DHS Secretary Jeh Johnson accusing DHS of, “an unsuccessful attempt to penetrate the Georgia Secretary of State’s firewall.”
The records were produced in response to Judicial Watch’s Freedom of Information Act (FOIA) request, which asked for all records related to reported cyberattacks against the Georgia secretary of state’s information network involving DHS, including investigative reports, memoranda, correspondence and communications between October 1, 2016, and February 14, 2017.
The minutes of a DHS “Enterprise Security Operations Center” (ESOC) meeting indicate that on November 15, 2016, at 8:43 a.m. a “scanning event” occurred. The “‘scanning’ event was the result of a FLETC [Federal Law Enforcement Training Center] user’s Microsoft Office Discovery Protocol sending a packet with the OPTIONS flag to the Secretary of State of Georgia site.”
The minutes notes that the Enterprise Security Operations Center “has received requests from NCCIC [DHS’s The National Cybersecurity and Communications Integration Center] and MS-ISAC [Multi-State Information Sharing and Analysis Center] to investigate other states that have seen ‘suspicious’ activity.”
The minutes note that Kemp accused DHS of conducting illicit scans on at least February 2, February 28 and May 23, 2016, as well.
DHS notes in the minutes that they were working with Microsoft to determine what happened: “Microsoft and the ESOC with the assistance of FLETC, were able to confirm that the user non-maliciously copied and pasted elements of the website to an excel document, which triggered the HTTP ‘OPTIONS’ request.”
A “Microsoft E-Mail Statement (Unofficial Statement to ESOC)” was included with the minutes. The email stated, “After looking at the data I do not see requests that look malicious in nature or appear to be attempting to exploit a vulnerability.”
A chart of “Current Open Vulnerabilities” for the period November 30, 2016, through December 12, 2016, noted that DHS had identified a total of 1,227 cyber vulnerabilities within DHS components, including five “High” severity ones at FEMA.
In a “Shift Pass Down Report – Sunday Night Shift – December 18, 2016” describing one of the State of Georgia incidents, DHS identifies that it originated, “from a FLETC-based Physical Security Contract Manager.”
DHS identifies activity originating from them in Alaska, Oregon, Kentucky and West Virginia.
In a “State of Alaska update,” the report notes, “Confirmed this activity was a NPPD [DHS’s National Protection and Programs Directorate] employee investigating twitter reports of compromise on an AK Election System, as part of his normal duties.”
A “State of Oregon update,” indicated that “Oregon Secretary of State inquired why they observed the same DHS IP reported by GASOS visiting their website. After engaging with DHS, Oregon agreed there was nothing suspicious and closed the investigation.”
A “State of Kentucky update” said, “Normal web traffic from DHS.”
A “State of West Virginia update” also said “Normal web traffic from DHS.”
In a December, 16, 2016, email exchange between DHS officials regarding a “Preliminary update on GASOS [Georgia Secretary of State]” an official notes there were at least 10 other “timestamps” in which “we have identified different components who have caused the same traffic as the FLETC user.” The log lists incidents involving FEMA, ICE-CIS and FLETC occurring between Feb. 2, 2016 and Sept. 12, 2016.
The email sender adds, “At this time, we cannot validate users with ease for these past timestamps due to DHCP and the lack of Authentication logs.”
Acting Principal Deputy Chief Information Officer, Jeanne Etzel replies to him, “When this gets published in the 4:00, don’t say ‘lack of logs’ say something about logs are maintained for xx days and the events in question occurred xx days ago therefore our logs are overwritten per our standard retention policy.”
Another official, unidentified, then forwards the exchange to unknown officials saying, “FYI. Please use the lens of Press Release and senior leaders.”
In a December 9, 2016, email, Director of DHS Cybersecurity Operations, Boyden Rohmer emailed an unidentified Chief of the Justice Security Operations Center at the Justice Department about “some claims by the State of Georgia that we’ve been scanning their website,” noting that when he pulled their logs over a three hour period, “we see that we have about 1800 similar requests.”
