Friday, September 14, 2018

What the New York Democratic Primary Results Mean

Well the New York primaries are in the bag, and Andrew Cuomo smoked Cynthia Nixon by a 66/34 margin. The Cuomo-aligned candidates also won the downballot statewide races: Tish James soundly defeated two opponents to win the nomination for Attorney General, and Kathy Hochul held off a very spirited challenge from Jumaane Williams for the Lieutenant Governor's nod.

The news wasn't all bad for progressive challengers -- six of the eight turncoats in the IDC (a group of renegade Democrats who caucused with, and gave control of the state senate to, Republicans) lost last night. And most-scrutinized-state-senate-candidate-in-history Julia Salazar soundly defeated incumbent Martin Dilan (who was not IDC, but was viewed as a relatively conservative figure).

I had registered my predictions for some of these races, and I'd give myself a solid A- on my performance. Sure, "Cuomo will trounce Nixon" and "Felder over Morris" were chalk picks, but I give myself a little more credit for calling Salazar's comfortable win over Dilan (which I've heard described as "stunning" but which I was very confident in). My big miss was underestimating the IDC bloodbath (I set the over/under on IDC losses at "two"), but that's an area I'm happy to be proven wrong.

But enough about me. What are the larger implications of yesterday's results?

1. There really is some genuine anti-Democratic establishment sentiment coursing through the deepest-blue turf.

There have been more than a couple locales where candidates the left has been deeply excited about have won by either knocking off incumbents or beating more establishment-oriented candidates -- Alexandria Ocasio-Cortez is the obvious one, along with Ayanna Pressley in Massachusetts, Ilhan Omar in Minnesota, and last night Julia Salazar in Brooklyn. All of these races occurred in very similar types of district -- urban, very blue, cosmopolitan, and highly diverse. That's why Salazar's victory didn't surprise me -- her district fit the profile for where candidates like her have done very, very well this cycle.

2. This sentiment, so far, is not translating to Democratic politics on a broader -- statewide or larger -- basis.

While progressive insurgents have certainly won some high-profile successes, they've also been rather limited in scope. This is the flip-side of the "very similar types of district" argument: the left wave hasn't really gotten any momentum outside of these very friendly, urban environments. It's not just that Nixon lost last night -- a Nixon victory was always a long-shot. But it is quite notable that Nixon actually didn't improve on Zephyr Teachout's 2014 performance against Cuomo -- despite garnering a lot more media attention and working in a far more favorable political environment.

This isn't to say progressives haven't notched some victories in statewide races -- Ben Jealous in Maryland and Andrew Gillum in Florida certainly qualify. But Democratic incumbents on a state level -- Senators and Governors -- have had no trouble turning back progressive challengers.

It's important not to overintepret either of the above against each other. On the one hand, there really is a noticeable shift in Democratic politics occurring in the types of locales where Ocasio-Cortez or Salazar are winning. It's more than idiosyncratic, and it's wrong to dismiss it. On the other hand, it is a shift that so far is confined -- it isn't all places or all Democrats (there's an annoying heads-I-win-tails-you-lose quality to some progressive analyses of, e.g., New York, wherein Julia Salazar's victory shows that what the people really want is Democratic Socialism, and Andrew Cuomo's victory shows that the Democratic Party is hard at work suppressing what the people really want, Democratic Socialism).

3. For the most part, primary challengers are doing their job.

My view on primaries is that they should serve two important purposes. First, punish bad guys. And second, push incumbents to adopt better positions. On that score, I'd say that the results in New York were a rousing success.

Start with the latter metric. No, Nixon didn't win, but she absolutely pushed Cuomo to adopt a raft of more liberal positions, and that's almost as much of a victory as if she'd actually assumed office (one could argue that, given Nixon's lack of actual political or administrative experience, it's a better outcome. A savvy political operator like Cuomo pushing progressive policies may well accomplish more than a well-meaning but inexperienced novice like Nixon). That's the thing about establishment politicians -- if the established wisdom shifts, they'll follow right along.

