The inaugural Ask Me Almost Anything

Reader questions and, I hope, useful answers

Wow, this got out of hand in a hurry! Thanks for the great questions for my first AAMA. Each of them could have anchored a separate post. I’m letting my questioners remain anonymous. Next time, I may have to cut down the field!

The response to this publication has both humbled and cheered me. Thank you! If I recall, you probably can share posts behind the paywall every now and then and the Substack police won’t mind too much. So please share, if you’re so inclined.

Now to the mailbag:

  1. What do you expect the Republican Party to look like in the run-up to the 2022 midterms? Trumpy, which baffles plenty of journalists and biographers. Democrats didn’t take a blood oath to resurrect the presidential hopes of Jimmy Carter, Walter Mondale, or Michael Dukakis after each had his, er, head handed to him by Ronald Reagan and George H.W. Bush. The party moved on. The race for retiring Richard Burr’s U.S. Senate seat includes several potential GOP candidates fighting to occupy the Trump lane.

  • Former U.S. Rep Mark Walker of the Triad, announced first with an ad that indirectly embraces Trumpism while also highlighting Walker’s genuine outreach to Black faith leaders and small business owners while he was in Congress.

  • Former Gov. Pat McCrory has won one statewide election and come close another time. He’s become a successful talk show host in Charlotte. Also, he’s cleverly playing an inside-outside game by praising the state’s other U.S. senator, Thom Tillis, saying how well they worked together in Raleigh when McCrory was governor and Tillis was speaker of the House. He’s emphasizing Trump policies the base considers popular while not discussing the former president’s bluster.

  • Lara Trump. The president’s daughter-in law, a Wilmington native who’s never held elective office, hasn’t ruled out a run.

  • Rep. Ted Budd, R-13th District, and state GOP Chairman Michael Whatley also may run as Republicans. Former White House Chief of Staff Mark Meadows rejected the opportunity earlier this week.

The challenge, of course, as a state GOP strategist told CNN, is threading that needle. "They're all making a play for the primary. But my worry is that we're going to lose the seat because we get the Trumpiest guy of the bunch."

  • The Democrats’ pick is anyone’s guess. Former chief justice of the N.C. Supreme Court Cheri Beasley continues to generate buzz. So does state Sen. Jeff Jackson of Mecklenbury County. But Beasley shares an advantage with McCrory: She’s won and barely lost statewide elections the past two cycles. Two-term Attorney General Josh Stein keeps getting mentioned, but he also seems to be angling for the governor’s office in 2024, when Cooper must retire. Stein could line up a donor base in 2022 for a statewide run two years later, but he couldn’t move money from federal campaign accounts to state ones. He may be more interested in campaigning for the eventual Democratic nominee and then use his mailing list to finance a run for governor.

  1. How do we protect congressional districts from partisan gerrymandering? And how would we know that they are fairly drawn? Rules, rules, rules. So long as elected officials have a role in redistricting — and they do under the N.C. Constitution — districts always will have some partisan hue. As I posted earlier this week, districts that respect county lines, keep population as close as possible, and remain compact would minimize some of the shenanigans and hijinks. Adopting a transparent, public process, as the General Assembly did in 2019, will help, too. Since we won’t have full census data until summer or fall, when the pandemic should be behind us, lawmakers can and should use 2019 as a model.

    Share Deregulator

  1. I’m breaking this one up because it’s an excellent question with several facets.

  • How has the Covid pandemic shifted the regulation-averse point of view that is strongly held by so many?  (Or has it)?  Examples of infringement on personal liberties:

    • Restrictions on right to keep and bear arms. The Biden administration and many congressional Democrats hope to restrict firearms ownership and carrying rights outside the home. States (including North Carolina) more friendly to owning firearms probably will try to expand right-to-carry on private property and for some first responders. In January, three petitions were filed at the U.S. Supreme Court, mainly dealing with the right to carry outside the home and an end to the ban on criminals owning firearms if they were charged with minor nonviolent offenses. Stay tuned! 

    • Requirement to wear a mask during pandemic. This may be a bigger question about the limits of the governor’s powers during a declared emergency. One of my first newsletters concluded: There aren’t many. We may get some kind of changes in the EMA that’ll take effect after all of Gov. Cooper repeals his COVID-19 orders. Something that sets a time limit on them, or requires the approval of the Council of State or the General Assembly. I know there are plenty of people, mostly on the populist right, who’ve pooh-poohed the effectiveness of masks and the imposition on personal freedom a mandate on public and private property enables. If we begin emerging from the COVID pandemic in an orderly and noteworthy fashion, and the Cooper administration starts easing restrictions in a transparent manner, then we may see a fair level of voluntary mask wearing when the seasonal flu or less-scary COVID variants pop up, as they will. I’m actually more optimistic that sensible business owners can craft sensible rules for their patrons.

