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Electile Dysfunction—Why Can’t the Dems Get Their Polls Up?
The Democratic Party cannot afford to attend to the material needs of its traditional popular base because it is terrified of offending its donor class.
May 27, 2026
“The Republicans go for the jugular; the Democrats go for the capillaries,”—Kevin Phillips
With the recent release of the long-withheld, but little anticipated Democratic National Committee “autopsy” of the 2024 presidential electoral loss, we’re back to the perennial questions of which issues should receive priority; how should messaging and narrative around those issues be crafted; which wing(s) of the party should be amputated before their rot infects the entire organism, suburban soccer moms or inner city youth; and on and on. All good questions, but ultimately, in present circumstances, unanswerable except in the most platitudinous, hand-waving ways. The most fundamental dilemma resides in the Faustian bargain the party entered beginning in the 1970s, and the result of that bargain is neatly captured in Sheldon Wolin’s 2010 coinage “the inauthentic opposition”:
While the transformed Republican Party reveals what a “party of government” might look like under inverted totalitarianism, the Democrats reveal the fate of opposition politics under inverted totalitarianism. The Democrats’ politics might be described as inauthentic opposition in the era of Superpower [i.e., the US after the fall of the Soviet Union]. Having fended off its reformist elements and disclaimed the label of liberal, it is trapped by new rules of the game which dictate that a party exists to win elections rather than to promote a vision of the good society… Accordingly, the party competes for an apolitical segment of the electorate, “the undecided,” and puzzles how best to woo religious zealots. Should Democrats somehow be elected, corporate sponsors make it politically impossible for the new officeholders to alter significantly the direction of society. [This point is exquisitely exemplified by the first couple of years of the Obama administration, when they held the federal trifecta and still managed to privilege the kleptocratic banksters of the housing crisis and the war criminal gangsters of the W. Bush regime.] The timidity of a Democratic Party mesmerized by centrist precepts points to the crucial fact that, for the poor, minorities, the working class, anticorporatists, pro-environmentalists, and anti-imperialists, there is no opposition party working actively on their behalf.
The origins of this current malaise date back to the mid 1970s, and followed the actions taken by business class elites responding to the exhortations contained in the now-famous Powell Memorandum. This was a secret 1971 memo from then-corporate lawyer Lewis Powell to the Secretary of the US Chamber of Commerce. The memo wasn’t revealed to the public until well after Powell had been appointed to the Supreme Court, where he continued to wage his ideological battle in defense of capitalism and corporate power (including, of course, free speech rights articulated in cash). In the memo Powell argued that:
The US Chamber of Commerce should lead an assault upon the major institutions, universities, schools, the media, publishing, the courts, in order to change how individuals think about the corporation, the law, culture, and the individual.
US businesses, Powell suggested, did not lack the resources for such an effort, particularly if they were pooled. That is, if people started to think together as a class rather than as individual firms and corporations. The US Chamber of Commerce took up this challenge in a very dramatic way. It expanded its base from around 60,000 firms in 1972 to about a quarter of a million just a decade later. Other elite organizational forms also began to coalesce around this core following the advice of the memo. These included think tanks (e.g., the Heritage Foundation, established 1973 by Adolph Coors), as well as corporate money pumps to operationalize the memo’s chief objectives.
One of the most prominent of these organizations was the Business Roundtable, founded in 1972, and comprising CEOs whose corporations at the time accounted for about half of the US gross national product. During this period, through political action committees, the Roundtable was spending about $900 million annually on political matters, a very significant sum at the time. These newly emerging entities provided a mechanism for corporations to contribute substantial funds to political campaigns and candidates, authorized in large measure through a number of Supreme Court rulings, several written by Powell himself.
These PACs, which were just beginning to have a political presence (there were 89 PACs in 1974, and around 1,500 by 1982) gave to both parties largely in equal measure in the 70s, but began leaning heavily toward the Republicans, who had little difficulty aligning their platforms with capital corporate interests. This was also the moment that the traditional political base of the Republican Party began to merge with the Christian Right and with white working classes, who were persuaded that they had been left behind by affirmative action and other “illegitimate” policies (now, of course, cloaked as DEI and “wokeness”).
The problem for anyone struggling to get by, as this alliance portrayed it, was not capitalism and the neoliberalization of the society and economy. The real problem was liberals, who had used excessive state power to provide for special groups. The prevalent narrative, more pertinent now than ever, was the idea of unworthy “others” cutting in line ahead of worthy citizens: “You've worked hard. You've played by the rules. You're not getting ahead. Well, it's not that the system is stacked against you. It's that these people, who are undeserving, are getting more advantages than you get.” The Republican political base (and now most particularly MAGAnites) could be energized through positive mobilizations of things like religion and cultural nationalism, but it could also be turned out through very negative, though coded, though I would say increasingly less coded if not blatant, racism (e.g., President Richard Nixon’s “southern strategy”), xenophobia, homophobia, and anti-feminism.