And on the "punishing bad guys" front, the IDC bloodbath is beautiful political justice. Moreover, I do think that Nixon's campaign helped bring attention and energy to that campaign too (notably, while many of the IDC incumbents occupied districts that were of the left-friendly type I identified above, there was more diversity there -- David Valesky lost his Syracuse area seat, for example, and IDC leader Jeffrey Klein represents a mixed district encompassing parts of the Bronx but also Westchester County). Six Democrats who deserved to lose, lost. And I highly doubt the two IDC survivors will return to similar shenanigans in the future.

The interesting thing about primary challenges is that they can win even if they lose. Sometimes, entrenched incumbents need a scare put in them. A close primary fight keeps them honest, and ensures that they stay inline with where Democratic politics are going.

So overall, I consider last night to have been a heartening display. Sure, there are some incumbents who survived when I might've rather watched them go down in flames. But there were some instances of righteous retribution and, perhaps more importantly, those who survived the ordeal will emerge wiser for it. I think 2018 will be a very good year for progressive politics in New York -- in part because of who won, but maybe in large part based on who came to fight.

Wednesday, September 12, 2018

The Rutgers Antisemitism Investigation Isn't About Free Speech, But it is About "Free Speech"

Last week, the Department of Education announced it was reopening an investigation into alleged antisemitism at Rutgers University. This has led to some consternation -- see this very skeptical New York Times article or this statement of condemnation by J Street -- and the usual fretting that it represents an attack on "free speech". The case is being looped into larger discussions about the Antisemitism Awareness Act, the State Department/IHRA antisemitism definition, and when anti-Israel sentiment crosses into discriminatory antisemitism generally.

But the Rutgers case is a very different animal than how it's being portrayed. The legal (as opposed to factual) questions it poses do not appear related to any disputes about the ASAA or the State Department definition, do not implicate free speech concerns at all, and really should not be controversial to anyone who thinks rules against antisemitism are anything more than pro forma.

Let's start with J Street's statement:
The initial Rutgers investigation into an event held by a Palestinian group on campus was triggered by a complaint from the Zionist Organization of America (ZOA) — an ultra-right group that has sought to suppress virtually all activities critical of Israeli government policy, and which regularly traffics in anti-Palestinian and anti-Muslim bigotry. The complaint was thoroughly investigated and dismissed by the DOE in 2014. Its reopening is not about upholding civil rights or a serious effort to combat anti-Semitism, but about advancing a right-wing agenda that seeks to silence open discussion and debate of the Israeli-Palestinian conflict.
To do so, the Trump administration intends to wield a controversial definition of anti-Semitism that equates criticism of Zionism with anti-Semitism — and which was never intended for use on college campuses.... At J Street, we strongly oppose anti-Semitism in all of its forms. We work to challenge ill-informed criticism of Israel and Zionism — including on college campuses, through the efforts of our student movement J Street U. We strongly believe that such criticisms can and must be treated as constitutionally-protected free speech — not banned and punished by Congress or the executive branch. 
As you might expect, I have no quarrel with how ZOA is described here. But it is notable that the statement gives zero details on what the investigation is, you know, investigating. Instead, it just vaguely complains about a chilling effect on free speech, and asserts its opposition to any efforts to "ban and punish" such speech -- along with a shot at the State Department/IHRA "definition" of antisemitism which they likewise accuse of silencing "criticism of Zionism" (I'll sidebar here and say no, the State definition does not "equate criticism of Zionism with anti-Semitism" -- indeed, it does not mention "Zionism" at all -- and given the central role that canard is currently playing in the UK Labour antisemitism disaster-show it's not a good look for J Street to just casually drop in on the side of the Corbynistas).

And that's a problem, because while the J Street statement invokes the scary prospect of government regulators stepping in to "ban" speech, from what I can tell (and unfortunately I haven't been able to get my hands on the letter DoE civil rights head Ken Marcus sent reopening the investigation, so I'm relying on media reports) the Rutgers investigation isn't investigating or targeting anyone's speech at all. And neither does it (or at least must it) rely upon the State Department/IHRA antisemitism definition to get its wheels going.

