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DOJ’s Clear Threat to Go After Apple’s Source Code

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Oops: My post URLs crossed. Here’s where If Trump’s Protestors Didn’t Exist He Would Have to Invent Them is.

In a rather unfortunate section heading the government used in their brief responding to Apple last week, DOJ asserted “There Is No Due Process Right Not to Develop Source Code.” The heading seemed designed to make Lavabit’s point about such requests being involuntary servitude.

I’d like to elaborate on this post to look at what DOJ has to say about source code — because I think the filing was meant to be an explicit threat that DOJ can — and may well, even if Apple were to capitulate here — demand Apple’s source code.

The government’s filing mentions “source code” nine ten different times [see update]. The bulk of those mentions appear in DOJ’s rebuttal to Apple’s assertion of a First Amendment claim about having to write code that violates its own beliefs, as in these three passages (there is one more purportedly addressing First Amendment issues I discuss below).

Incidentally Requiring a Corporation to Add Functional Source Code to a Commercial Product Does Not Violate the First Amendment

Apple asserts that functional source code in a corporation’s commercial product is core protected speech, such that asking it to modify that software on one device—to permit the execution of a lawful warrant—is compelled speech in violation of the First Amendment.

[snip]
There is reason to doubt that functional programming is even entitled to traditional speech protections. See, e.g., Universal City Studios, Inc. v. Corley, 273 F.3d 429, 454 (2d Cir. 2001) (recognizing that source code’s “functional capability is not speech within the meaning of the First Amendment”).

[snip]

To the extent Apple’s software includes expressive elements—such as variable names and comments—the Order permits Apple to express whatever it wants, so long as the software functions. Cf. Karn v. United States Department of State, 925 F. Supp. 1, 9- 10 (D.D.C. 1996) (assuming, without deciding, that source code was speech because it had English comments interspersed).

Most people aside from EFF think Apple’s First Amendment claim is the weakest part of its argument. I’m not so sure that, in the hands of the guy who argued Citizens United before SCOTUS, it will end up that weak. Nevertheless, DOJ focused closely on it, especially as compared to its treatment of Apple’s Fifth Amendment argument, which is where that dumb heading came in. This is the entirety of DOJ’s response to that part of Apple’s argument.

There Is No Due Process Right Not to Develop Source Code

Apple lastly asserts that the Order violates its Fifth Amendment right to due process. Apple is currently availing itself of the considerable process our legal system provides, and it is ludicrous to describe the government’s actions here as “arbitrary.” (Opp. 34); see County of Sacramento v. Lewis, 523 U.S. 833, 846-49 (1998). If Apple is asking for a Lochner-style holding that businesses have a substantive due process right against interference with its marketing strategy or against being asked to develop source code, that claim finds no support in any precedent, let alone “in the traditions and conscience of our people,” “the concept of ordered liberty,” or “this Nation’s history.” Washington v. Glucksberg, 521 U.S. 702, 721 (1997).

Though admittedly, that’s about how much Apple included in its brief.

The Fifth Amendment’s Due Process Clause Prohibits The Government From Compelling Apple To Create The Request [sic] Code

In addition to violating the First Amendment, the government’s requested order, by conscripting a private party with an extraordinarily attenuated connection to the crime to do the government’s bidding in a way that is statutorily unauthorized, highly burdensome, and contrary to the party’s core principles, violates Apple’s substantive due process right to be free from “‘arbitrary deprivation of [its] liberty by government.’” Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1110 (9th Cir. 2010) (citation omitted); see also, e.g., Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998) (“We have emphasized time and again that ‘[t]he touchstone of due process is protection of the individual against arbitrary action of government,’ . . . [including] the exercise of power without any reasonable justification in the service of a legitimate governmental objective.” (citations omitted)); cf. id. at 850 (“Rules of due process are not . . . subject to mechanical application in unfamiliar territory.”).

In other words, both Apple and DOJ appear to have a placeholder for discussions about takings (one that Lavabit argued from a Thirteenth Amendment perspective).

Those constitutional arguments, however, all seem to pertain the contested order requiring Apple to create source code that doesn’t currently exist. Or do they?

As I noted in my earlier Lavabit post, the DOJ argument doesn’t focus entirely on writing code that doesn’t already exists. As part of its argument for necessity, DOJ pretends to take Apple at its word that the US government could not disable the features (as if that’s what they would do if they had source code!) themselves.

Without Apple’s assistance, the government cannot carry out the search of Farook’s iPhone authorized by the search warrant. Apple has ensured that its assistance is necessary by requiring its electronic signature to run any program on the iPhone. Even if the Court ordered Apple to provide the government with Apple’s cryptographic keys and source code, Apple itself has implied that the government could not disable the requisite features because it “would have insufficient knowledge of Apple’s software and design protocols to be effective.”  (Neuenschwander Decl. ¶ 23.)