In an email exchange on December 8, 2016, sent to a DHS official, from a CBP CSOC [Customs and Border Protection/Cyber Security Operations Center] official indicated that the same CBP IP address that scanned the Georgia Secretary of State election systems also “previously was reported to us by Princess Cruise Lines” but “ESOC [DHS’s Enterprise Security Operations Center] assesses that the CBP computer was just doing normal web browsing to Princess Cruise Lines.”
The email continues, “ESOC assesses that the CBP computer was just doing normal browsing to Georgia’s Secretary of State office on Nov 15 as well.”
The CBP cyber security official then asks the DHS ESOC official for clarification of certain questions, such as “In both instances, who made this assessment that all of this activity was just ‘normal browsing’?” and “Please define ‘normal browsing’ as it is referenced in the text highlighted above.”
“The Obama DHS was caught scanning the Georgia Secretary of State’s website in 2016 and these documents show that details about the controversy may have been ‘overwritten,’” stated Judicial Watch President Tom Fitton.
In January 2017, the DHS Inspector General wrote to Kemp, saying that an investigation into his allegations was in progress and asking for web and network logs, as well as any other evidence that indicated the DHS attempted to breach Georgia’s system.
In July 2017, the DHS Inspector General reported to the House Committee on Oversight and Government Reform “that DHS employee interactions with the Georgia systems were limited to routine searches for publicly available information on the state’s public website and that none of the web pages visited were related to elections or voters.” And stated: “The investigation was conducted by employees in OIG’s specially trained Digital Forensics and Analysis Unit.”
Judicial Watch is a national leader for cleaner elections.
In September 2020, Judicial Watch released a study revealing that 353 U.S. counties had 1.8 million more registered voters than eligible voting-age citizens. In other words, the registration rates of those counties exceeded 100% of eligible voters. The study found eight states showing state-wide registration rates exceeding 100%: Alaska, Colorado, Maine, Maryland, Michigan, New Jersey, Rhode Island, and Vermont. The study collected the most recent registration data posted online by the states themselves. This data was then compared to the Census Bureau’s most recent five-year population estimates, gathered by the American Community Survey (ACS) from 2014 through 2018. ACS surveys are sent to 3.5 million addresses each month, and its five-year estimates are considered to be the most reliable estimates outside of the decennial census.
In 2018, the Supreme Court upheld a voter-roll cleanup program that resulted from a Judicial Watch settlement of a federal lawsuit with Ohio. California settled a federal lawsuit with Judicial Watch and last year began the process of removing up to 1.6 million inactive names from Los Angeles County’s voter rolls. Kentucky also began a cleanup of hundreds of thousands of old registrations last year after it entered into a consent decree to end another Judicial Watch lawsuit.
In 2020, Judicial Watch sued North Carolina, Pennsylvania, and Colorado for failing to clean their voter rolls, and sued Illinois for refusing to disclose voter roll data in violation of federal law. Judicial Watch has several open records requests pending over the conduct of the 2020 election.
joe biden vowed to put a “quick end” to the Trump administration’s Title IX regulations and return to Obama-era ones at universities. If this happens, the sexual misconduct hearings will be deeply impacted. These “trials” judge whether those accused of sexual misconduct are innocent or guilty. The Obama-era hearings expressed social justice standards that greatly favored an accuser; the Trump-era ones were closer to the Western tradition of due process. The hearings remain a major battleground in the culture war.
Universities are the wellspring of social justice and of the “warriors” who have carried the leftist ideology into the streets and every American institution. With the 2020 riots, the average person now appreciates the threat that social justice poses to traditional Western values such as due process. No compromise is possible between the two world views.
What is the heart of the conflict? Social justice rests on three dogmatic assertions. Gender and race define every individual; discrimination against oppressed races and genders defines America; all social inequality, such as pay differentials, is the result of systemic discrimination. Justice requires skewing society’s law and policies to favor “oppressed” groups in order to forcibly redistribute wealth, status, and opportunities to them from privileged ones—most notably white males. Traditional Western values are individualistic, not collectivistic; every person possesses the same human rights to the same degree, all of which spring from the fundamental right of those who are peaceful to live without interference. Individuals define their own character and are responsible for their actions. Justice means respecting everyone’s equal right to person and property and providing remedy when those rights are violated.