As it is being reported, the renewed investigation of Rutgers looks at only one incident: allegations that a pro-Palestinian event, initially advertised as free and open to the public, began charging admission fees upon perceiving that many of those seeking entrance were Jewish and/or Israeli (and accordingly committed either ethnic or national origin based discrimination). The key bit of evidence is an email by one of the organizers saying "We need to start charging because 150 Zionists just showed up!" but that “if someone looks like a supporter, they can get in for free" (this email wasn't considered in the initial agency decision, hence why the matter is being reopened). The argument is that, in this context, "Zionist" stood in for "Jewish" (or "Israeli").

Now, whatever else you want to say about this allegation, it simply isn't a free speech case. Questions about when "speech" becomes a form of discriminatory harassment are among the most difficult ones courts and civil rights agencies have to grapple with. There are cases like that -- ones where, e.g., Jewish students are alleging that a given speaker's words (whether directed at Israel or something else) created a hostile environment that interferes with their full and equal access to a public good. And those cases really do raise genuinely difficult and nettlesome free speech questions.

But this case isn't one of them. The DoE is not investigating any claim that the speaker at this event said certain bad words about Israel or Jews which qualify as discriminatory. The investigation is into a much more run-of-the-mill form of discrimination: Charging differential rates to Jews versus non-Jews, or hiking prices because too many Jews were showing up, is discrimination in its most uncomplicated and unproblematic guise. It just cannot be the case that J Street thinks that requiring public events to not hike prices when the Jews show up constitutes "silencing" of anti-Israel speech.

Now, of course, while hiking prices because too many Jews are showing up is definitely discriminatory, it is entirely fair to say that the email quoted above, in the abstract, does not provide unambiguous evidence that this is what happened. The argument in favor, as Marcus expressed, runs thus:
“In other words, the visual perception of a group of ‘150 Zionists’ referenced in the email could have been rooted in a perception of Jewish ancestry or ethnic characteristics common to the group,” Marcus wrote, adding that it was unlikely organizers polled each of the 150 entrants on their views regarding Israel. “In cases such as this, it is important to determine whether terms such as ‘Zionist’ are actually code for ‘Jewish.’”
The letter also noted that some students who reported being charged had a Jewish appearance (like wearing a yarmulke, for example).
Basically, while it's not clear how the organizers would know that attendees looked "Zionist", they perhaps could tell that the prospective attendees looked Jewish -- because they had on religious garb, for example, or perhaps had Hebrew-language clothing. Consequently, it is fair to infer that what really triggered the email was the Jewish (or Israeli) appearance of the guests, not their alleged Zionism (or put more finely, the organizers saw a bunch of unfamiliar Jews, figured they must be Zionists, and responded by raising prices). And if that inference holds up, then one has a very straightforward case of antisemitic discrimination.

[A parallel example might help illustrate. A "Men's Rights" organization on campus hosts an anti-feminist speaker known to be controversial. People start to arrive before the speech, and this initial group is predominantly -- though not exclusively -- male (and, perhaps, people generally known by the organizers to be sympathetic to the speaker). But a few moments later, a huge crowd of women arrive in line to hear the talk. An organizer panics, and sends an email: "we need to start charging -- 150 feminists just showed up". Is this sex discrimination? I think plausibly. The organizer doesn't actually know the political orientation of the new arrivals. What he sees is their gender, and then makes an inference regarding their politics (and their favorability towards the speaker) based on that, which is used to justify raising prices. To me, that'd be sex discrimination. And it'd still be sex discrimination even if a few "cool girls" were involved in the hosting of the speaker].

