Elon Musk tries to dismantle the foundations of US democracy
From blatant election interference to ending the NLRB, he's doing all kinds of damage.
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Elon Musk is busy. No, not because he’s attending to any of his multibillion-dollar companies.
For Tesla and SpaceX and Starlink, he’s full of wild promises with very little actual progress. But what Musk is really spending time on these days is attacking the core foundations of American democracy on multiple fronts.
There’s his thus-far successful effort to get rid of the National Labor Relations Board (NLRB). There’s his political action committee, America PAC, which pretends to help register people to vote but is just hoovering up voter data to give to the Trump campaign. And there’s his lawsuit seeking to force companies to advertise on X, despite the fact advertisers generally do not want their ads running next to the Nazi content X is full of now.
All of these efforts have the potential to succeed because the federal courts are broken, and the administrative state is dying a slow and painful death.
Immiserating workers
Let’s start with the NLRB.
It’s no surprise that Musk is no friend to labor. He doesn’t believe in unions, saying that they create “a lords and peasants sort of thing,” whatever that means. When workers at his Fremont, California, plant began an organizing campaign, he tweeted that they would lose their stock options if they joined the union. This sort of threat is extremely illegal, and the NLRB sided with the workers who brought multiple unfair labor practices charges against Tesla.
Tesla also prohibited workers from wearing t-shirts with union insignias, even though the right to wear pro-union clothing at work has been a legally protected activity for several decades. Then, of course, there’s the class-action lawsuit in California state court, where almost 6,000 Black workers at the Fremont factory recently got the right to sue Tesla for ignoring massive racism at that plant. How massive? Nooses at the workstations of Black workers massive.
Of course, why follow the law when the lower federal courts are now stuffed with anti-worker Federalist Society denizens and the Supreme Court just gutted the regulatory state? After the NLRB filed a formal complaint against SpaceX over its firing of several employees who wrote an internal letter critical of Musk, SpaceX made sure to find a friendly Trump-appointed judge in Texas, Alan Albright, to entertain its theory that the NLRB itself is unconstitutional.
In late July, Albright issued an injunction blocking the NLRB from proceeding against SpaceX, saying that it is likely the company would prevail in showing that the NLRB, which was created by Congress nearly 90 years ago, impermissibly infringes on the president’s power. Members of the NLRB board and the Administrative Law Judges (ALJ) cannot be removed by the president. That insulation from removal, of course, is critical, as otherwise the NLRB would basically cease to exist every time a Republican president takes power.
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Narrowly, Albright’s holding means that the NLRB can’t go after Musk until the constitutional issue is resolved. Broadly, Albright’s holding tees up the possibility that the anti-worker judges of the Fifth Circuit Court of Appeals and the conservative majority on the Supreme Court will have an opportunity to just get rid of labor protections entirely.
Given the composition of the courts, Musk doesn’t need Trump to win this November to succeed at wiping a nearly century-old agency off the map. But Musk, of course, is all in on Trump, despite places like the New York Times pretending the man’s politics are a mystery. Musk has also learned that he’s basically untouchable, which is likely why his America PAC is flagrantly deceiving voters. There will probably be no consequences for Musk at all.
A scam PAC
America PAC purports to help people register to vote. If you live in a state that isn’t a swing state, that’s what the PAC’s website does — sends you over to your state’s voter registration page. But if you live somewhere in play this November, the America PAC website asks you for detailed personal information, including things utterly unrelated to voter eligibility, like your cellphone number.
After all that is entered, the PAC doesn’t register you at all. It doesn’t even send the user to their state registration website. It just displays a “thank you” page.
So, swing state voters may think they’re registering, but they’re not. Instead, they’ve handed over their data to a PAC that is coordinating with the Trump campaign. While PACs are generally not allowed to work directly with campaigns, America PAC is a door-to-door canvassing group, and those, inexplicably, can work hand in hand with a candidate. However, pretending to register people to vote is probably a bridge too far.
The Michigan Secretary of State’s office is in the early stages of an investigation of the PAC. So is the North Carolina Attorney General’s Office, as in North Carolina, it’s an actual crime to say you’re submitting someone’s voter registration form and then not do so, which is pretty close to what Musk’s PAC is doing.
The problem here is the relative toothlessness and extreme slowness of American jurisprudence when it comes to election violations.