Democrats, seemingly, were more conflicted, at least at that time, between support for their base and the need to pursue big money. That ambivalence, at least within the ranks of the Democratic Party establishment in its current manifestation, has now all but disappeared and constitutes the irreconcilable contradiction that plagues the party now. To return for a moment to Wolin:
By ignoring dissent and by assuming that the dissenters have no alternative, the party serves an important, if ironical, stabilizing function and in effect marginalizes any possible threat to the corporate allies of the Republicans.
According to critical geographer David Harvey, the structure that emerged out of this political realignment was as simple as it was predictable and durable. The Republican Party could, and still can, marshal massive financial resources and mobilize its popular base to vote against its own material interests on cultural or religious grounds, while simultaneously advancing the capital accumulation policies (ongoing war and arms sales, lowered taxation, massive deregulation, privatization of public goods and services) of their elite masters.
The Democratic Party, conversely, could not, and still cannot, afford to attend to the material needs (e.g., a national healthcare system, affordable housing, environmental and consumer protection, financial and anti-trust regulation, a peace dividend) of its traditional popular base because it was and is terrified of offending its donor class. Given the asymmetry, the political hegemony of the Republican Party became more sure over this period, and has relegated the Democrats, even when in power, to their current position of inauthenticity. If and until this most fundamental contradiction can be resolved, the policies and messaging will remain flaccid, impotent, and unsatisfying. Under these circumstances we can aptly paraphrase Phillips, to wit: So now the Democrats also go for the jugular. Unfortunately, it’s too often their own.
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Big Business Rejoices as Trump Scraps Biden Order Combating 'Excessive Concentration of Industry'
One critic called the president's move a "signal to monopolists that they have a clear path."
Aug 15, 2025
US President Donald Trump continued taking a hatchet to his predecessor's antitrust legacy this week by rolling back an executive order that affirmed the federal government's responsibility to "enforce the antitrust laws to combat the excessive concentration of industry, the abuses of market power, and the harmful effects of monopoly and monopsony."
Trump's revocation of former President Joe Biden's 2021 order drew enthusiastic applause from the largest corporate lobbying organization in the United States.
Sean Heather, the US Chamber of Commerce's senior vice president for antitrust, declared that by repealing the Biden order—which was titled "Executive Order on Promoting Competition in the American Economy"—Trump "has rightfully chosen vigorous competition that entrusts American consumers to pick winners and losers in the marketplace, not more government bureaucracy."
One anti-monopoly advocate, Matt Stoller of the American Economic Liberties Project, mockingly congratulated Trump for "securing the approval of the US Chamber of Commerce in repealing Biden's executive order saying competition is good."
The American Prospect's David Dayen called the president's move a "signal to monopolists that they have a clear path."
The president's decision was also welcomed by officials within the Trump administration who are tasked with enforcing the nation's antitrust laws, including Federal Trade Commission (FTC) Chair Andrew Ferguson and the head of the Justice Department's Antitrust Division, Gail Slater.
Ferguson claimed in a statement Thursday that the Biden order reflected the previous administration's "undue hostility toward mergers and acquisitions"—an assertion that Open Markets Institute legal director Sandeep Vaheesan refuted in a social media post, citing recent trends in merger enforcement actions.
Andrew Ferguson's claims re Biden admin are disconnected from the truth
- "Top-down competition regulations" were agencies reviving dormant statutory powers granted by Congress
- "Undue hostility toward M&A" is just not reflected in numbers on mergers and enforcement activity https://t.co/eHFyBm9tVk pic.twitter.com/PvCcsmvV8q
— Sandeep Vaheesan (@sandeepvaheesan) August 14, 2025
Biden administration antitrust officials—principally former FTC Chair Lina Khan and former DOJ Antitrust Division head Jonathan Kanter—drew praise across the political spectrum for combating corporate abuses and unlawful consolidation.
But during the first six months of his second term, Trump and his handpicked agency heads have settled or dropped key merger challenges brought by the Biden administration, ceding repeatedly to well-connected corporate lobbyists and allowing giant companies such as UnitedHealth to continue absorbing their competitors.
According to a newly updated tally by the consumer advocacy group Public Citizen, Trump administration agencies have thus far dropped enforcement actions against at least 165 companies.