"Zionist", of course, doesn't always equal "Jewish". But sometimes it does, and frequently enough so that in cases like this it's worth looking into as a possibility. And in particular, there are elements in the record here that make it especially likely that "Zionist" was functioning as "Jewish" (similar reasoning is how we can infer that Jeremy Corbyn was using "Zionist" as a stand-in for "Jewish" when he spoke of people who'd lived in England "all their lives" and yet didn't understand "English irony"). The reliance on visual perception -- how does one "look" like a Zionist without "looking" like a Jew -- significantly strengthens the inference that the Jewishness of the prospective attendees was doing dispositive work.

The basic principle -- that "Zionist" sometimes can be used as a code for "Jew", and that consequently the naked use of the word "Zionist" doesn't act as a definitive defense against an antisemitism claim -- should not be controversial and is something I can't imagine J Street actually disagrees with. If one needs the State Department definition of antisemitism to operationalize that principle, that's a huge point in favor of codifying the definition -- but I actually don't think the State definition is necessary to get us there, because again, the structure of the antisemitism claim here actually isn't that complex (here in particular I wish I had Marcus' letter, as I'm curious what work the State Department definition is purportedly doing for the investigation).

Still, perhaps it does illustrate what I've sometimes termed the "cleansing power of anti-Zionism" -- the inversion of the classic "not all criticism of Israel is antisemitic" argument into the much more robust "if something is framed as criticism of Israel, then ipso facto it is not antisemitic." That move is one that it is very important to check, and the ease at which people fall into that groove is perhaps strong evidence of why a more rigorous definition of antisemitism absolutely is required.

Now, I've been treating these allegations as if they were affirmatively established, and they're not. It's possible the email in question wasn't written by an event organizer, or that if it was written it wasn't the cause of the decision to charge for admission, or that there is some other evidence that the Jewish or Israeli character of the prospective attendees was irrelevant to how the pricing change proceeded. My (very) quick glance at the record suggests that some of these defenses might have legs. But there is a huge difference between dismissing this complaint because (say) the email in question didn't cause the pricing change, and dismissing it because in concept the pricing change could not have been antisemitic because the email used the word "Zionist" rather than "Jewish". That's a spectacularly dangerous precedent to set, and so it's disappointing that J Street seems willing to go down that road in a statement that doesn't even seem to recognize the stakes on the table.

Put another way, it's entirely reasonable to contest the alleged facts here. But there are to my eyes only two substantive legal questions at issue:

  1. Does hiking admissions prices based on the perception that too many Jews are attending an event qualify as anti-Jewish discrimination; and
  2. Can, in concept, "Zionist" be seen as a stand-in for "Jewish" when assessing whether a given act was discrimination against Jews?

The answer to both of these has to be yes. It would be really, really bad if a civil rights agency answered "no" to either of these questions, which means it's really important that, however the investigation ultimately is resolved, it makes clear that it is not giving such a negative answer.

Finally, I want to circle back to the "free speech" focus. Again, on substance the Rutgers investigation just doesn't have anything to do with speech. Either the organizers hiked prices in response to perceived Jewish attendance, in which case it is a straightforward case of antisemitism, or they didn't, and it isn't. Speech just doesn't come into play. Which raises the question: Why did J Street and others instinctively run to that well?

There's recently been a raft of scholarship on what's been called the "New Lochnerism" or "First Amendment Lochnerism". For those of you who haven't suffered through law school, Lochner was a turn-of-the-century Supreme Court case which stands in for a judicial era where courts repeatedly struck down progressive economic and social regulations. For decades, popular democratic legislation protecting workers was strangled by a deeply activist Supreme Court's interpretation of the Fourteenth Amendment's due process requirements. The "New Lochnerism" perceives a similar trend today with respect to the First Amendment, which is also slowly being weaponized to undo progressive electoral accomplishments recast as forms of compelled speech. Janus (public-sector union agency fees) is one prominent example, Citizens United (campaign finance) is another, Masterpiece Cakeshop (anti-gay discrimination) is a third.

