Jon Wiener: From The Nation magazine, this is Start Making Sense. I’m Jon Wiener. Later in the hour: The Democrats are now favored to win not only the House but also the Senate in November; John Nichols will explain where we stand right now in the key senate races. But first: the Supremes and the Ballroom. Rob Weissman has our analysis – in a minute.
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The Supreme Court gave Trump a victory on Monday when they ruled 5 to 4 that he could keep going with construction of his ballroom. For comment and analysis, we turn to Robert Weissman. He’s co-president of Public Citizen, the nonprofit group that defends democracy and resists corporate power. They’ve sued Trump dozens of times. Rob Weissman, welcome back.
Rob Weissman: Hey, it’s great to be with you.
JW: In the decision on Trump’s ballroom, the conservative majority made it clear that they were not ruling on the merits of the case. What are the merits? What does the Constitution say about the president’s authority when it comes to major White House construction projects, like this massive new structure that will dwarf the historic White House?
RW: Well, the management of federal properties and the spending of money and a lot of money is being spent on this, that’s the prerogative of Congress. So, the underlying substance of the case that was brought says the president can’t do this unilaterally; it requires congressional approval and appropriations, and that hasn’t happened, and therefore the project shouldn’t move forward. And as you said, the majority did not disagree with that. Chief Justice Roberts, who was in the minority on this one, voting with the more liberal justices. He said he thinks most likely it is illegal what’s being done.
But the majority said that the plaintiff who brought the case, the National Trust for Historic Preservation, didn’t have standing to bring the case. That’s the legal doctrine that says you’ve got to have enough of a direct injury to bring the case forward. And the Supreme Court for decades has narrowed the definition of what constitutes standing. And in this case, they said, not this group, but not this time. And if it’s not this group at this time, there probably is no one who has standing except all of Congress itself. And of course, with Republicans in control of the Congress. Congress ain’t bringing this case.
JW: Let me just underline here that the idea that it’s Congress, not the president, who has the authority here. This is not just your opinion. That’s the official ruling of the U.S. Court of Appeals for the D.C. circuit, which took this up, didn’t consider standing a problem, and ruled that the Constitution’s property clause, something I’m not familiar with, gives Congress, “full constitutional control over federal property in the funding of its maintenance and development,” and that there is no basis for the president to do anything like this. White House lawyers argued before the Supreme Court that Trump’s ballroom was different because it was, “an integrated military complex, which is vitally required by national security.” So, there’s some sort of national security exception to this. Is there any basis for that?
RW: One of the things you learn when you go to law school, and this is when Trump is president, but also when he’s not, is that when the president says “national security,” in that case, about 98% of the time the courts are going to agree with the president. So here, the Trump administration has invented this preposterous rationale for a ballroom, which is that it is a national security imperative. And that’s not because of the ballroom itself, because as people well know, it’s because of this massive underground complex, they say, and actually, I believe, that they are building underneath the ballroom. Of course, they could have built exactly that under the existing structure. And there are already massive underground structures beneath the White House to serve the national security interest of protecting the president in case of some kind of emergency bombing or threat or whatever.
JW: So, this standing question, the heart of the majority opinion, was this critique of a statement by one of the members of the National Trust for Historic Preservation, which is the nonprofit chartered by Congress to protect public buildings. They have a member named Alison Hoagland. She lives in Washington and in the plaintiff’s briefs, she said she walks by the White House and that she found the scale, height and massing of this ballroom that it caused her to, “suffer both professional and personal injuries, including to my esthetic, cultural and historical interests.” She is a professional architectural historian, I should add, and the court, the conservative majority said, “mere offense, disagreement or distaste does not qualify as a concrete and particularized injury, and therefore the National Trust lacks standing.” I wonder whether that really was the heart of the plaintiff’s case that Trump’s ballroom caused them to suffer esthetic injury. Do we need to debate about the law of whether esthetic injuries are real injuries? Or is this all just a way of avoiding the obvious conclusion that the president can’t do this?