"Pro-monopoly and pro-concentration of corporate power and control. Those are the policies the Trump admin has espoused in firing fair competition enforcers and revoking an executive order to revitalize fair competition across markets," the Open Markets Institute said Thursday. "And prices are still sky high. No surprise."
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Trump FTC Lets Corporate Lobbyists Kill 'Massively Popular' Click-to-Cancel Rule in Court
Republicans on the Federal Trade Commission have "ensured that hardworking people will keep getting stuck with subscriptions they don't want or can't afford," said one consumer advocate.
Jul 09, 2025
Consumer advocates said Tuesday that the Trump administration is to blame for an appeals court decision that effectively killed the Federal Trade Commission's click-to-cancel rule, a Biden-era effort to stop companies from trapping consumers in subscriptions with onerous cancellation terms.
The U.S. Court of Appeals for the 8th Circuit vacated the rule entirely on procedural grounds on Tuesday, siding with the U.S. Chamber of Commerce and other corporate interests that claimed the FTC's process in crafting and finalizing the rule did not give industry sufficient "opportunity to assess" the agency's "cost-benefit analysis of alternatives."
After the rule was finalized last October, the FTC—then led by Lina Khan—said it had received more than 16,000 public comments on the proposal, which would have required companies to make it just as easy for consumers to cancel subscriptions as it was to enroll. The agency said the number of subscription-related public complaints rose to nearly 70 per day in 2024, indicating growing anger at companies' predatory tactics.
Khan wrote on social media Tuesday that public comments on the rule were "overwhelmingly" supportive and criticized the Trump FTC for giving industry groups time to block the effort. The rule was originally set to take effect on May 14, but the Trump FTC—now led by Republican Andrew Ferguson and two GOP commissioners—voted on May 9 to delay implementation, citing industry concerns that "it would take a substantial amount of time to come into compliance."
"The rule was set to go into effect in May but this FTC slow-walked it—and now a court has tossed it out, claiming industry didn't get enough of a say," Khan lamented.
Lee Hepner, senior legal counsel at the American Economic Liberties Project, said Tuesday that "the byzantine rulemaking process provides courts with infinite discretion to torpedo rules in service of deep-pocketed corporations and in spite of overwhelming public support."
"The commission received 16,000 public comments on its rule, yet the 8th Circuit has the temerity to suggest the commission failed to provide enough process to the Chamber of Commerce," Hepner added. "Congress gave the FTC the power to stop unfair and deceptive practices."
"If the FTC is serious about affordability for everyday Americans, it must reissue the rule immediately."
Mark Meador, one of just three commissioners left at the FTC following President Donald Trump's firing of the agency's two Democratic members earlier this year, declared following the appeals court decision that the click-to-cancel rule "isn't going into effect for one reason: The Biden FTC cut corners and didn't follow the law."
The American Prospect's David Dayen wrote in response that Meador, a commissioner "who has the ability to reissue the rule," is "more interested in cheering on judicial obstruction than simply saying he will reissue the rule."
Given that Ferguson and Republican FTC Commissioner Melissa Holyoak voted against finalizing the click-to-cancel rule last year, it is unlikely that they will support reviving the rule in the wake of the appeals court decision. Meador was not an FTC commissioner when the rule was finalized.
Nidhi Hegde, executive director of the American Economic Liberties Project, slammed the Trump FTC for delaying the rule's enforcement "long enough for big corporate lobbyists to win in court."
"It's bad enough that the Trump FTC has done nothing to bring down costs for the American people," Hegde said in a statement Tuesday. "Now, by slow-walking a simple, massively popular protection, they've ensured that hardworking people will keep getting stuck with subscriptions they don't want or can't afford from cable companies, gyms, and online services. If the FTC is serious about affordability for everyday Americans, it must reissue the rule immediately."
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Analysis of Lobbying in 2024 Shows Clear Target: A Tax Code Forever Favorable to Corporations
"Conversations on Capitol Hill about federal tax policy were dominated by those representing corporate and wealthy interests," said one leader at Public Citizen.
Apr 10, 2025
As the GOP forges ahead with a tax plan that would disproportionately benefit the wealthy, the watchdog Public Citizen published a report Thursday which found that the vast majority of tax lobbyists' work in 2024 was done on behalf of corporate clients.
Although the Republican tax and spending bill is taking shape in 2025, not 2024, Public Citizen's report suggests that the general thrust of the tax bill—tax cuts that disproportionately benefit the rich and could lead to a massive slashing of programs including Medicaid—can be explained in part due to the power of corporate lobbying.