    • Prohibition on yelling “Fire!” in a crowded theater. (OK, I know, there no longer ARE any crowded theaters!) Touchè! This is one of those analogies that’s become familiar … and misunderstood. In 1919, Supreme Court Justice Oliver Wendell Holmes said, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic” (emphasis added).

This fine explainer from The Atlantic talks about how, over time, Holmes’ formulation has been twisted so that people think he said the opposite of his actual statement. (Author Trevor Timm also noted that the case on which Holmes’ statement emerged, U.S. v. Schenck, “is not only one of the most odious free speech decision in the Court’s history, but was overturned over 40 years ago.”

TL;DR version: Socialist Charlies Schenck was handing out pamphlets opposing the World War I draft. He was convicted under the Espionage Act, wound up in prison, and SCOTUS upheld the conviction. (Woodrow Wilson’s successor Warren Harding was a genuine American hero, as Harding freed hundreds of political prisoners Mrs. Wilson and Attorney General Mitchell Palmer locked up when the president was too feeble to perform his duties.)

Schenck was reversed in the 1969 Brandenburg v. Ohio decision involving Ku Klux Klan leaders in 1964 threatening to organize a march on Washington on July 4. SCOTUS said the Klan leaders vowed no imminent action nor any specific calls to violence. 

UCLA law professor Eugene Volokh notes that yelling fire in a crowded theater is a great idea if the theater is ablaze and people need to evacuate. Problems arise from Holmes’ condition of “falsely,” but the First Amendment may still protech that speech. The theater owner, of course, may want to sue the shouter for property damage or other economic losses.

  • But this is the big one: Has the line shifted at all regarding what restrictions on personal behavior are acceptable?  Maybe? Our discussions will be colored by how the Trump administration tried to deny the pandemic’s seriousness … and how some governors, including Cooper, maintained too-tight restrictions or ignored the ones they had imposed on the general public after the got a handle on how the virus was transmitted and how to slow the spread. Trump’s disinterest may have needlessly cost thousands of lives. SeveralRepublican governors followed Trump’s lead, with disastrous results. Other Democratic governors, including Andrew Cuomo, Gavin Newsom, and Gretchen Whitmer, undermined public confidence in competence with a series of PR and more lethal blunders.

Governors will start losing unilateral emergency powers as vaccinations become widely available. Memorial Day could be a benchmark. Courts are stepping in as well. As David French noted way back in September, Americans shouldn’t be expected to live under lockdown conditions forever unless there’s a feedback loop subjecting emergency powers to immediate public oversight and review. Again, stay tuned.

  • Something else to watch: Congress. Populist Republicans and Democrats apparently think it’s peachy-keen block free speech if they don’t like the message. Here’s my friend Wally Olson:

[T]he Supreme Court recognizes no “fake news” or “disinformation” exception to the First Amendment. Some speech that is false may lack First Amendment protection for other reasons, such as when it is defamatory or genuinely threatening to a target or advances a scheme of commercial fraud. But even very sinister and very false speech of a political tenor ordinarily remains protected: that is the case, for example, with most speech that causes people to distrust the legitimacy of the democratic process, medicine, or science. There is no First Amendment exception for ideological lying or fraudulent chatter about current events.4)  Finally, a baseball question: Washington Nationals ace pitcher Max Scherzer says the National League should have a designated hitter but a team would lose the DH when the starting pitcher is pulled, allowing for strategy in the NL. What do you think of this idea?  First, I’m a DH guy. Today I learned the first DH proposal was adopted in the 19th century! So much for newfangled ideas. 

Unless I’m wrong, the MLB National League and the Japan Central League are the only places in organized baseball worldwide that expect pitchers to hit. There’s a DH in Little League and its offshoots, high school and college baseball, semi-pro wooden bat leagues, the minor leagues (unless the teams are both National League affiliates and the clubs agree to have pitchers hit), and the International Baseball Federation (which handles competitions between national teams). 

Pitchers often are among the best athletes and best hitters on their teams in Little League and high school. Coaches typically adjust by having slugging pitchers play an infield or outfield spot the days they aren’t starting. It’s also normal for a college team, say, to pull a first baseman or an outfielder from their position and have them pitch in relief. 

The only argument I can see for having no DH would be to reduce the batting order to eight players, with no DH, and let pitchers work exclusively from the mound.

BTW, first Atlanta Braves preseason game is Sunday! Road to the World Series and all that. Got a brand new pair of shooooooo-es.

Thanks again for the feedback. Next AAMA will be at the end of March!