RW: Well, I think both things are true. It’s a way to avoid the obvious conclusion. But it’s this idea of standing that is central. So, the Constitution says the federal courts can only hear live cases or controversies, which means there has to be two parties, both of whom are directly affected by the issue at hand for a case to move forward in federal courts. Fifty years ago, there was an expansive understanding of standing so that when the government acted in ways that would hurt consumers, a consumer organization like mine automatically would have standing, wouldn’t even have to explain why we did. Nowadays, it’s almost impossible for us to bring a case on the grounds that a member of Public Citizen is being hurt by a proposed rule that’s going to injure consumers unless we can show that that person specifically is going to be hurt by a rule. So, if the rule was designed to say, to make it less likely for people to be injured by a dangerous car, the court might say, we can’t bring that case because we can’t show that the person we name actually was going to be injured as a result of the rule. That’s the kind of move the courts have made over the–not the courts, the Supreme Court –has made over the last 50 years to restrict standing. And this is only applies on the public interest side. It only applies when you’re trying to protect consumer interests, worker interests, environmental interests.
JW: And yet, in this case, the Chief Justice of the Supreme Court did not think that standing was a problem.
RW: Yeah, I guess this one upsets him. I mean, I think this again, the standing law is going, is trending this horrible direction, but has been more open for environmental cases. So, it would be easy to have arrived at the conclusion, as the lower courts did, as the four justices did, that the National Historic Trust does have standing. And truthfully, as you are suggesting, the standing is really a procedural thing. And it’s supposed to be wholly apart from the merits, but it’s not like the judges, the justices don’t know what’s at stake. So, they’re more inclined to find standing if you want the case to move forward and you’re less inclined to find standing if you don’t. So presumably in this case, John Roberts wasn’t just ruling on the standing. In fact, he said he thinks that this is illegal. So, he was aware of and wanted to reach the substance of this to block Trump from moving forward with his ballroom monstrosity. The other five justices, conservative justices, presumably just happy to rubber stamp where Trump does. They, too, might find the ballroom to be a monstrosity. But more important for them is establishing an executive power and bowing down to Trump, I guess.
JW: In the ballroom, of course, is this weird personal obsession of Trump’s. Here’s a time when you know he should be focusing on ending the war in Iran and working to reduce inflation, but he’s spending a lot of his time and energy focused on this vanity project, which is immensely unpopular with the public. The most recent poll I could find said 61% of Americans disapprove of the ballroom, only 25% approve. And that’s not because of the constitutional issues. It’s because of what the ballroom is and what it means and what it says about our priorities. And that’s, I think, going to help Democrats in the midterms. They’ve already made the ballroom a central talking point, a symbol of Trump’s twisted priorities, especially there was this period where the Senate Republicans included a $1 Billion dollar earmark in the budget for the ballroom. In its so-called security enhancements, they were forced by public opinion to remove the billion-dollar earmark. But Trump is still paying 300 million or 400 million from some other monies. It’s unclear what, even though he first announced that, “this is a gift — zero taxpayer funding — to the United States of America,” from the corporate donors who were supporting him. So, the Democrats have yet another political issue here about how the ultra-wealthy have taken over the White House and the Republican Party. They’re arguing that Americans do not need a ballroom. They need relief from rising costs of groceries, gasoline, housing, health care. It’s not going to help the Republicans in the midterms. Question really is what can be done now? You said that there really is apparently no plaintiff aside from Congress that would pass muster with the majority. Is there any other possible way to revive this case?
RW: Congress still has direct authority. Forget about bringing a lawsuit. Congress could order this to stop. Prohibit the use of any additional public dollars. And as you say, hundreds of millions of public dollars are being spent apart from the corrupt contributions that are coming in from the corporations and super rich. If control of the Congress flips in November, there actually is an opportunity for Congress to say no more. And, these spending bills do have to get passed, so there will be a real chance. Of course, Trump is trying to create facts on the ground. If the thing is mostly completed, it’s going to be hard to stop it. But I don’t want to brush over the other element you were saying, which is in some ways the most important. Yeah, this is a vanity project, and he loves it because it speaks to his idea to be a king and so on. And that’s horrible. It’s a distraction, although I’m happy for him to be distracted. Every day he’s not thinking about it, every minute he’s not thinking about doing the next evil thing is a good minute, as far as I’m concerned. But the original funding for this, and still the base funding for it, comes from these hundreds of millions of dollars in contributions from corporations and super rich people with business before the government.