"Conversations on Capitol Hill about federal tax policy were dominated by those representing corporate and wealthy interests," said Susan Harley, managing director of Public Citizen's Congress Watch division, in a statement Thursday. "The Trump-Republican tax proposal is a policy of the rich, by the rich, and for the rich."
Republicans are aiming to extend expiring provisions of President Donald Trump's 2017 Tax Cuts and Jobs Acts (TCJA), and also enact additional cuts. On Thursday, the Republican-controlled House of Representatives approved a budget blueprint that gets the GOP one step closer to securing the spending and cuts sought by Trump.
According to Public Citizen's report, most of the corporations and corporate trade associations that were the largest hirers of tax lobbyists in 2024 lobbied specifically on the TCJA.
Most of the TCJA's provisions that impact businesses, like cutting the top corporate income tax rate from 35% to 21%, do not expire—though Trump has said that he would like to see the corporate tax rate further cut, to 15%.
In its analysis, Public Citizen also highlighted that a deduction for "pass-through" businesses—whose owners report their share of profits as taxable income under the individual income tax—is set to expire, though pass-through businesses on average tend to be smaller businesses than their counterparts who pay corporate income tax. Pass-through businesses include sole proprietorships, partnerships, limited liability companies, and S-corporations.
To compile its report, Public Citizen searched all federal lobbying disclosures for 2024 to compile a list of all lobbyists who indicated that they lobbied on "tax issues" (the report notes how they define lobbying on "tax issues").
More than 6,000 lobbyists swarmed Capitol Hill in 2024 to lobby on tax issues, the group found, which amounts to nearly half of all federal lobbyists. Public Citizen highlighted that by comparison, there are only 535 members of Congress.
Out of the top 100 entities hiring the most lobbyists to work on tax issues in 2024, all but two represented corporate interests, according to the report.
The corporate trade group the U.S. Chamber of Commerce topped the list with 99 lobbyists. Other top hirers of tax lobbyists included the telecommunications company Verizon and the global financial technology platform Intuit.
However, according to Public Citizen, counting the number of unique lobbyists does not reveal the "true scope" of lobbying taking place. For example, five new corporations could start lobbying on the same tax issue, but if they hired a lobbyist who had already been working on that tax issue, looking at the individual number of lobbyists would not register this increase in lobbying activity, per the report.
That means that counting the number of "unique lobbyist client relationships" reveals a more accurate picture of lobbying activity.
According to the report, clients sent more than 10,500 lobbyists to influence tax issues on average for each quarter in 2024, and more than 85% of those lobbyists represented corporate interests each quarter.
The report notes that "many of the 15% of entities categorized as not representing corporate interests are likely not lobbying against such interests. Our methodology is conservative. Many nonprofit hospital systems, for example, operate similarly to for-profit entities."
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Vermont Sued for New Law Requiring Big Oil to Pay for Climate Damage
'For too long, giant fossil fuel companies have knowingly lit the match of climate disruption'
Jan 05, 2025
The US Chamber of Commerce and the American Petroleum Institute - representing the biggest fossil fuel companies in the world - are suing the State of Vermont over its new law requiring fossil fuel companies to pay a share of the state's damage caused by climate change.
The lawsuit, filed last Monday in the US District Court for the District of Vermont, asks a state court to prevent Vermont from enforcing the law passed last year. Vermont became the first state in the country to enact the law after it suffered over $1 billion in damages from catastrophic summer flooding and other extreme weather.
Vermont’s Attorney General’s Office said as of Friday, Jan. 3, they had not been served with the lawsuit.
The lawsuit argues that the U.S. Constitution precludes the act and that the federal Clean Air Act preempts state law. It also claims that the law violates domestic and foreign commerce clauses by discriminating “against the important interest of other states by targeting large energy companies located outside of Vermont.”
The Chamber and the American Petroleum Institute argue that the federal government is already addressing climate change. Because greenhouse gases come from billions of individual sources, they claim it has been impossible to measure “accurately and fairly” the impact of emissions from a particular entity in a specific location over decades.
“For too long, giant fossil fuel companies have knowingly lit the match of climate disruption without being required to do a thing to put out the fire,” Paul Burns, executive director of the Vermont Public Interest Research Group, said in a statement. “Finally, maybe for the first time anywhere, Vermont is going to hold the companies most responsible for climate-driven floods, fires and heat waves financially accountable for a fair share of the damages they’ve caused.”
The complaint is an essential legal test as more states consider holding fossil fuels liable for expensive global warming-intensified events like floods, fires, and more. Maryland and Massachusetts are among the states expected to pursue similar legislation, modeled after the federal law known as Superfund, in 2025.