Note DOJ claims to source that claim to Apple Manager of User Privacy Erik Neuenschwander’s declaration (which is included with their motion). But he wasn’t addressing whether the government would be able to reverse-engineer Apple’s source code at all. Instead, that language came from a passage where he explained why experienced engineers would have to be involved in writing the new source code.

New employees could not be hired to perform these tasks, as they would have insufficient knowledge of Apple’s software and design protocols to be effective in designing and coding the software without significant training.

So the discussion of what the government could do with if it had Apple’s source code is just as off point as the passage invoking the Lavabit case (which involved an SSL key, but not source code). Here’s that full passage:

The government has always been willing to work with Apple to attempt to reduce any burden of providing access to the evidence on Farook’s iPhone. See Mountain Bell, 616 F.2d at 1124 (noting parties’ collaboration to reduce perceived burdens). Before seeking the Order, the government requested voluntary technical assistance from Apple, and provided the details of its proposal. (Supp. Pluhar Decl. ¶ 12.) Apple refused to discuss the proposal’s feasibility and instead directed the FBI to methods of access that the FBI had already tried without success. (Compare Neuenschwander Decl. ¶¶ 54-61, with Supp. Pluhar Decl. ¶ 12.) The government turned to the Court only as a last resort and sought relief on narrow grounds meant to reduce possible burdens on Apple. The Order allows Apple flexibility in how to assist the FBI. (Order ¶ 4.) The government remains willing to seek a modification of the Order, if Apple can propose a less burdensome or more agreeable way for the FBI to access Farook’s iPhone.9

9 For the reasons discussed above, the FBI cannot itself modify the software on Farook’s iPhone without access to the source code and Apple’s private electronic signature. The government did not seek to compel Apple to turn those over because it believed such a request would be less palatable to Apple. If Apple would prefer that course, however, that may provide an alternative that requires less labor by Apple programmers. See In re Under Seal, 749 F.3d 276, 281-83 (4th Cir. 2014) (affirming contempt sanctions imposed for failure to comply with order requiring the company to assist law enforcement with effecting a pen register on encrypted e-mail content which included producing private SSL encryption key).

Effectively, having invented a discussion about whether the government would be able to use Apple’s source code out of thin air, DOJ returns to that possibility here, implying that that would be the least burdensome way of getting what it wanted and then reminding that it has succeeded in the past in demanding that a provider expose all of its users to government snooping, even at the cost of shutting down the business, even after Ladar Levison (after some complaining) had offered to provide decrypted information himself.

Significantly, the government obtained a warrant for Lavabit’s keys as a way of avoiding the question of whether the “technical assistance” language in the Pen/Trap statute extended to sharing keys, but Levison was ultimately held in contempt for all the orders served on him, including the Pen/Trap order and its language about technical assistance. The Fourth Circuit avoided ruling on whether that assistance language in Pen/Trap orders extended to encryption keys by finding that Levison had not raised it prior to appeal and that the District Court had not clearly erred, which effectively delayed consideration of the same kinds of issues at issue (though under a different set of laws) in the Apple encryption cases.

In making his statement against turning over the encryption keys to the Government, Levison offered only a one-sentence remark: “I have only ever objected to turning over the SSL keys because that would compromise all of the secure communications in and out of my network, including my own administrative traffic.” (J.A. 42.) This statement — which we recite here verbatim — constituted the sum total of the only objection that Lavabit ever raised to the turnover of the keys under the Pen/Trap Order. We cannot refashion this vague statement of personal preference into anything remotely close to the argument that Lavabit now raises on appeal: a statutory-text-based challenge to the district court’s fundamental authority under the Pen/Trap Statute. Levison’s statement to the district court simply reflected his personal angst over complying with the Pen/Trap Order, not his present appellate argument that questions whether the district court possessed the authority to act at all.

[snip]

The Government, however, never stopped contending that the Pen/Trap Order, in and of itself, also required Lavabit to turn over the encryption keys. For example, the Government specifically invoked the Pen/Trap Order in its written response to Lavabit’s motion to quash by noting that “four separate legal obligations” required Lavabit to provide its encryption keys, including the Pen/Trap Order and the June 28 Order.

[snip]

In view of Lavabit’s waiver of its appellate arguments by failing to raise them in the district court, and its failure to raise the issue of fundamental or plain error review, there is no cognizable basis upon which to challenge the Pen/Trap Order. The district court did not err, then, in finding Lavabit and Levison in contempt once they admittedly violated that order.