People now associate social justice with street-gang activism or shrill accusations of racism and sexual abuse. But many cultural changes that arrive on campus and flow inevitably into society do so quietly. They come from behind-the-door meetings and obscure organizations that forge policy, such as ATIXA (Association of Title IX Administrators) and Title IX campus compliance offices. These agencies are the bureaucracy of social justice, and ATIXA is a cautionary tale about what happens in the bureaucratic shadows. It is happening right now.
Under the Trump administration, Secretary of Education Betsy DeVos pushed back some of the most damaging aspects of social justice at universities. Campus sexual abuse hearings became a key cultural battleground with the Obama administration’s notorious 2011 “Dear Colleague” letter; it prioritized the rights of accusers by denying due process to those accused. It did not have the force of law, but it had the force of funding; schools that did not comply could lose their federal money, including student loans, upon which almost all universities depend.
The outcome was predictable. Kangaroo courts denied basic rights like the presumption of innocence to an accused; the accused were overwhelmingly male. On the basis of flimsy evidence and biased procedures, young men (and some women) were found guilty and confronted the destruction of their reputations, careers, and futures. Those who sued the universities frequently won or settled out of court. But the hearings rolled on. DeVos returned some basics of due process to the procedures, including the right of an accused to know the exact charges against him and to view the evidence—niceties that were often withheld.
Social justice advocates reacted with fury. In an article entitled “Betsy DeVos Restores Due Process, Dems Freak Out,” National Review described the reaction of Democrats. Catherine E. Lhamon, chairwoman of the US Commission on Civil Rights, warned that DeVos was “taking us back to the bad old days, when it was permissible to rape and sexually harass students with impunity.” In other words, due process was seen as a blank check for men to rape. (Lhamon has been tapped to serve as the deputy director of the Domestic Policy Council for Racial Justice and Equity in the biden administration.) The biden campaign platform itself stated, “The Trump Administration…is trying to shame and silence survivors” by giving “colleges a green light to ignore sexual violence and strip survivors of their civil rights.”
Now a woke regime has returned to campus justice. Whatever happens will offer a window into how mainstream justice may evolve in the coming years. And ATIXA offers a window into the dynamics.
ATIXA is influential. Indeed, it is currently drafting what may be the next Title IX bill. ATIXA is “a professional association for approximately 5,500 Title IX coordinators, investigators, and administrators,” (as of January 18, 2021). It has the mission of “helping to advance gender equity in schools and colleges”; since 2011, it has trained and certified “more than 7,250 Title IX Coordinators and more than 23,550 Title IX investigators.” ATIXA’s job might seem to be the facilitation of whatever laws and policies are on the books, but it adamantly resisted implementing DeVos’s changes.
The College Fix documented one example. DeVos required the training materials used by Title IX administrators to be posted. This allowed an accused to access the rules and procedures by which he would be tried. ATIXA president Brett A. Sokolow has a history of covertly resisting such regulations. In a January 15, 2020, op-ed for Inside Higher Education, he advised: “About 20 to 25 percent of the (new Title IX) regulations are potentially very detrimental…and we will need…to work within those requirements, challenge them in court or find clever work-arounds” (emphasis added). Sokolow tried to work around posting training materials by claiming they were copyrighted and not able to be shared. The College Fix’s interpretation: “ATIXA will sue colleges for following a legally binding regulation.” Sokolow backed down, however, when the Department of Education’s Office of Civil Rights (OCR) noticed and doubled down on its demand.
Passive-aggressive obstruction is no longer necessary. A memorandum to ATIXA listserv members in early January 2021 commented, “Dear Members….The Senate will now be in Democrat control.” A lobbying firm was duly engaged, as Sokolow now considers new Title IX legislation to be “a realistic possibility”; it is an endeavor in which ATIXA wants to take a leadership role. “Our initial thoughts include the promulgation of a model Title IX Restoration Act (TIXRA, naturally),” he writes, to show “how Title IX should be reshaped by the biden administration and Congress to best serve the field and the goals of sex/gender equity.” (Sex/gender equity is not clearly defined.)