New York Gov. Kathy Hochul (D) signed a similar climate bill into law - the Climate Change Superfund Act- on Dec. 26, pointing to the need to fund climate adaptation projects.
Downtown Montpelier, Vermont was under water on Monday, July 10, 2023 caused by the flooding of the Winooski River.
(Photo: John Tully for The Washington Post via Getty Images)
Heavy Rains Cause Catastrophic Flooding In Southern Vermont
(Photo by Scott Eisen/Getty Images)
Flooding is seen in downtown Montpelier, Vermont
(Photo: John Tully for The Washington Post via Getty Images)
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Trump Judge Partially Blocks FTC Ban on Anti-Worker Noncompete Clauses
"We will keep fighting to free hardworking Americans from unlawful noncompetes," the agency said in response to the decision.
Jul 04, 2024
A Trump-appointed federal judge on Wednesday partially blocked a Federal Trade Commission rule banning most noncompete clauses, ubiquitous anti-worker agreements that prevent employees from moving to or starting their own competing businesses.
Judge Ada Brown of the U.S. District Court for the Northern District of Texas issued a preliminary ruling preventing the ban from taking effect against the handful of plaintiffs that sued the FTC over the rule mere hours after it was finalized in April. The plaintiffs include the tax service firm Ryan LLC and the U.S. Chamber of Commerce, the nation's largest corporate lobbying organization.
Researchers at the Revolving Door Project noted Wednesday that Ryan LLC was "represented by [former President Donald] Trump's Labor Secretary, Eugene Scalia, via BigLaw firm Gibson Dunn."
Watchdogs accused the U.S. Chamber, which celebrated Wednesday's decision, of "judge-shopping," a tactic the organization frequently uses to secure favorable legal outcomes. District courts in Texas fall under the purview of the 5th Circuit Court of Appeals, which is dominated by right-wing extremists.
In her Wednesday decision, Brown did not immediately grant the plaintiffs' request for a nationwide injunction against the ban on noncompetes. But the judge signaled she would likely block the rule in its entirety with her final decision in the case on August 30—just days before the ban's scheduled implementation date.
"The court concludes the commission has exceeded its statutory authority in promulgating the noncompete rule, and thus plaintiffs are likely to succeed on the merits," Brown wrote in her 33-page decision.
"The need for judicial reform in Congress has never been more clear as far-right 5th Circuit territory judges have effectively put up a giant neon sign, 'Corporations, Please Sue Here.'"
A spokesperson for the FTC said in response to the ruling that the agency stands by its "clear authority, supported by statute and precedent, to issue this rule."
"We will keep fighting to free hardworking Americans from unlawful noncompetes, which reduce innovation, inhibit economic growth, trap workers, and undermine Americans' economic liberty," the spokesperson added.
The FTC, led by antitrust trailblazer Lina Khan, estimates that roughly 30 million U.S. workers are bound by noncompete agreements that restrict their ability to switch jobs in pursuit of higher wages and better benefits. The commission believes its ban on noncompetes would result in up to $488 billion in wage increases for U.S. workers collectively over the next decade.
Progressive advocacy groups cast Wednesday's decision as the latest attack on workers—and gift to corporations—by a Trump-appointed judge.
"By halting the noncompetes ban, this court is standing in the way of real gains for workers again," said Emily Peterson-Cassin, director of corporate power at Demand Progress. "With the decision overturning Chevron earlier this week, it's a one-two punch against everyday people."
Tony Carrk, executive director of Accountable.US, said in a statement that "the industry-funded U.S. Chamber continues to cost everyday Americans a ton of money with its suing spree against the Biden administration crackdowns on corporate greed, junk fees, and anti-worker barriers."
"The U.S. Chamber's lawsuit holding up the administration's credit card late fee rule is already costing Americans $27 million a day —and now this latest lawsuit could slam the door shut for millions of American workers to begin pursuing better opportunities," said Carrk. "Noncompete clauses could force employees to endure low wages and poor working conditions as the rule drags through the courts. The big bank and Wall Street CEOs on the U.S. Chamber's board have gotten a huge return on their investment while American workers pay the price."
"The need for judicial reform in Congress has never been more clear," Carrk added, "as far-right 5th Circuit territory judges have effectively put up a giant neon sign, 'Corporations, Please Sue Here.'"
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Supreme Court's Right-Wing Majority Delivers Gift to Corporate Criminals
Decision in SEC v. Jarkesy decried as a "victory for the wealthy and powerful" delivered by a right-wing majority that once again put "corporations, Wall Street, and billionaire benefactors over everyday Americans."