In other words, the Lavabit reference, like the invention of an Apple discussion about what the government could do with its source code (any such discussion would have been interesting in and of itself, because I’d bet Apple would be more confident FBI couldn’t do much with its source code than that NSA couldn’t), was off point. But in introducing both references, DOJ laid the groundwork for a demand for source code to be the fallback, least burdensome position.

And, as I noted, in the Lavabit case, the government justified demanding a key based on the presumption that Edward Snowden would have a more complicated password than Syed Rizwan Farook’s 4-digit numerical passcode. That is, in that case, the government tied a more intrusive demand to the difficulty of accessing a target’s communications, not to the law itself, which suggests they’d be happy to do so in the future if they were faced with an Apple phone with a passcode too complex to brute force in 26 minutes, as FBI claims it could do here.

All of which brings me to one more citation of source code in DOJ’s extended First Amendment discussion: a reference to a civil case where Apple was able to obtain the source code of a competitor.

This form of “compelled speech” runs throughout both the criminal and civil justice systems, from grand jury and trial subpoenas to interrogatories and depositions. See, e.g., Apple Inc.’s Motion to Compel in Apple Inc. v. Samsung Electronics, Docket No. 467 in Case No. 11–cv–1846–LHK, at 11 (N.D. Cal. Dec. 8, 2011) (Apple’s seeking court order compelling Samsung to produce source code to facilitate its compelled deposition of witnesses about that source code).

Note, this is not a case about Apple (or Samsung, in this case) being compelled to write new code at all. Rather, it is a case about handing over the source code a company already had. In another off point passage, then, DOJ pointed to a time when Apple itself successfully argued the provision of source code could be compelled, even in a civil case.

Through a variety of means, DOJ went well out of its way to introduce the specter of a demand for Apple’s source code into its response. They are clearly suggesting that if Apple refuses to write code that doesn’t exist, the government will happily take code that does.

Loretta Lynch claimed, under oath last week, that the government doesn’t want a back door into Apple products. That’s not what her lawyers have suggested in this brief. Not at all.

Update: Here’s how Apple treated this in its Reply:

The government also implicitly threatens that if Apple does not acquiesce, the government will seek to compel Apple to turn over its source code and private electronic signature. Opp. 22 n.9. The catastrophic security implications of that threat only highlight the government’s fundamental misunderstanding or reckless disregard of the technology at issue and the security risks implicated by its suggestion.

Also, in writing this post, I realized there’s one more reference to source code in the government’s Response, one that admits Apple’s source code is “the keys to the kingdom.”

For example, Apple currently protects (1) the source code to iOS and other core Apple software and (2) Apple’s electronic signature, which as described above allows software to be run on Apple hardware. (Hanna Decl. Ex. DD at 62-64 (code and signature are “the most confidential trade secrets [Apple] has”).) Those —which the government has not requested—are the keys to the kingdom. If Apple can guard them, it can guard this.

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The Origins of Totalitarianism Part 6: Totalitarian Propaganda

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Only the mob and the elite can be attracted by the momentum of totalitarianism itself; the masses have to be won by propaganda. P. 341.

As we saw in Part 5, the elites were neutralized by violence against the Marxists and Communists. That removed a major obstacle to the growth of the totalitarian movement in Germany between the two World Wars. It opened the door to all kinds of crackpot theorizing and ridiculous conspiracy theories. But terror is only available when the totalitarian movement has taken over the state. Before that time, the state monopolizes the instruments of force, and presumably will not use them to assist a totalitarian movement to replace the existing power structure. Therefore, the connivance of the Social Democratic party was the chief driving force in the crushing of the Marxists and communists. Once that was done, the totalitarian movement began its propaganda assault.

Arendt says that both Nazi and Russian Communist propaganda claim to be rooted in scientific theories that explain the hidden mysteries of human society:

People are threatened by Communist propaganda with missing the train of history, with remaining hopelessly behind their time, with spending their lives uselessly, just as they were threatened by the Nazis with living against the eternal laws of nature and life, with an irreparable and mysterious deterioration of their blood. P. 345,

Propaganda was focused on the mob, the displaced and rootless people with little or no understanding of the actual state of society. The primary criterion for the subjects of propaganda was mysteriousness. The creators used all those subjects that were not part of public discourse. That included the Jews, the Jesuits, the Freemasons, and other secret societies, in general anything that was kept secret for whatever reason. The mob was disposed to believe anything that revealed the workings of secret groups exercising power in ways that made their lives miserable. And there are plenty of events that seem unlikely in life, so the propagandists were able to offer explanations for lots of seemingly random events.