Sokolow’s memo gives lip service to “due process”—a term that appears with scare quotes around it. Elsewhere, a poll of “ATIXA Title IX experts” offers a more concrete sense of the looming danger to due process. JD Supra reported on the poll in an article by Sokolow entitled “biden Is President-Elect. Can We Just Ignore the Title IX Regulations Now?“ The new woke hearings should include:
In short, the woke campus hearings would discourage direct cross-examination, allow hearsay, loosen rules of evidence, be conducted quickly, and bypass the need for a formal complaint…the denial of due process would be policy. This despite the fact that, as Sokolow stated in a phone interview, “Probably 40 or 50% of allegations of sexual assault are baseless. There are a lot of cases where someone says they were incapacitated, but the evidence doesn’t support that they weren’t able to make a decision.” A “model” Title IX bill is currently being drafted by ATIXA and will be circulated the “to Congress and biden Administration.” An earlier draft entitled “ATIXA Submission to the ED ART on Title IX 12.18.2020” that was submitted to biden’s education transition team hints at the content. The hints are confusing, however. The bill endorses biden’s progressive approach while stating, “a return to…the 2011 DCL (Dear Colleague Letter) or maintaining the status quo of the 2020 regulations would not be supported by ATIXA’s 6,000 practitioner members.” In short, there is pushback from the membership. Also, a mountain of complaints and lawsuits have proven expensive in time and money.
Therefore “ATIXA seeks a balanced approach that honors the rights of all parties in the Title IX resolution process.” So far, so good. The same hearing standards would seem to apply to all participants regardless of gender or race. Yet, elsewhere, the submission commits to “focusing broadly on the impacts that Title IX work can and should have on the LGBTQIA+ community [and] on people of color.” There is a tension between the two statements.
Moreover, an accused’s due process rights are directly attacked. The right of cross-examination, for example, would be restricted to spare an accuser distress; “if cross-examination is required in a jurisdiction [where the campus is located], it is sufficient to have party-proposed questions submitted to and then posed by the neutral, impartial decision-maker,” presumably appointed by the university. The right of direct examination by the accused or his advocate would be denied. (Nothing is said about jurisdictions in which courts do not require the cross-examination.) Currently, if a witness refuses to submit to cross-examination, his or her statements during the investigation are not considered at the hearing. ATIXA wants this rule to be “revisited,” because “it’s too drastic, is too complicated for laypersons to apply, has no litigation equivalent, and takes away the discretion of the recipient to appropriately assess relevance and credibility.” Why “laypersons” are holding court-like hearings when the basics of due process and court procedure are too complicated for them to understand is not addressed.
Elsewhere, the clarity of ATIXA’s recommendations is chilling. For example, “ATIXA supports universal application of the preponderance of the evidence standard….Existing regulations permit a choice of standards.” Preponderance of the evidence means that if a hearing believes a rape complaint to be supported by 50.01 percent of the evidence, the accused is “guilty” and open to expulsion or other common punishments.
All in all, a prediction in the JD Supra article seems half correct. “If we had to prognosticate, we’d guess that fairly early on, the biden administration will rescind the 2020 regulations, and implement another new Dear Colleague Letter/Q&A style approach.” BUT the new Title IX is likely to be a new Obama-style DCL approach that is tweaked to avoid the legal pitfalls visited on the 2011 one. I disagree; withdrawing the 2020 regulations will not be a quick process.
The DeVos administration did not use a DCL or other guidelines to impose its regulations. It went through the arduous Administrative Procedure Act notice-and-comment process, which is why it was not enacted until 2020; the process and obstructionist tactics made it take that long. To rescind DeVos’s regulations requires the same long slog through bureaucracy and Congress. This alone makes new regulations unlikely before 2022 at the earliest.
ATIXA and Title IX may seem arcane to those not on campus or without a loved one who is. But the incredible bias and injustice embedded in earlier sexual misconduct hearings was integral in promoting a social division that borders on hatred. Close attention must be paid to the social justice measures on campuses, because they are part of the ideology promoting street riots, increased violence and hostility between groups. College administrators and professors have actively stoked hatred between the genders and the races for decades. And now society reaps a whirlwind.
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on 6.February.2021.