Discrimination law is particularly vulnerable to this line of argument, because discrimination claims almost always implicate expressive values. I've been saying that the Rutgers case clearly isn't about speech, but a clever philosopher could reframe it that way with little trouble: "I dislike X group, and the way I express my dislike for them is by charging them more money if they want to attend my events." Or "I express my dislike by refusing to hire them" or "I express my dislike by refusing to do business with them." If one accepts that frame, pretty much all anti-discrimination law represents a First Amendment threat: one is being forced to associate with people one would rather not, and one is foreclosed from acting based on specific (discriminatory) motives when other viewpoints are entirely permissible bases for action.

Fortunately, courts have not taken things that far. But the New Lochnerism suggests a growing trend in that direction, and the hysteria over the Rutgers case fits right inside of it. In my writings on antisemitism and discrimination law more broadly, I've emphasized how certain patterns of discourse about antisemitism reflect broader conservative legal trends that threaten a raft of progressive priorities -- not just an antisemitism, but on anti-racism, anti-sexism, anti-Islamophobia (the interpretation that encompasses Jews under Title VI and gives the DoE jurisdiction over the Rutgers case in the first place is the same one that enables anti-Muslim bigotry to be covered), and other bases as well. That "progressives" don't recognize or don't care about these parallels is either remarkably short-sighted or remarkably dangerous.

The Rutgers case isn't about free speech -- there is no free speech interest in raising prices because you're worried too many Jews will be in the room otherwise. But it is about "free speech", the totemic invocation that anytime, anywhere, anyway that outgroups allege they face discrimination, what's really happening is a form of silencing. It's a powerful argument, and therefore a tempting argument -- even in cases like this, where it doesn't remotely fit the facts. But that doesn't make it a good argument. It leads to a very particular, and very unlovely, end point.

There are discursive tropes which suggest that White people are being "silenced" by overbearing, overexpansive, all-encompassing accusations of racism. These tropes in turn support a backlash against anti-racism efforts across the board. There are also tropes which suggest that men are being silenced by overbearing, overexpansive, all-encompassing accusations of sexism; these support a backlash against anti-sexism efforts across the board. And there are identical tropes which suggest that non-Jews are being silenced by overbearing, overexpansive, all-encompassing accusations of antisemitism; these, too, power a backlash against counter-antisemitism efforts globally.

There isn't necessarily perfect overlap between those who find these various tropes appealing. But they're all based on the same principle, and together they all entrench a particular moral and legal vision of anti-discrimination law that is hobbled to the point of impotency. One can't indulge in the one without getting all the rest.

Tuesday, September 11, 2018

New York State Politics Quick Picks

New Yorkers go to the polls on Thursday, choosing primary candidates for state races (the federal primaries -- where, famously, Alexandria Ocasio-Cortez knocked off Rep. Joe Crowley -- were held on a separate date).

I'm not a New Yorker, but I still will venture some predictions on a couple of races of note. To be clear, these are predictions, not endorsements -- I'm saying who I think will win, not who I'd like to win.

Governor's race (Cuomo vs. Nixon)

I've always been a "hey, all the Democratic candidates are basically fine, so don't sweat it if your guy loses the primary" sort of guy. That was true in the 2008 presidential primary, and it was true in the 2016 presidential primary. Many people think Cuomo has been gearing up for a 2020 run, and if he was somehow nominated .... boy, would that test my commitment to the principle (for the record: yes, if by some Bad Place horror-show we're faced with a Cuomo/Trump race in 2020, vote for Cuomo).

Cuomo is one of my least favorite prominent Democratic pols. He's heavy-handed, he's entirely happy to keep Albany's dysfunctional machine intact so long as he holds its reins, and he's worked to stymie progressive priorities throughout his tenure (his fingerprints are all over the repulsive IDC traitors who gave Republicans control over the State Senate -- more on them in a moment).

The good news is, I think Cuomo has been sufficiently damaged that his 2020 ambitions are dead in the water. The bad news is, I think he's going to win his primary this week. I'm not a huge fan of celebrity candidacies, and at times Cynthia Nixon has sounded more like a speak-and-spell of d'jour lefty talking points than an independent personality. Still, I have no doubt she'd make a competent governor, and given how wretched I find Cuomo that's more than enough to justify casting a ballot in her favor. Plus, some of those rote-repeated talking points are actually pretty good policy!