So, we’ve looked at this, and the more than two dozen companies that made contributions had in the last five years, about $300 billion in federal contracts. And the time since the project was announced, they’ve secured another $50 billion in federal contracts. They’ve got all kinds of enforcement actions they’re trying to escape from. They’ve got all kinds of policy interests. They want advance. So, for them, this is just trivial money to grease the contracts they want or the policy outcomes they’re lobbying for. And that’s the really big picture, corrupt angle of this thing. And hopefully will be a message that’s driven home to the American people in the election and done so in a way that rejects that kind of politics, not just when it comes to Trump, but when it comes to all the ways that corporations’ money, not just the Republican Party, but the Democrats as well, the Democrats remember that as they take control and hopefully gain the presidency, that we’re abandoning this politics of supplicating ourselves to the big donors, whether it’s to build ballrooms or to fund our campaigns and to sacrifice policy that the American people need and are demanding.
JW: And there’s one other big picture issue that this raises. Once again, Supreme Court reform, this is something that you and your organization have been working on for a while. What is what have you been arguing for this we need in terms of Supreme Court reform?
RW: Yeah. I mean, obviously this is one in a long series of cases that precede Trump and get to the heart of our democracy, whether it’s the gutting of the Civil Rights Act or the authorizing of endless corporate money and super rich money and elections via Citizens United. And then all of the many decisions during this Trump administration through informal processes to rubber stamp what really should be widely understood to be illegal actions by the Trump administration. So, what do you do about this court that’s packed with three Trump appointed justices who tend to vote for whatever he wants? A lot of ideas on the table about how to reform the court. I think the easiest and best one, at least for right now, circumstances actually could change this. But the best one is to establish 18-year term for Supreme Court justices, rotate the justices after 18 years. So in every four year term of a president, they would get to appoint two justices. In the immediate term, if you apply that retroactively, which is necessary, you would push out some of the older conservative justices that have a chance to rebalance the court, so it’s no longer not just a pro Trump court, but a rubber stamp pro corporate court.
JW: Last thing getting back to the structure under construction right now. There are various proposals of what the Democrats should do with that, assuming they get back in power in 2029. Some people say it should just be torn down. Others argue it should be repurposed. And I think my favorite proposal is they should ask ordinary people what they think should be done with this building. They should ask in Rust Belt towns and declining agricultural areas, what would they like to see done with this building? Some have proposed, for instance, it be turned into a museum of corporate corruption. I wonder if you have any suggestions.
RW: You know, it’s a problem that it’s part of the White House complex. So, you do have legitimate security interests. You can’t just make it easily open to the public. You couldn’t, for example, easily convert it into a homeless shelter, which would be nice.
JW: Rob Weissman is co-president of Public Citizen. Rob, thanks for talking with us today.
RW: Thank you, Jon.
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Jon Wiener: For today’s political update, we turn to John Nichols. Of course, he’s executive editor of The Nation. John, Welcome back.
John Nichols: It is a pleasure to be with you.
JW: Labor Day marks the kind of semiofficial start of the real campaign. Ordinary Americans don’t follow politics the way you and I do. They don’t think about it every day. In fact, a lot of people don’t think about politics much at all. Remember, only about 60% of Americans even vote for president. Only 40% percent vote in the midterms for their members of Congress and state officials. Maybe higher this year because Democrats are so motivated to vote. But as we go into Labor Day weekend, it seems pretty clear that the Democrats are going to start the campaign season looking like they’re going to win a majority of the House in November. And right now, Democrats are favored to win a majority of the Senate, too. I want to look at the Senate races because those are the more challenging ones. The most amazing one is Texas, where good polls have Democrat James Talarico ahead of Republican Paxton by three points. This is Texas, where the last time a Democrat was elected to the Senate was 1988. What is going on in Texas?