The following paragraph deserves special attention:

In other words, while it is true that the masses are obsessed by a desire to escape from reality because in their essential homelessness they can no longer bear its accidental, incomprehensible aspects, it is also true that their longing for fiction has some connection with those capacities of the human mind whose structural consistency is superior to mere occurrence. The masses’ escape from reality is a verdict against the world in which they are forced to live and in which they cannot exist, since coincidence has become its supreme master and human beings need the constant transformation of chaotic and accidental conditions into a man-made pattern of relative consistency. The revolt of the masses against “realism,” common sense, … was the result of their atomization, of their loss of social status along with which they lost the whole sector of communal relationships in whose framework common sense makes sense. In their situation of spiritual and social homelessness, a measured insight into the interdependence of the arbitrary and the planned, the accidental and the necessary, could no longer operate. Totalitarian propaganda can outrageously insult common sense only where common sense has lost its validity. Before the alternative of facing the anarchic growth and total arbitrariness of decay or bowing down before the most rigid, fantastically fictitious consistency of an ideology, the masses probably will always choose the latter and be ready to pay for it with individual sacrifices — and this not because they are stupid or wicked, but because in the general disaster this escape grants them a minimum of self-respect. P. 352, emphasis added.

Our minds seek order. We need a coherent story to explain the way things are. In a functional society, people have social and economic certainties that form the structure in which common sense can operate, and that structure is closely tied to reality. When those structures break down, as in post-WWI Germany and Austria, people want and accept stories that provide them with a sense of order, and a place in which they can find dignity and self-respect, no matter that these stories are totally bizarre and disconnected from reality.

Totalitarian propagandists provided such stories premised on pseudo-scientific certainties about society, certainties that explained the random events and the damaging experiences that made their lives unbearable. They blame secret forces, mysterious groups that control everything. A modern day equivalent would be the UN’s Black Helicopters, the Army’s Jade Helm, and the claim that Obama is going to seize your guns. Older examples include the New World Order or the Trilateral Commission, or the fantastical claims of the Communist menace of fluoride. These stories are always present in the minds of a few, and they spread like cancer when the economic and social structure is in disarray. In the case of Hitler, Arendt gives us as a concrete example, his use of the silly Protocols of the Elders of Zion. This nonsense works because the totalitarian movement is able to shut the targets of propaganda off from the real world. In that setting, propagandists

… conjure up a lying world of consistency which is more adequate to the needs of the human mind than reality itself; in which, through sheer imagination, uprooted masses can feel at home and are spared the never-ending shocks which real life and real experiences deal to human beings and their expectations. P. 353.

The elites, as we have seen, did not provide an alternative, but instead participated in these fictions, cheering them on, and through their art and music, provided even more disruption. Today we have conservative elites who deny science and bow down to the chimeras of religious fanatics.

Of course, today we don’t have anything as ham-handed as propaganda. We have endless advertising, whether in the form of paid spots on your TV, or “earned media”, as when the four former heads of the Council of Economic Advisers make up stories about a paper they haven’t read. We get bombarded with the most awful images and words, using techniques formulated to sell soap:

.…there is a certain element of violence in the imaginative exaggerations of publicity men, that behind the assertion that girls who do not use this particular brand of soap may go through life with pimples and without a husband, lies the wild dream of monopoly, the dream that one day the manufacturer of the “only soap that prevents pimples” may have the power to deprive of husbands all girls who do not use his soap. P. 345.

We see this working in the Orwellian language of Frank Luntz. We see it in the crackpot worldview of Trump, who adopted the Fox-supported fantasy that immigrants caused job losses in the US, and not the CEOs of Apple and Intel who built factories in other nations, supplying US built design and capital extracted from US citizens and giving jobs to Taiwanese instead of US citizens. This false view of the world is useful for selling the Trump brand over the Cruz or Rubio brand, and so off it goes to work on the minds of the poorly educated people that Trump loves so much.

There is a huge number of people whose lives are so disrupted that the stories pumped out by Republican presidential candidates sound good. There are millions thrown out of jobs who aren’t ever going to have the life they were promised if they worked hard and played by the rules. There are millions who lost everything in the Great Crash, and who now watch as their children shoulder mountains of education debt because they refused to pay taxes or to tax the rich. There are millions of racists, homophobes and misogynists who found a religious basis and government support for their biases, and who lost that support. There are millions of people whose parents are immigrants who somehow think that today’s immigrants are making their lives miserable. There are millions of religious people whose faith has been shaken to its roots by grasping preachers, pedophiles and a hierarchy that covered it up. The WaPo has the evidence. Barrons offers the spectacle of a deeply conservative Thomas Donlan calling the Republican base “losers”.