Jun 27, 2024
The U.S. Supreme Court on Thursday ruled along ideological lines that the Securities and Exchange Commission cannot use in-house legal proceedings to civilly penalize fraudsters, a decision that could strike a devastating blow to federal agencies' ability to fight corporate crime.
In the 6-3 decision, the high court's conservative supermajority deemed the SEC's in-house proceedings unconstitutional, siding with the U.S. Chamber of Commerce and other big business-aligned organizations that weighed in on the side of the plaintiff—conservative radio host and hedge fund manager George Jarkesy, who was accused by the SEC of defrauding investors and ordered to pay a $300,000 civil penalty.
Jarkesy argued the SEC proceedings violated his Seventh Amendment right to a jury trial. But as Vox's Ian Millhiser observed, "the Constitution treats civil trials very differently from criminal proceedings."
"While the Sixth Amendment provides that 'in all criminal prosecutions' the defendant is entitled to a jury trial," Millhiser wrote, "the Seventh Amendment provides a more limited jury trial right, requiring them 'in suits at common law.'"
Millhiser argued that with its ruling in SEC v. Jarkesy, the high court effectively "lit a match and tossed it into dozens of federal agencies."
The Supreme Court's three liberal judges dissented from Thursday's decision, with Justice Sonia Sotomayor denouncing the ruling as "a power grab" with potentially "momentous consequences."
"Today's ruling is part of a disconcerting trend: When it comes to the separation of powers, this court tells the American public and its coordinate branches that it knows best," Sotomayor wrote, warning that the decision "means that the constitutionality of hundreds of statutes may now be in peril, and dozens of agencies could be stripped of their power to enforce laws enacted by Congress."
Congress would have to give a bunch of federal agencies VASTLY more money and personnel to handle all the jury trials they would need to conduct to patch the hole that SCOTUS just blew in their enforcement powers. It won't happen. This case will just let lawbreakers off the hook.
— Mark Joseph Stern (@mjs_DC) June 27, 2024
Consumer advocates and watchdog organizations warned the high court's decision in SEC v. Jarkesy could have implications that extend well beyond the Securities and Exchange Commission, given that other key agencies—including the Federal Trade Commission, the Federal Mine Safety and Health Review Commission, and the Environmental Protection Agency—use internal legal proceedings overseen by an administrative law judge.
The Associated Press noted Thursday that the SEC "had already reduced the number of cases it brings in administrative proceedings pending the Supreme Court's resolution of the case."
"Today's decision is another step in the long-term corporate project of neutering federal agencies' ability to protect the public from fraudsters, rip-offs, dangerous products, carbon polluters, and more," Robert Weissman, president of Public Citizen, said in a statement. "The decision will have near-term consequences for the financial system, as it hinders the SEC's ability to seek critical penalties."
As a result of Thursday's ruling, said Weissman, some federal agencies "will need new authority from Congress, which is not doing much legislating, in order to be able to enforce the law."
"The decision extols the Seventh Amendment, but shows little respect for the separation of powers that is at the heart of our constitutional system," Weissman added. "There's also more than a little irony in this court touting the right to access the court system, when it has broadly allowed companies to require consumers to use arbitration rather than protecting their right to access the courts."
"In gutting the federal government's ability to enforce laws enacted by Congress, this ruling gives special interests even more power to set the rules for the rest of us."
As Politico reported last month, an "alliance of tech billionaires, conservative legal activists, and the business lobby" joined the fight to strip the SEC of the key enforcement tool.
The outlet noted that "since Jarkesy was filed, companies including Meta, SpaceX, and Amazon have escalated it into a broader fight against federal power by suing other agencies over their own courts—a way of fighting unfavorable judgments by attacking the system that delivered it."
The Revolving Door Project noted in an analysis released Thursday that at least 13 organizations with "ties to court-whisperers and judicial gift-givers like Leonard Leo, Charles Koch, Paul Singer, Harlan Crow, and wealthy elites in the Horatio Alger Association in which Clarence Thomas is a key member" submitted amicus briefs supporting Jarkesy's fight against the SEC.
"Some of the organizations that supported the weakening of the SEC have direct ties to the powerful friends and benefactors of the court," the group said. "The very same people who are flying Clarence Thomas and Samuel Alito to vacation destinations on private jets are closely tied to organizations that are urging the court through amicus briefs to rule in a manner favorable to corporate wrongdoers."
Caroline Ciccone, president of the watchdog group Accountable.US, said in a statement Thursday that the Supreme Court's decision "is a victory for the wealthy and powerful, delivered by a Supreme Court conservative majority all too used to putting corporations, Wall Street, and billionaire benefactors over everyday Americans."