JN: There’s two things. Number one, Texas is changing. When you look at the election results in presidential races, you see that Democrats now run quite solidly in Texas. They don’t win it necessarily, but they’re certainly in the game. So that’s number one.
But number two is the unique reality of the current moment, which is both a national factor and a local factor. The national factor is Trump is not popular anywhere, yeah, and in a lot of places around the country that voted for Trump twice, three times. He just doesn’t have the numbers that he did. So, his ability deliver for down ballot candidates is a lot less. And it’s always been less in midterm elections.
And then the final thing Talarico: his opponent, Ken Paxton who is – it’s almost unimaginable that a major political party in the United States would nominate a candidate with so much scandal associated with him. And, you know, look, there have been Democrat Republicans who’ve tried to stop Paxton. I mean, he’s the state legislature has gone after him. He’s had primary opponents. There is opposition. Trump did back him in the primary. And he beat John Cornyn, the sitting senator who would have probably had an easy reelection run. Paxton scandals again, we don’t have a whole show to devote to. But there’s a lot, both personal, financial, political, etcetera, etcetera, etcetera. So that hurts.
On the other side is that there’s a lot of evidence that Talarico is a unique candidate – unique candidate in the recent history of the United States, because he is a young state legislator who is very comfortable talking about his faith and talking about his values, talking about morality and politics. And that makes him, I think, in many senses, almost a perfect juxtaposition to Paxton. It’s very compelling to listen to. The sense is that there’s a potential for this to get through to voters who might not otherwise be reached by a Democrat. And all this has made Texas competitive.
JW: So, the Democrat is ahead in the Texas Senate race. That’s one big flip possibility. Another flip possibility is North Carolina, where Democrat Roy Cooper is ahead by nine, according to Fox News. Another key flip state is Ohio, where that same Fox News poll has Democrat Sherrod Brown ahead by eight.
The closer races in the flip states, of course, start with my Maine, where you may recall, we had a few problems. Right now, Troy Jackson is ahead of Susan Collins in one good poll by two points. Another poll by eight points. Susan Collins has been elected for, I think it’s 29 years. So, tell us about what’s going on in Maine.
JN: Look, Maine is at least to some extent, a battleground state. It’s got an interior where there’s a lot of more conservative voters than a coastal area with a lot of more liberal voters. Collins has always had a ground to build off of. She is the last of a certain kind of New England moderate Republican. I’ve never believed she was a moderate. I put quotation marks around the word. But, she sold herself as that and that has worked for a long, long time. I’m not sure it’s working anymore. Maine has been hard hit economically. The affordability issues, which are often under discussed in national media, we all say, “oh yeah, affordability. It’s a big issue.” Then we go on to something else. In Maine that is a fundamental issue. And Collins is running her reelection campaign, “I know people in Washington. I can get things done.” Jackson is running a very, very different kind of campaign in which he is saying, “look, I am a working-class Mainer from up in a very distant, faraway part of the state, where folks, a lot of folks really struggle to get by economically.” I’ve interviewed him, I’ve seen him on stages, and he’s an experienced political figure. He’s served in the state Senate. He’s done all these things. He’s ran for governor and only narrowly lost.
But I’ll tell you, it is a compelling distinction between him and Collins. Collins is DC and she does her best to present herself as a Mainer and get out on the streets. And she’s not terrible. I mean, she’s not as out of touch as some of these politicians. But with Jackson, when he starts talking about what the race is about, it’s very, very powerful. Because one of the lines I heard him say at some point, I’ll paraphrase it, but it’s essentially, “they have taken so much from us.” And he talks about what corporations and wealthy people have done to our politics, to our governance. And he talks about just – not even having the free time to be with your family and kids anymore and things like that. It’s very human appeal. And I just think he’s hitting a mark there that makes him very viable. My sense is that he can win this race. The only counsel I’ll give you is that Collins is a master fundraiser and will have all the money in the world. And so, this will always be a very, very tight race. It’ll always be a hard race. But I do think that that’s a result where you can see Jackson win.