But Nixon has badly lagged in the polls, and her campaign has never gotten much traction upstate. Backers will point to other prominent polling "misses" recently, e.g., Andrew Gillum in Florida or Ayanna Pressley in Massachusetts, where left-wing candidates have blown past expectations in Democratic primaries. But those races either have been (a) open races (Gillum) or (b) single-district elections in deep blue, urban turf (Pressley, Ocasio-Cortez). We haven't seen anti-establishment anger translate into a Democratic incumbent losing statewide yet, and (regrettably) I don't see that changing. Nixon got a late gift with a ill-conceived state party mailer tying her to antisemitism (when even Dov Hikind thinks you've gone too far....), which will only further inflame her base and emphasizes the really grimy nature of the New York Democratic establishment, but I don't think it will be enough.

New York State Senate

A couple of races here have gotten some national attention. The most important, in my eyes, are the challenges to eight former members of the Independent Democratic Conference, a group of breakaway Democrats who until recently caucused with Republicans and gave them control of the state senate (despite a nominal Democratic majority). It was dirty Albany politics at its worst, and in this Trumpist era Democratic primary voters are in no mood for collaborationists. I hope all of them go down, and hard.

Unfortunately, I've seen no polling in these races and the IDC members are scattered among very different districts all across the state. So it's hard to draw any general predictions about whether they'll win or lose. If I had to venture a guess, I'd say that a few scalps will be claimed but that most are going to survive. In a sense, it's a shame that these races haven't gotten the attention of a certain other NY state senate race, since a sense of national momentum could've made all the difference. Alas.

Said "other" race, of course, is the ab-so-lutely wild contest where Julia Salazar, a working-class(?) Jewish(?) immigrant(?) democratic socialist (pretty sure on that, one at least for now) is challenging incumbent Martin Dilan. Every other day seems to bring a new revelation, each more nuts than the last (the most recent is that she's about to be outed as a sexual assault survivor which -- not cool, whoever's doing the outing).

Of course, with Salazar getting all the focus, I was left wondering what exactly was the deal with Dilan. He's not, to my surprise, IDC, which was my initial assumption for why he'd be the subject of such intense progressive vitriol. The line I've heard more recently is that Dilan is seen as too close to developers, though I haven't gotten much more details than that.

One might think that all of this negative press might kneecap Salazar's chances. But I think she's going to win, and going to do so handily. Rightly or wrongly, I think Salazar's backers think of this negative press as a smear campaign that targeting a non-establishment progressive, and so if anything it will make them more enthusiastic about her chances. And while I don't think an AOC or Pressley style insurgency can overcome incumbency advantages statewide in New York, the Brooklyn area that Salazar is running is another matter entirely. Plus, Dilan (again, for whatever reason) doesn't seem to be that popular in his district -- his last challenger got 41% against him, and 2018 is shaping up to be a much better year for candidates of Salazar's ilk.

Finally, there's one other New York State Senate race worthy of mention, also falling in the "technically not-IDC" category. That would be incumbent Simcha Felder's contest against challenger Blake Morris. Felder isn't IDC, but only because he caucuses with the Republican Party outright despite nominally running on a Democratic line. That turncoat status was enough for the New York Times to endorse Morris.

Felder represents a heavily Orthodox Jewish district in New York (including Boro Park), and has distinguished himself by fighting against state oversight of Yeshiva education (alongside an otherwise generally conservative, if unremarkable, voting record). Morris, a secular Jew, says he's counting on "secret" Orthodox Jewish opposition to Felder to ride to victory. Call me old-fashioned, but I prefer to see public signs that a challenger has backing in his community before I predict an upset. I think the Orthodox community will stick with Felder, and he will continue to be a massive thorn in the side of the Democratic caucus in Albany.

Short version:

Cuomo over Nixon

Salazar over Dilan

Felder over Morris

Over/under IDC candidates defeated: Two