These so-called losers are not stupid people. In their despair, the advertising of the haters offers a bit of self-respect, and a story about the world that doesn’t require them to make radical changes.

Index to posts in this series.

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The Return of the Reagan Democrats

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Donald Trump held a rally in Warren, MI today, a blue-collar, largely white suburb of Detroit in Macomb County. The county, as a whole, is famous for what Democratic pollster Stan Greenberg dubbed the “Reagan Democrats” after lifelong white working class Democrats started flipping to the GOP in 1980, as he described in this study done on polling about Obama in 2008.

In 1960, Macomb was the most Democratic suburban county in the country as John F. Kennedy won handily there, garnering 63 percent of the vote. Four years later, Lyndon Johnson increased the Democratic vote share even further, winning 75 percent of Macomb voters. But over the next 20 years, these voters turned on the Democrats, culminating with Ronald Reagan taking 66 percent of the vote in 1984.

Even before the election, Greenberg found Obama did worse with Macomb’s voters than he did elsewhere. Greenberg even found some racial basis for that, though not as much as he had earlier. But Greenberg judged early on that Obama did so much better elsewhere in the state — primarily, with the young, but also by generating enthusiasm among African American voters — that it wouldn’t matter.

Obama is running 7 points ahead in our statewide poll conducted at the same time. Obama obviously will be able to count on immense enthusiasm and turnout among African Americans, but there is more going on than that – including Obama’s over-performance in the growing suburban parts of the state, including Oakland County, where he is running a net 5 points above party identification and 9 points ahead of John McCain. Among young voters under 30 years, Obama defeats McCain 58 to 36 percent but Obama’s success with younger voters is even broader.

He leads McCain among all voters under 40 years by 48 to 41 percent across Michigan and matches that margin in Macomb. Clearly, the rules of the game are a little different this year.

Sure enough, Obama did over-perform in the suburbs. So much so that after the election, Greenberg said so long to his Macomb Reagan Democrats, embracing, instead, the racially diverse (or at least tolerant) suburbanites who could replace them in the Democratic coalition.

Oakland County has formed part of the Republican heartland in Michigan and the country. From 1972 to 1988, Democratic presidential candidates in their best years lost the county by 20 points. From Bill Clinton to John Kerry, however, Democrats began to settle for a draw. Over the past two decades, Oakland County began to change, as an influx of teachers, lawyers and high-tech professionals began to outnumber the county’s business owners and managers. Macomb has been slow to welcome racial diversity, but almost a quarter of Oakland’s residents are members of various racial minorities.

These changes have produced a more tolerant and culturally liberal population, uncomfortable with today’s Republican Party. When we conducted our poll of 600 voters in Oakland County on election night, they were a lot more open than voters in Macomb to gay marriage and affirmative action. We asked those who voted for Mr. Obama why they made that choice. At the top of the list was his promise to withdraw troops from Iraq, followed by his support for tax cuts for the middle class and affordable health care for all, and the idea that he will bring people together, end the old politics and get things done.

On Tuesday, Oakland County voters gave Mr. Obama a 57 percent to 42 percent victory over John McCain — those 15 points translated into an astonishing 96,000-vote margin. That helped form one of the most important new national changes in the electorate: Mr. Obama built up striking dominance in the country’s growing, more diverse and well-educated suburbs.

So, good riddance, my Macomb barometer.

But in elections since, Democrats have been doing worse and worse among whites and, in the interim years, losing elections as a result. By 2014, Greenberg was not so sanguine about Democrats’ losing those white voters anymore.

For example, a lot of blue-collar work today takes place in small groups rather than in factory settings, and most construction workers are self-employed contractors. Moreover, if by blue-collar jobs we mean jobs that involve routine and repetitive tasks, require limited skills, are closely supervised, and offer no autonomy during working hours, then it turns out that half of all white male workers and 40 percent of white working women are blue collar. Far from working on factory floors, more and more workers are employed in service-sector jobs like health care, leisure and hospitality, and, particularly, professional and business services.

If Democrats cannot figure out how to appeal to today’s working-class voters, then they don’t deserve to lead. Nearly all of the people in these jobs have not seen a raise in years. The majority of them, who now work in the service sector—maids and housekeepers, waitresses and hostesses, cooks and dishwashers, counter attendants and ticket takers, janitors and hairdressers and child care workers—earn, on average, about $400 a week.