JW: And the other swing state that’s a flip opportunity for Democrats is Alaska. I know nothing about Alaska, but there’s a candidate named Mary Peltola running as a Democrat. The people who know Mary Peltola love her. They say she’s wonderful. And she’s narrowly ahead of the incumbent, Dan Sullivan. And the trend seems to be in her favor. What can you tell us about Alaska?
JN: It’s a great big state, my friend. Been up there a few times. Like many national reporters, I’ve jetted right in when Sarah Palin was selected for vice president.
JW: Those were the days.
JN: We all took our trips to examine the circumstances in Wasilla – of course, Palin’s hometown. Overall, it’s a state where voters actually are more willing to go unexpected directions than they tend to get credit for. And remember, this is the state where Lisa Murkowski got beaten in her own primary and then got reelected as a write-in candidate. It’s a pretty adventurous politics up there. And they have a voting system that’s fascinating, in which, you know, you put the top four candidates coming out of a primary. They had a primary and she came out way ahead, definitely with an advantage over the Republican Sullivan. To have the Democrat come out first in a primary of this kind, this all-candidates-in sort of voting — very rare.
The other thing is that the other candidates who came through, in addition to Senator Sullivan, is another guy with the same name who is also, you know. And so that’s a problem. I think maybe for Sullivan, there’s some analysts who have suggested that she’s moved to not some sort of big front runner status, but sort of a tilt D kind of status. Like she could pull it off. There’s probably no one more Alaska than Peltola. And she’s very, very comfortable talking about all of it. She is a Democrat. She’s pro-union. She’s reasonably progressive on a number of things. But I think the basic image of her that comes across is, ‘yeah, I know this person.’ If you’re in Alaska, she’s probably the best chance Alaskans, Alaska Democrats have had in a very, very long time. What this means is, because of Peltola’s strength, there is a very good chance that people will be up all night and maybe into the next day to see whether Alaska has flipped the Senate.
JW: So, the Democrats, for best chances to flip, they need to flip four seats in order to get the majority back: North Carolina, Ohio, Maine and Alaska. And Texas is kind of the freebie there. If you can get Texas. You got five and you’re in great shape, but we still need to–
JN: Throw another one in too, if I may. Sure. And that’s Iowa.
JW: Josh Turek.
JN: Yeah. I gotta tell you, ten years ago, if you asked me about Iowa, I would have said it’s a swing state, a state that Obama did well in. It’s had a Democratic governor had a Democratic senator for a very long time. It went very much for Trump. It became a state that a lot of people kind of wrote off. I think Democrats there are kind of coming back all over the place. They have the lead in the governor’s race. Turek is looking very solid in the Senate race. They might flip three House seats there.
JW: Then there’s the hold states. We need to hold Michigan. Abdul El-Sayed right now the polls show ahead by four, in the latest poll. I understand you have spoken with Abdul El-Sayed recently.
JN: I have. I’ve interviewed him a number of times over the years. In fact, we covered – at The Nation, we covered him when he ran for governor as an insurgent candidate back in 2018. With the support really not of a lot of prominent folks, except for one interesting newcomer in politics at the time Alexandria Ocasio-Cortez, who in one of her first moves after winning the congressional seat in New York, went to Michigan to campaign for El-Sayed, arguing that he was, like her, somebody who had a vision for where the Democratic Party could go and what it might be. He didn’t win that race. He was a very, very young candidate. He’s still a very young candidate, but he has come back, gotten the Senate nomination. And I will tell you the conversation that we had with him, which will be published in the upcoming issue of The Nation, Katrina vanden Heuvel and I interviewed him. It was really striking because whether you agree with him or not, whether you like him or not, this is an exceptionally well thought and well-prepared candidate no matter what issue comes up. He is excited to talk about it and he takes it deep into policy.