Remember Jacob Wohl? A sort of poor man’s James O’Keefe, Wohl and conservative lobbyist Jack Burkman placed tens of thousands of robocalls trying to intimidate Black voters into staying home during the 2020 election. Two full years later, Wohl and Burkman pleaded guilty in Ohio, getting probation, an ankle monitor, a requirement they spend 500 hours registering voters, and a whopping $2,500 fine.
It took the Federal Communications Commission nearly three years to issue them a $5.1 million fine and four years for New York state to get an agreement from the pair to pay $1.2 million. None of that undoes the damage they may have caused in 2020, and while those fines might be a bit much for Wohl and Burkman, it’s pocket change to Musk.
Suing advertisers
Mr. Free Speech is also availing himself of the courts to try to force companies to advertise on X.
On Tuesday, X filed a lawsuit against the World Federation of Advertisers (WFA), an advertising trade group, in the Wichita Falls Division of the Northern District of Texas. Why Wichita Falls, some 300 miles from Austin, where Tesla is located? Because the Northern District of Texas enthusiastically embraces judge shopping, and every case in Wichita Falls goes to Reed O’Connor, a George W. Bush appointee who routinely tries to throw out the whole of the Affordable Care Act and is a reliable vote for anything conservatives want. (The WFA announced Thursday that it’s shutting down because it does not have the financial resources to fight X in court.)
Musk already has another case before Reed O’Connor on a similarly twisted legal theory.
Late last year, X sued Media Matters in O’Connor’s court after Media Matters accurately pointed out that ads were appearing next to the Nazi and white nationalist content that is rife on X now. That case shouldn’t exist, period, and it especially shouldn’t be in O’Connor’s courtroom. As Mike Masnick pointed out over at Techdirt, X is incorporated in Nevada, with headquarters in California. Media Matters is in DC, and the Media Matters writer named in the suit is in Maryland.
The only connection to Texas is that Reed O’Connor is very friendly to conservatives. And O’Connor has already proven himself eager to help Musk along. Although he’s a Tesla shareholder, he has not recused himself from the case. And even though Media Matters has a pending motion to dismiss precisely because the lawsuit should not be in Texas, O’Connor refused to stay discovery, which means Media Matters is racking up litigation costs while O’Connor sits on the motion to dismiss, pending since March.
Back to the advertisers and X’s latest lawsuit. X CEO Linda Yaccarino did an “open letter” explaining why X is suing the WFA, the Global Alliance for Responsible Media, and four individual companies — CVS Health, Mars, Orsted, and Unilever. It’s an antitrust lawsuit over what X calls an “illegal boycott” that has “cost X billions of dollars.” How dare companies not advertise on X, which Yaccarino calls a “unique, dynamic, and safe environment”? The failure of private companies to give Musk and Yaccarino money is, per Yaccarino, “threatening your global town square.”
Had the federal courts not gone full Calvinball over the last several years, it would be easy to say this nonsense would be thrown out. These are private companies, and to the extent they are boycotting X, they have a First Amendment right to do so — in two ways.
First, boycotts based on political reasons, such as not wanting to support Nazis, are considered protected speech. Next, the First Amendment provides for freedom of association and freedom from association. You aren’t obliged to engage in speech you find morally repugnant or spend money subsidizing someone else’s speech you find repugnant. Indeed, that concept is at the heart of so much litigation by evangelical conservatives who don’t want to bake a cake for a same-sex couple or allow their insurer to provide birth control for their employees. But don’t expect Reed O’Connor or any other conservative judges to display the same tender concern for Media Matters or companies that don’t want their ads to run next to hate speech.
Musk is, without a doubt, a uniquely terrible individual. While his wealth and fame would always insulate him from some level of consequences, thanks to the dysfunctional federal judiciary, these days, he can truly thrive.
That’s it for today
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All this adds to the mountain of reasons I quit Twitter a couple of years ago. The man is a walking cesspool. If I owned a Tesla, I’d be tempted to let it self drive over a cliff.
"There’s his political action committee, America PAC, which pretends to help register people to vote but is just hoovering up voter data to give to the Trump campaign."
Underestimate the importance of this strategy at your own risk.
This is how Trump stole the 2016 election through Cambridge Analytica: target voters in key swing states to dilute the voting pool to favor Trump.
Trump knows his only path to the WH is to declare the election stolen through fraud, and nothing helps him more than a close match and a 6-3 SCOTUS vote.