At that point, the GOP wasn’t even doing all that well with these voters. But they are now, with Donald Trump, returning today to the site of Reagan’s victory with the support of a bunch of working people arguably voting against their economic interest. Trump is speaking the language — significantly, of building infrastructure, and not just his damned wall — that would appeal to this group in a way the GOP had foresworn. And in Macomb, as elsewhere, Trump’s voters are his voters, largely detached from either party and thus far unimpressed with the dirt the GOP threw last night and reportedly will start throwing in abundance in the near future. Trump seems to recognize he has a limited window of time to win out before the shit gets really deep, and he stands a very good chance of doing just that.

And there is a real reason to be concerned that it will lead to victory for the GOP in November.

Thus far, we’re seeing Democratic turnout down, significantly, and GOP turnout up even more. That comes, in large part, because white voters — thus far we’ve had voting in the South, so these consist of what this analysis calls old-style Dixiecrats as well as Trump cross-overs — are turning to Donald Trump. Worse, we’re not seeing the kind of turnout among people of color, not even African Americans, that Democrats have been presuming would build a permanent firewall against GOP victories.

So it’s absolutely imperative that we find some way to do three things:

  • Bring back some form of the Obama effect on African American turnout, so it does not fall (as it did in South Carolina).
  • Give younger voters the motivation to actually turn out and vote.
  • Effectively fight the Trump effect, and stem the anti-establishment exodus of working class whites to the GOP, and to Trump.

If we can’t find a way to do that, then in the outer South:

  • North Carolina will not be remotely competitive.
  • Virginia won’t lean Dem, and could be a true tossup or even lean R.
  • Florida won’t really be a tossup, but will probably lean reasonably R as in 2004 (unless gains among Hispanics are fully strong enough to offset the Trump effect in North Florida and the drift of older retirees to the GOP).

That’s enough by itself to return the electoral college map to something more similar to what we had in 2000 and 2004. And if the Trump effect is strong in places like Ohio, Pennsylvania, and Michigan, then we could have a real fight on our hands, without any clear reason to think we have the upper hand.

In other words, with Trump on the GOP ballot and Obama off the Dem ballot, the Obama coalition could come tumbling down and crash into pieces. That “blue wall” we liked to think made America safe from another George W. Bush? Gone. History.

But even in MA, Trump drew those working class whites in YUGE numbers.

Bernie probably had a shot at winning among white and black and brown working people. Partly because the Democrats launched Republican attacks on sound policy, partly because Bernie didn’t listen to people of color enough, and partly because Trump had an easier sell to the white working class, he won’t pull it off.

Which will leave Hillary and Oakland’s voters (or, in parallel fashion, huge wins in the most affluent Military Industrial Complex suburbs of VA).

Democrats risk losing this election, once again to Reagan’s Democrats. If Trump wins, it may also be a realignment election, where Democrats become the party of those suburbs while Trump feeds the fears of those working towns. As Greenberg said, Democrats don’t deserve to win if they’re not offering solutions for those working class service workers, of all classes.

And thus far, Democrats haven’t convinced sufficient numbers they do.

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Wonks and Trump

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Back in July, I wrote that if and when Republicans, having worked their way through the 5 stages of Trump grief, came to accept him as their party’s standard bearer, I hoped that “they may well recognize that their ideological celebration of the rich and of demagoguery have delivered them precisely the candidate they’ve asked for.”

Republicans have worked their way through their grief — especially in the face of even more destabilizing Cruz grief, seem to be coming to grips with that their party seems poised to do.

The pundits who said it would never happen, however, are having a bit more difficult time.

Nate Cohn, still imagining a Marco Rubio (and not John Kasich, who’s the best polling non-nut right now) resurgence, is shocked that Republican leaders have helped Trump shore up his IA advantage, and with it chances he’ll get the nomination.

There’s still a lot of time before the caucuses on Feb. 1. The debate on Thursday could change things, as could the belated airing of attacks on Mr. Trump from Mr. Cruz’s allies. Mr. Cruz is also thought to have a considerable organizational advantage over Mr. Trump, who may be dependent on low-turnout voters.

But the increasing possibility that Mr. Trump will win the state — in no small part because of an improbable alliance with the party’s establishment — makes Mr. Trump’s path to the nomination far more plausible than ever before.

[snip]

Astonishingly, Mr. Trump’s attacks were successful in part because they were amplified by some of the G.O.P.’s most prominent leaders, like John McCain and Mitch McConnell. The chorus of opposition to Mr. Cruz didn’t end there; Terry Branstad, the six-term Iowa governor, said he wantedMr. Cruz “defeated,” and the former presidential nominee Bob Dole said he preferred Mr. Trump.

[snip]

A Trump win in Iowa could make it more difficult for a mainstream candidate, like Marco Rubio, to mount a comeback later in the season — even if the establishment does intend to fight Mr. Trump after dispatching Mr. Cruz.