And the other thing about it is he’s an interesting figure because he’s very, very energetic and he’s been all over the state. He’s been outspent. He was outspent in the primary. He will probably be outspent in the general election. There are usually very few advantages to being outspent in politics, sad to say. But one advantage is that he’s spent a lot less time talking to campaign donors and a lot more time talking to voters. And of all the candidates I’ve talked to this year, he stands out because he recognizes a kind of set of issues that voters care about that don’t get talked about a lot in national media. I mean, he was way ahead on AI. It’s a pleasure to talk to him again, whether you agree with him or not, because the conversation just isn’t standard talking points. It’s a much more serious examination of where the country is at and where it needs to go.
JW: Last but not least, we have been worried about Wisconsin, where the governor’s race has been a focus for Democrats. Right now, the good poll there, the Marquette Law School poll, has Democrat David Crowley ahead of Republican Tom Tiffany by five points. Now we really need a Democratic trifecta in Wisconsin. You’ve been talking about this for a few years on this show. Remind us what Wisconsin Democrats could do with a trifecta.
JN: Wisconsin is the ultimate swing state. It’s a state where of the last six, seven presidential races — five of them were decided by about under 30,000 votes, right. It’s just this is a very competitive state. The thing that kind of warped Wisconsin politics was the 2010 election, where Scott Walker and the Republicans won the governorship and the state legislature. It was a red wave, red tide election, and they took full advantage of that, right. They got to power. They went after labor unions. They went after all sorts of structures of the state. And they gerrymandered the legislature radically so that even when Democrats got the most votes statewide for legislative races at the district level, there was almost no change because the gerrymandering was so rigid, and that gerrymandering has been upended. Courts began to examine it, and then finally, the legislature and the governor, who was currently a Democrat, a Republican legislature, and a Democratic governor, agreed to a redraw that. It’s imperfect, but it’s fair. Reasonably fair. End result is that in a fair fight, Democrats have a very, very good chance of winning the state Assembly and the state Senate. If Crowley wins the governorship, they will be able to govern at a fundamental level, not a Democratic governor saying no to a Republican legislature, but to actually implement policy, as you’ve seen in Michigan and Minnesota and other states where you have a trifecta at times, you can’t begin to imagine how much that would shift the dynamics of the state.
Crowley says his number one initiative is to undo Walker’s anti-labor bills. And so that takes us right back to this initial fight and turns us in a different direction. But the thing for national consumption that a lot of people will pay attention to is that Wisconsin has been radically gerrymandered, not just at the state legislative level, but also at the congressional level. Here you have a swing state where you’ve got, like you should have four Republican House seats, four Democratic or something like that. Instead, we got two Democratic House seats. And so, a fair redraw of the maps could have an impact on national politics in that it would very probably create several more districts that are likely to elect a Democrat and potentially even several. End result is that there’s an intensive focus on this governor’s race because of state and national potential. And you are right that Crowley has opened up a little bit of a lead. Wisconsin is a very competitive state. You have to expect that it’s going to – there will still be a real battle.
But one of the interesting dynamics of it is that the Wisconsin Democratic Party has nominated a remarkably diverse ticket, and they are leaning into that. They are leaning into mobilization of voters up in cities and small towns, among immigrant groups and sixth generation Wisconsinites. And it’s a model of a politics that is very similar to what Ben Wikler, who was the longtime chair of the state, tried to do where he basically said, “everybody who lives in Wisconsin and who wants to have economic and social and racial justice should have a way into our politics.” Right. They should have a way to participate. And he always preached a vision of a multiracial, multiethnic, multigenerational party that spoke to a lot of folks who might have been disenfranchised or disenchanted in the past — and says, “come on in, be a part of this.” And they’ve actually nominated a ticket that has the potential to do that on all sorts of levels.
The focus will be on Crowley. But in reality, my sense is that the Democrats have a rare opportunity to kind of win up and down the ballot. If they do, we’re going to be a very different state than we were back in the those many days, Jon, where I was whining to you about the difficult circumstances of my beloved home state.
JW: Democratic hopes, democratic possibilities as we go into Labor Day weekend: John Nichols, you can read him @thenation.com. John, thanks for talking with us today.
JN: It’s a great honor to be with you, my friend.