Guest Post by E.C. Knight
By the end of June, the Supreme Court will release a decision in its blockbuster abortion case, Dobbs v. Whole Woman’s Health. If President Trump’s three Federalist Society-approved appointees don’t lay waste to Roe v. Wade, then go ahead and write the conservative legal movement’s obituary. All those seminars, speakers, and subsidized lunches—and for what? Some modest trimming around the edges of the Administrative State and Congress’ Commerce Clause power?
Set that defeatist thought to the side for the moment. Assume Justices Gorsuch, Kavanaugh, and Barrett don’t blink, and that they deal a death blow to Roe. Instantly, abortion will be illegal in more than a dozen States. And that’s that, right? Not exactly.
Woke Kapital, the constellation of left-wing, Globalist American Empire-aligned, state-connected businesses, is not about to leave Red State America alone to govern itself. Look at the corporate response to Texas’ abortion law last year. The ride-share app Lyft decried Texas’ law as “incompatible with people’s basic rights to privacy, our community guidelines, the spirit of rideshare, and our values as a company.” Sensing Roe’s days might be numbered, Business Forward, a left-leaning Chamber-of-Commerce-style group (or do I repeat myself?), published a piece in Fortune last summer encouraging corporate leaders to “call and meet with elected officials at all levels to let them know that abortion restrictions, including bans and trigger laws, have a negative impact on the current and prospective workforce in their state.”
Woke Kapital is savvy enough to couch its objections in corporate-speak, at least for now. Others are content to dispense with happy-talk, and explicitly call for something Revolver has been tracking for some time now: the Left’s embrace of using the resources and tactics of the national security state against domestic political enemies. According to this view, Red States that dare to govern in a way the New York Times disapproves of “ought to be” the targets of “a Russia-style sanctions campaign.”
Since Ohio, Florida, Texas, Tennessee, and Oklahoma have publicly declared themselves to be terrorist states targeting LGBTQ, abortion seekers, and young girls, there ought to be a Russia-style sanctions campaign against them.
— Robert 'I stand with Ukraine' Cain ?? ?? ?? (@TheRobCain) April 6, 2022
One Twitter bluecheck wondered exactly that: Why, he asked, isn’t the press trying to turn Red America into another Russia or another Iran?
Republican states are terrorizing queer kids, locking up women for having abortions, and putting bounties on anyone that helps them.
If it were happening elsewhere, the media would be calling for sanctions and war. When will the press cover the GOP like the fascists they are?
— Elon Musk Is A Union-Buster (@jordanzakarin) April 9, 2022
If your domestic political opponents are terrorists, why wouldn’t you use all the powers of the surveillance state to extinguish the threat? And how can Woke Kapital do anything but punish America’s Putin-adjacent unwashed through de-platforming, de-banking, and a variety of other measures? Even if the Supreme Court caves on Roe, wishful thinking and wonkery is not going to stop this.
For years, the preferred conservative response to Woke Kapital has simply been to rake it over the coals for its double standards and hypocrisy. But while this strategy might boost Fox News ratings, it is politically useless. Is Woke Kapital chock-full of hypocrites? Of course. Sure, Disney and the NBA have extensive economic ties with Communist China. Yes, Apple makes phones and Nike produces shoes in Chinese sweatshops.
But what of it? Suppose every woke corporation took complaints about China to heart and pulled back their investments there. Would that make your life any better? Would that make Woke Kapital any less of a problem in America, the country you live in? Of course not. Even if Disney and Apple shut down all their Chinese operations tomorrow, they would still be key parts of a vast machine that pumps propaganda into every facet of your life and makes a mockery of rights like freedom of speech.
So move beyond the hypocrisy and the whataboutism, and govern. Republicans can sit back and watch their voters suffer. Or they can take the fight to Woke Kapital, and win.
A Profile in Cowardice
First, a case study in how not to handle Woke Kapital.
While discussing the ongoing War in Ukraine, Vice President Mike Pence told an audience at the University of Virginia that when he “met Vladimir Putin,” he “stood toe to toe with him” and told the Russian president “things he didn’t want to hear.”
“Putin only understands strength and America must meet this moment with American strength,” Pence said.
Pence has a point: If America wants to confront an adversary, it pays to signal strength rather than weakness. But there is nothing strong about Pence’s approach to Woke Kapital.
In 2015, while he was serving as Governor of Indiana, Pence signed a state version of the federal Religious Freedom Restoration Act. Among other things, that statute would have allowed religious businesses to use the Act to fend off discrimination lawsuits like those repeatedly brought against Colorado cake baker Jack Phillips.
The law brought the Right’s fusionist coalition together. There was something in it for religious conservatives and they’re-all-private-companies libertarians. Indiana’s law was so modest and respectable that even National Review’s Rich Lowry penned a defense of it.
And then Woke Kapital came calling. Apple CEO Tim Cook said he was “deeply disappointed in Indiana’s new law.” Drug manufacturer Eli Lilly complained that it would hamper the company’s “ability to attract and retain employees.” SalesForce’s CEO went further, calling the law an “outrage,” and promising that the company would “dramatically reduce” its investments in Indiana as a result. Star Trek actor George Takei called the law “bigotry, cloaked as religious protection.”