Cohn points to Nate Silver for his judgment (including on whether the book The Party Decides has been disproven by Trump) that the GOP party is not so much backing Trump yet as it is working first to defeat

[I]t may be that Republicans think of Cruz as the more immediate threat, and then plan to turn around and attack Trump later. But that’s a high-degree-of-difficulty caper to pull off. For one thing, Trump, who’s in a much better position in the polls than Cruz in states after Iowa, could rack up several wins in a row if he takes the Hawkeye State.

[snip]

Things are lining up better for Trump than I would have imagined, however. It’s not his continued presence in the race that surprises me so much as the lack of a concerted effort to stop him.

And Jonathan Chait piles on, arguing with the others that his past predictions that Trump would go nowhere was based on the assumption that, “I didn’t think the GOP was suicidal.”

All three of these pundits are still missing the key part however (which carries over into Chait’s other badly wrong punditry). The reason Trump is winning this year (and the reason Bernie is competitive) is because the promises of the elite have gone undelivered for so long. It may be that the GOP is trying to accommodate to themselves to this, or still have plans to get save Rubio’s campaign. But ultimately, the GOP has no choice, because Trump proved immune (partly because of all the free press he has gotten, not to mention his own wealth) from their controlling mechanisms, but to let a man who exploited their own demagoguery exploit it one last time, because the master the GOP has been serving in its name — unrestrained capitalism — is not helping the high school educated white voters who make up the key part of Trump’s success. And yet, Trump’s voters like his authoritarianism, something else the GOP has encouraged more and more since 9/11.

The pundits are still looking at sacred fundamentals for their analysis, without considering that underneath them all are actual human beings who were bound, one day, to revolt over the undelivered promises.

The elite pundits are still operating — on the election itself, but also on health care and economic policy — on the assumption that no one will or is holding them responsible for their undelivered promises.

Update: I hope (well, actually, may reluctantly after much procrastination) return to this issue, but this great post hits at a lot of what I would also hit at on the pundits’ lack of awareness about the revolt over unfulfilled promises.

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Mr. President: Trump’s Voters Are Changing Reagan’s Terms of Debate

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A lot of people are talking about this comment from Barack Obama on the Democratic primary.

GLENN THRUSH: I mean, when you watch this, what do you — do you see any elements of what you were able to accomplish in what Sanders is doing?

PRESIDENT OBAMA: Well, there’s no doubt that Bernie has tapped into a running thread in Democratic politics that says: Why are we still constrained by the terms of the debate that were set by Ronald Reagan 30 years ago? You know, why is it that we should be scared to challenge conventional wisdom and talk bluntly about inequality and, you know, be full-throated in our progressivism? And, you know, that has an appeal and I understand that.

I think that what Hillary presents is a recognition that translating values into governance and delivering the goods is ultimately the job of politics, making a real-life difference to people in their day-to-day lives. I don’t want to exaggerate those differences, though, because Hillary is really idealistic and progressive. You’d have to be to be in, you know, the position she’s in now, having fought all the battles she’s fought and, you know, taken so many, you know, slings and arrows from the other side. And Bernie, you know, is somebody who was a senator and served on the Veterans’ Committee and got bills done. And so the—

For example, Greg Sargent argues this represents Obama siding with Hillary’s more “realistic” approach to policy.

Obama is basically trying to pour cold water on the loftiness of Sanders’ argument, by nodding to the “appeal” of promising another transformative moment, while suggesting that Clinton’s more constrained view of what can be “delivered” is more realistic, and that this is actually an attribute that recommends her for the presidency.

I’m struck, though, by Obama’s description of what makes Hillary more “realistic:” the terms of debate that Reagan set 35 years ago.

He’s making that argument, of course, in a year where Reagan’s party has utterly failed to sell its voters on any of the insider candidates for the president: especially not the son of Reagan’s Vice President. This is a year when what once got called Reagan Democrats are supporting a loudly racist protectionist, Donald Trump.

A lot of people are ignoring this fact, and failing to consider what it means for this election and potentially even for “reality” in its aftermath. Indeed, a lot of Republicans are rationalizing supporting Trump over Ted Cruz based on their claim that Trump doesn’t have any ideology, ignoring that Trump espouses economic views that largely conflict with the neoliberal doctrine of both mainstream Republicans and Democrats.

The growing likelihood that Trump will win the nomination and run on his protectionist policies won’t change what incumbents get reelected in the House — and therefore the likelihood that, if a Democrat does win, any legislative agenda will be bottled up in the Congress. But it will change what the Republican party claims to support, and the expectations its voters have of it.