"In gutting the federal government's ability to enforce laws enacted by Congress, this ruling gives special interests even more power to set the rules for the rest of us," said Ciccone. "Let's be clear: This is a power grab that will ultimately harm ordinary people by making it harder for federal agencies to hold corporations accountable for misdeeds."
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'Seismic Win for Workers': FTC Bans Noncompete Clauses
Advocates praised the FTC "for taking a strong stance against this egregious use of corporate power, thereby empowering workers to switch jobs and launch new ventures, and unlocking billions of dollars in worker earnings."
Apr 23, 2024
U.S. workers' rights advocates and groups celebrated on Tuesday after the Federal Trade Commission voted 3-2 along party lines to approve a ban on most noncompete clauses, which Democratic FTC Chair Lina Khansaid "keep wages low, suppress new ideas, and rob the American economy of dynamism."
"The FTC's final rule to ban noncompetes will ensure Americans have the freedom to pursue a new job, start a new business, or bring a new idea to market," Khan added, pointing to the commission's estimates that the policy could mean another $524 for the average worker, over 8,500 new startups, and 17,000 to 29,000 more patents each year.
As Economic Policy Institute (EPI) president Heidi Shierholz explained, "Noncompete agreements are employment provisions that ban workers at one company from working for, or starting, a competing business within a certain period of time after leaving a job."
"These agreements are ubiquitous," she noted, applauding the ban. "EPI research finds that more than 1 out of every 4 private-sector workers—including low-wage workers—are required to enter noncompete agreements as a condition of employment."
The U.S. Chamber of Commerce has suggested it plans to file a lawsuit that, as The American Prospect detailed, "could more broadly threaten the rulemaking authority the FTC cited when proposing to ban noncompetes."
Already, the tax services and software provider Ryan has filed a legal challenge in federal court in Texas, arguing that the FTC is unconstitutionally structured.
Still, the Democratic commissioners' vote was heralded as a "seismic win for workers." Echoing Khan's critiques of such noncompetes, Public Citizen executive vice president Lisa Gilbert declared that such clauses "inflict devastating harms on tens of millions of workers across the economy."
"The pervasive use of noncompete clauses limits worker mobility, drives down wages, keeps Americans from pursuing entrepreneurial dreams and creating new businesses, causes more concentrated markets, and keeps workers stuck in unsafe or hostile workplaces," she said. "Noncompete clauses are both an unfair method of competition and aggressively harmful to regular people. The FTC was right to tackle this issue and to finalize this strong rule."
Morgan Harper, director of policy and advocacy at the American Economic Liberties Project, praised the FTC for "listening to the comments of thousands of entrepreneurs and workers of all income levels across industries" and finalizing a rule that "is a clear-cut win."
Demand Progress' Emily Peterson-Cassin similarly commended the commission "for taking a strong stance against this egregious use of corporate power, thereby empowering workers to switch jobs and launch new ventures, and unlocking billions of dollars in worker earnings."
While such agreements are common across various industries, Teófilo Reyes, chief of staff at the Restaurant Opportunities Centers United, said that "many restaurant workers have been stuck at their job, earning as low as $2.13 per hour, because of the noncompete clause that they agreed to have in their contract."
"They didn't know that it would affect their wages and livelihood," Reyes stressed. "Most workers cannot negotiate their way out of a noncompete clause because noncompetes are buried in the fine print of employment contracts. A full third of noncompete clauses are presented after a worker has accepted a job."
Student Borrower Protection Center (SBPC) executive director Mike Pierce pointed out that the FTC on Tuesday "recognized the harmful role debt plays in the workplace, including the growing use of training repayment agreement provisions, or TRAPs, and took action to outlaw TRAPs and all other employer-driven debt that serve the same functions as noncompete agreements."
Sandeep Vaheesan, legal director at Open Markets Institute, highlighted that the addition came after his group, SBPC, and others submitted comments on the "significant gap" in the commission's initial January 2023 proposal, and also welcomed that "the final rule prohibits both conventional noncompete clauses and newfangled versions like TRAPs."
Jonathan Harris, a Loyola Marymount University law professor and SBPC senior fellow, said that "by also banning functional noncompetes, the rule stays one step ahead of employers who use 'stay-or-pay' contracts as workarounds to existing restrictions on traditional noncompetes. The FTC has decided to try to avoid a game of whack-a-mole with employers and their creative attorneys, which worker advocates will applaud."
Among those applauding was Jean Ross, president of National Nurses United, who said that "the new FTC rule will limit the ability of employers to use debt to lock nurses into unsafe jobs and will protect their role as patient advocates."