With his voters’ interests on the line, did Pence go “toe to toe” with Woke Kapital like he did with Putin? Did Pence tell Tim Cook “things he didn’t want to hear?” Did Pence “meet this moment with American strength?”
Of course not. Pence caved. He could face down Putin, but not Ensign Sulu. David French of all people later called Pence’s capitulation “an act of surprising and consequential weakness” that would have an “enduring and bitter cultural and political legacy.”
Pols like Pence are always lions when it comes to foreign confrontation, but lambs when it comes to taking on America’s elite here at home. While they love to cloak themselves in the mantle of Christianity, the bravery of past Christians like St. Ambrose or Martin Luther, who risked their lives against powerful political enemies, is entirely alien to them.
But there is good news: If Mike Pence and his ilk were strong and we were still losing, we might conclude that defeat is inevitable. But instead, they are weak. Woke Kapital is not invincible. It simply has never been properly challenged at all. MAGA can win. Here are four ways to fight back.
Red States Must Follow in Elon Musk’s Footsteps, and Embrace an Activist Investor Mindset
If you can’t beat them, own them. That’s at the heart of Elon Musk’s daring takeover of Twitter. Revolver has correctly called Twitter’s fight with the South African industrialist “the battle of the century,” while noting the many challenges facing Musk’s attempts to change the company’s censorship program. During his April 12 monologue, Tucker Carlson floated the idea of “the pro-free speech public” buying Twitter shares and giving their proxy votes to Musk.
What if red states, and not just Republican voters, accepted Tucker’s invitation and followed the Musk model? The Florida Retirement System Pension Plan is sitting on $202 billion in assets. Texas manages another $35 billion on behalf of State employees and retirees. Ohio, Alabama, and South Carolina, states President Trump carried handily in 2020, all have a combined $180 billion in additional assets. These retirement systems are already invested in public company stocks to the tune of billions of dollars. Twitter’s entire market capitalization of $31 billion represents around seven percent of the combined assets of these states.
Imagine a red-state-owned Twitter. With the backing of whole states, Musk’s efforts to bring free speech back to Twitter would still have been a challenge, but not as difficult of one.
And why stop at Twitter at all? There are plenty of other companies worth a look as well. Before Musk’s successful buyout went through, Florida Governor Ron DeSantis told reporters the state was exploring ways to hold Twitter’s Board of Directors accountable for “breaching their fiduciary duty” by trying to block the purchase.
DeSantis’ threat shouldn’t be forgotten just because Musk’s purchase campaign succeeded. Instead, it should be the beginning of red state shareholder activism. Red state-managed funds have equity stakes in many other public companies. Think of companies like Procter and Gamble, Coca-Cola, and others. Red state shareholders should be aiming for board seats on these public companies, from which they can carry out a frontal assault on corporate wokeness.
Imagine red state-led, corporate-initiated bans on diversity, inclusion, and equity trainings and support for Planned Parenthood. Imagine opening the corporate email vaults to expose Woke Kapital’s contempt for their own customers and support for left-wing causes. Imagine proposals to shareholders to ban corporate training in critical race theory. It’s all possible, using the same mechanisms progressives used to impose wokeness in the first place. Red state shareholders can remain Woke Kapital’s silent partners, or they can demand change, and fight for the constituents they represent.
Certainly hardened left-wing teachers’ unions will be apoplectic at the thought of their pensions being used for America First ends. What a shame. Don’t you remember all those somber New York Times and Washington Post think pieces from the 1980s where respectable liberal intellectuals carefully considered the consciences of religious conservatives who didn’t want their tax dollars going to fund abortions or art featuring crucifixes dipped in urine? Me neither. If the Right is supposed to sit back and fund Piss Christ, then the teachers unions can watch on helplessly while the taxpayers footing their retirement use the cash to make Corporate America great again. Thin-skinned educators who don’t want to sign up for this can always learn to code.
Drain the Media’s Copyright Swamp
For Disney, the dam is breaking on its hold on copyright. Perhaps inspired by Revolver’s previous reporting, several Republican members of Congress have already said they will not vote to renew Disney’s copyright on old materials. Public opinion looks bleak for Disney. To win, all the GOP has to do is run out the clock on the issue. America First Republicans must hold GOP leadership accountable and refuse to let Kevin McCarthy and Mitch McConnell snatch defeat from the jaws of a MAGA victory. Nothing less will do.
Fighting off another copyright extension is just one piece of the battle. The Constitution gives red states a significant weapon to drain the copyright swamp, a weapon they could use at absolutely any time should they feel inspired enough. In 2020, the Supreme Court decided a copyright case brought by a photographer against North Carolina. The photographer alleged the state infringed his copyright on photos and videos he made of a shipwreck off the coast of North Carolina. The state raised the Eleventh Amendment (which restricts the power of citizens to sue state governments in federal court) as a bar against his claims.