Indeed, one of the only times anyone in this race was able to get Trump to change his public stance came when Bernie Sanders called him on his claim that wages were too low in this country.

Donald Trump, billionaire Republican presidential frontrunner, has changed his mind about wages: Americans aren’t earning enough. He’s also not keen on Wall Street. The shift has Trump on a collision course with Democrat Bernie Sanders – while oddly agreeing with many of his points.

“Wages in are [sic] country are too low, good jobs are too few, and people have lost faith in our leaders. We need smart and strong leadership now!” Trump tweeted on Monday.

[snip]

“[T]axes too high, wages too high, we’re not going to be able to compete against the world. I hate to say it, but we have to leave [the minimum wage] the way it is,” Trump said at the time. “People have to go out, they have to work really hard and have to get into that upper stratum. But we cannot do this if we are going to compete with the rest of the world. We just can’t do it.”

Sanders, a senator from Vermont and self-described socialist, used those comments to criticize Trump while appearing on CBS Face the Nation on Sunday.

“This is a guy who does not want to raise minimum wage,” he said of Trump. “In fact, he has said that wages in America are too high.”

Trump lashed back at Sanders, tweeting: “[Bernie Sanders]–who blew his campaign when he gave Hillary a pass on her e-mail crime, said that I feel wages in America are too high. Lie!”

There’s a reason Bernie’s attack worked and the feeble attacks launched thus far at Trump from the right have not: because Trump needs to promise the non-college educated white voters who are the key to his popularity that he will improve their lives, and while they may not be college educated they’re not so dumb as to believe they need a pay cut.

Of course, the same dynamic that has made Trump such a strong candidate also drives the willingness of voters to support a socialist. Bernie just offers a different solution to the economic woes that 35 years of cuts have brought.

A substantial and very motivated part of the electorate, on both the right and left, is telling pollsters Reagan’s rules have failed. Particularly in the face of a Trump candidacy, Democrats will have to decide whether they want to use that as an opportunity to free themselves of those terms of debate, or take ownership of them moving forward.

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Predictably, GOP Candidates Have Started Calling for Drone Strikes against Immigrants

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Two days ago, as part of a Twitter discussion about how wasteful and ineffective a border wall would be, I predicted the Republican presidential candidates would recommend massively increased drone patrols and strikes on immigrants at the border, because it’s expensive and unworkable, but would sound cool.

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To be honest, I thought it would take slightly longer than two days to be proven right.

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The Coming Trump Legacy On Immigration

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donald-trump-bad-hairHere is a bloody secret about blogging: The best ideas you express often come from others, even if you value add on to them. Welp, there will be no value adding on here, this post is 100% the work of our longtime friend at both Emptywheel and FDL, the one and only Peterr:

I had this vision of Donald Trump taking down the Statue of Liberty, replacing it with an even larger figure of himself, with a new poem inscribed on the base befitting his views on immigrants.

The New New Colossus

Not like the New Colossus, French-built bile
With calling torch and open arms so grand;
Now on this isle a Grander One shall stand:
A mighty huckster with a scam, whose smile
is a racist, hateful sneer, with his pile
of ego-sculpted hair. From his grasping hand
comes a devil’s contract; his beady eyes demand
payment ‘ere any travel one more mile.

“Keep, foreign lands, your homeless poor,” cries he
with flapping lips. “Give me your greedy, your rich,
Your coddled wealthy yearning to pay me,
the grasping powers drawn here by my pitch.
Send these, the makers, ready with my fee;
I snuff the lamp of Liberty, that bitch.”

I leave it to your imagination to envision the figure of The Donald standing astride New York harbor for yourself.

Okay, Peter is a long time friend, and his take totally merited publication. But Lady Liberty takes some attending to. You have to want the freedom of this country, you have to want it bad, and you have to be willing to fight for it, even when that freedom makes your blood curl (props to Sorkin’s American President). But wanting the American ethos is easy for an apparently gerbil topped pretender like Donald Trump. Trump wants the limelight, wants all the glory, and never wants to answer for the hell of stupidity, bankruptcy, loss of jobs and ignorance that he really stands for. Troll on Donald.

So many have given their lives for the right of a hollow shill to troll the American electorate. So many have died for that. So many just to give a blowhard clownshow jackhole the right to parade around like he is diddly shit other than the court jester and a sideshow amusement huckster.

The American people can propagate and tolerate an enormous amount of stupid, but not enough to let a pompous, bankruptcy generated, pompous jackass like Donald Trump through the door. Just an opinion, and a sincere hope.

Nope. George Bush was one thing, Trump is a bridge too far.

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