Angela Huffman, president of Farm Action, also cheered the effort to stop corporations from holding employees "hostage," saying that "this rule is a critical step for protecting our nation's workers and making labor markets fairer and more competitive."
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Conservative Texas District Court Won't Implement Anti-Judge Shopping Policy
The chief judge of the Northern District of Texas indicated the court will not follow new guidance, while a lower court judge called out a pro-business group's use of "judge shopping."
Mar 31, 2024
Right-wing groups will still be able to pick and choose the judges who hear their cases in one of the most conservative federal court districts in the United States, following a decision by the Northern District of Texas on Friday that goes against new anti-"judge shopping" guidance.
Chief U.S. District Judge David Godbey of the Northern District wrote in a letter to Senate Majority Leader Chuck Schumer that the court would not abide by new guidance from the Judicial Conference, which said earlier this month that the court system should randomly assign lawsuits to any judge throughout the district where they're filed.
"The consensus was not to make any change to our case assignment process at this time," wrote Godbey, an appointee of former President George W. Bush.
The policy, announced on March 12, would require lawsuits that challenge federal or state laws to be assigned to a judge randomly throughout a federal district rather than staying in the specific smaller division where they were initially filed, a practice known as "judge shopping" or "venue shopping."
The practice has garnered scrutiny in recent months as right-wing groups have filed numerous lawsuits in the court of Judge Matthew Kacsmaryk, who presides over a federal court in Amarillo, Texas—also in the state's Northern District.
Kacsmaryk, an appointee of former President Donald Trump, ruled last year that the Food and Drug Administration's approval of mifepristone, a drug used for medication abortion, should be suspended. The U.S. Supreme Court heard arguments in an appeal last week, and the justices signaled that they were unlikely to impose new restrictions on the medication.
After Republican lawmakers wrote to federal judges telling them to disregard the Judicial Conference's guidance—which the body noted is discretionary—Schumer called on the courts to apply the new reforms to stop "extremists" from handpicking judges.
Godbey's letter signaled that the court will continue allowing conservative plaintiffs to select the venue where their cases are heard.
Judiciary observers noted that another judge in the Northern District—Mark Pittman in the Fort Worth division—suggested that chief judges may not have the final word on whether judge shopping continues to be tolerated.
Pittman, who was also appointed by Trump, ruled that a case filed by the U.S. Chamber of Commerce and other banking industry groups against the Consumer Financial Protection Bureau (CFPB) should be transferred to a federal court in Washington, D.C.
The judge agreed with the CFPB, which had argued the banking lobby had filed its lawsuit over the bureau's slashing of credit card late fees in the Northern District of Texas in order to secure a favorable ruling.
"Venue is not a continental breakfast; you cannot pick and choose on a plaintiff's whim where and how a lawsuit is filed," said Pittman. "Federal courts have consistently cautioned against such behavior."
"Even the judges you least expect," said David Dayen of The American Prospect, "are pissed at being pawns in a conservative game."
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Trump-Appointed Judge Blocks NLRB Rule Aimed at Helping Workers Unionize
The rule was supposed to go into effect on Monday.
Mar 11, 2024
A Trump-appointed federal judge in Texas has blocked a National Labor Relations Board rule that—had it been allowed to take effect on Monday—would have made it easier for workers to unionize at large companies.
The rule was passed four years ago, and it related to when two companies could be regarded as "joint employers" in labor negotiations. It was specifically aimed at dealing with situations like if a McDonald's franchise is a joint employer with its corporate brand.
"The new rule would have expanded that definition to say companies may be considered joint employers if they have the ability to control—directly or indirectly—at least one condition of employment. Conditions include wages and benefits, hours and scheduling, the assignment of duties, work rules, and hiring," CBS reports.
A federal judge in Texas has blocked the new NLRB "joint employer" rule.
Right now a company like McDonald's isn't technically the employer of most of its workers since they're directly employed by franchisees.
The new rule would've remedied that.https://t.co/SkneE8imqY
— More Perfect Union (@MorePerfectUS) March 11, 2024
Essentially, the franchise and the corporation would be considered a joint employer under the new rule. This would allow workers to negotiate with the corporation.
"The District Court's decision to vacate the board's rule is a disappointing setback, but is not the last word on our efforts to return our joint-employer standard to the common law principles that have been endorsed by other courts," NLRB Chair Lauren McFerran said in a statement. "The agency is reviewing the decision and actively considering next steps in this case."
The U.S. Chamber of Commerce and others sued the NLRB in order to prevent the rule from going into effect. The Texas judge ruled in their favor, and he said the rule exceeded "the bounds of the common law."
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