Media companies watched the case closely. In an amicus brief, Dow Jones (the publisher, not the industrial average) complained that if the state’s Eleventh Amendment defense prevailed, then the Court would “open the door for state-backed entities essentially to go into business for profit through the unauthorized exploitation of copyrighted material—whether as distributors, aggregators, or even purported authors of plagiarized material.” The issue was personal to Dow Jones because a California state agency had reproduced “approximately 6,700 articles taken from The New York Times, 5,400 from the Los Angeles Times, over 3,100 from The Sacramento Bee, and over 1,500 from The Washington Post” without compensation. Tragic.
The Supreme Court ruled in favor of North Carolina, holding that Congress had not validly taken away North Carolina’s Eleventh Amendment immunity. Justice Breyer elaborated on the practical implications in his concurring opinion. “[O]ne might think that Walt Disney Pictures could sue a State (or anyone else) for hosting an unlicensed screening of the studio’s 2003 blockbuster film, Pirates of the Caribbean (or any one of its many sequels),” Justice Breyer noted, but “the Court holds otherwise.” Congress could act, but until it does something, states are largely free to plunder these works.
If Ron DeSantis wants to keep scoring wins over Disney and the rest of Hollywood, he could exploit the Eleventh Amendment to bring their content to the masses at no or reduced fees. The same goes for other large legacy media outlets. Red states could publish advertisement-free articles from The New York Times. Unencumbered by copyright, Red states could make the archives of legacy media fully available for dissection and inspection by researchers, who can then bring all of the legacy media’s contradictions into the light of day.
Higher education is also in play. Imagine a world where students at public universities in red states do not have to shell out hundreds of dollars on the latest versions of textbooks. It’s possible. Sure, content owners could sue state officials to try to get injunctive relief, but they cannot recover damages. And enforcing copyrights would be an administrative nightmare.
All of this may sound over-the-top, but it could work just as well as a threat: Cut back on the wokeness, or the copyright floodgates will be opened.
Red States Should Hold the Drug Industry Accountable
Drug pricing is a major issue for many middle-class Americans who rely on medications to treat diseases like diabetes. We have all heard stories of working-class people ruined by the price of life-saving medications, only to look on as drug companies play regulatory and patent games to extend their product lifecycles. Americans pay the price.
Red states can play a role here. In 2020, California became the first state to authorize the manufacture of generic drugs. Red states should think bigger than this. Brand-name drugs drive costs, not generic drugs. What red states should do instead is go into the drug business directly. Unlike private companies, states are not subject to the FDA’s authority. What this means is that, in theory, states could produce their own drugs to meet the needs of their citizens without running the years-long, expensive gauntlet of FDA approval.
What about drug companies and their patents? Well, the same Eleventh Amendment principles applicable to copyright also are in play with patents. If a state were to produce an alternative version of a patented drug, the manufacturer could sue, but only get injunctive relief. And in patent cases, that could take years, all while red state citizens reap the benefits. Red state attorneys general should lay off civil rights lawyers tasked with harassing small business owners, and hire an army of litigators to go “toe to toe” with Big Pharma, like Pence did with Putin.
Does some of this sound discomforting? What about “thou shalt not steal?” Don’t sweat it. Copyrights have always been a privilege granted by the state for the benefit of the public. The Constitution authorizes Congress to create copyrights to promote the progress of science and art. By the same measure, if removing copyright protection would help the public more, our leaders should do it in a heartbeat.
America First Republicans Must Crush the DIE Industry
In the Supreme Court’s Bostock decision, which found that the Civil Rights Act of 1964 actually forbade employment discrimination on the basis of sexual orientation and transgender status all along, we learned that “[o]nly the written word is law, and all persons are entitled to its benefit.” If that’s true, then race discrimination claims by white males should be subject to the same standard of proof as everyone else’s. But as anybody unfortunate enough to work in corporate America knows, that’s not the case. Any white male’s claims of illegal discrimination will be subject to a higher standard of proof. Many federal courts require white male plaintiffs to prove the existence of “background circumstances” which “support the suspicion that the defendant is that unusual employer who discriminates against the majority.” In post-George Floyd America, the notion that anti-white discrimination is “unusual” is laughable.
The practical realities of this country’s civil rights laws make suggestions from those like David French that all we need is “robust enforcement” of those very statutes the epitome of a fool’s errand. Such proposals, particularly under a Biden Administration, should not be taken seriously. Congress or the Supreme Court must lift this blatant, Bostock-defying double standard. If they do, then Woke Kapital can inherit a whirlwind of Title VII litigation on account of their diversity, inclusion, and equity (DIE) programming. And all it will take is one jury verdict. If plaintiffs can collect multi-million dollar judgments against companies like Tesla for “racial abuse,” then so should working-class white Americans huddled into Maoist struggle sessions to genuflect on how they are deriving residual benefits from the transatlantic slave trade. States should similarly amend their civil rights laws, if necessary, and extend individual liability to the “professionals” overseeing these hate-filled, Marxist struggle sessions.
E.C. Knight is an attorney in Middle America.