Jeff Bezos Welcomes Our Potential Insect Overlord
Early last week, Professors Neil Buchanan, Laurence Tribe, and I submitted a proposed op-ed to the Washington Post. The Post's editors accepted the op-ed and originally scheduled it to run last Friday morning but then decided to delay its publication until today, because on Friday it would have competed with too many other op-eds. That struck us as sensible, so we acquiesced in the delay, which would have been fine were it not for its owner's subsequent craven decision not to endorse a candidate in the presidential election, thereby breaking with a tradition it has almost always followed over the last five decades.
Buchanan, Tribe, and I join the chorus of criticism that is rightly raining down on Jeff Bezos for his anticipatory capitulation to the potentially looming dictatorship of Donald Trump. Democracy dies in cowardice.
My co-authors and I considered pulling our op-ed but decided not to do so for two main reasons: first, the editors who agreed to run (and provided useful editing on) our piece did not make the decision to make no presidential endorsement; and second, our essay describes Trump accurately as a threat to democracy, so we thought it would be somewhat perverse to punish the Post for pulling its punches by pulling our punch. I'll return to the significance of Bezos's shameful behavior, but first I'll say a few words about the op-ed.
Our op-ed points to what we call the "House decides" error--the widespread but plainly erroneous belief that in the event that neither Harris nor Trump gets 270 or more electoral votes (most likely because of chicanery in Republican-controlled state legislatures in one or more states that Harris wins), the election will be decided by the House of Representatives, with votes cast on a one-vote-per-state-delegation basis. As we explain in the column, the text of the 12th Amendment does not say that at all. The election goes to the House only if no candidate wins a majority of the electoral votes actually counted, not a majority of the votes that could have been counted. We thought it essential to correct this basic reading comprehension error, lest Congress--including Democrats--follow a plainly unconstitutional procedure in circumstances when, even in the face of Trumpian chicanery, Harris would have won the election.
As we also note in the op-ed, however, there are realistic scenarios in which Trump could lose the election in states totaling 270 or more electoral votes but have himself declared the winner, even without sending the election to the House. These involve Trump inducing, cajoling, or threatening enough state legislatures to send no qualified electors to Congress or even getting one or more state legislatures to flip from Harris to Trump. Such scenarios are themselves almost certainly illegal under the Electoral Count Reform Act, but a Congress in Republican hands (as it could be on January 6) might well violate the Act. There is reason to think that SCOTUS would not then intervene, citing the political question doctrine and motivated, at least in part, by empathy for Trump.
That's the op-ed in a nutshell. Readers with the stomach to read anything in the Washington Post can get the full version by following this link (which might be behind a paywall).
As for the decision of Bezos to muzzle the Post, what is there to say? If Bezos's goal was to avoid agitating Trump (and that seems like it was obviously the goal), the decision not to endorse anyone for president is likely to be ineffective, counter-productive, and/or ominous. It will be ineffective because Trump deems all reporting of his misdeeds "fake news" by "the enemy of the people." So if this is simply a one-off that won't effect the Post's news operation, it will not appease Trump. Indeed, it might prove counterproductive by whetting Trump's appetite. Seeing how easy it is to intimidate the owners of news organizations, Trump back in the oval office would likely press for more concessions. Capitulating to bullies emboldens them. And that takes us to the ominous possibility: that the non-endorsement decision is simply the first step on the road to changing news coverage as well, thus turning the Washington Post into Pravda.
Bezos does not stand alone among the Profiles in Cowardice. His anticipatory capitulation was itself anticipated by the parallel decision by Los Angeles Times owner Patrick Soon-Shiong. Notably, Bezos and Soon-Shiong made his fortune in other ways and then purchased their respective news organizations. Their wealth does not much depend on the financial fate of the LA Times or the Post. That fact partly explains their actions. Although neither Bezos nor Soon-Shiong has gone all-in on Trump in the way that Twitter/X owner Elon Musk has, their cravenness illustrates the danger of depending on gazillionaires to be in charge of journalism. Each of these men has business interests apart from his media enterprises that could be the target of retaliation by a vengeful Trump in the all-too-possible scenario in which he becomes president again.
But that would be true even of a news organization owned by a corporation with other business interests. Would it be less true for a non-profit (like ProPublica) or a for-profit news organization whose corporate or private owners lack other commercial interests that depend on government regulatory approvals and seek government contracts? I think the answer to that question is pretty clearly yes. It can be difficult and time-consuming to prove in court that a decision to deny regulatory approval or a government contract to an entity (like Amazon or Blue Origin) that is indirectly connected through ownership to a news organization is retaliation for less-than-favorable coverage of a petty, vindictive president. By contrast, actions directly targeting a news organization would be more readily shown to be retaliation in violation of the First Amendment.
That assumes, however, that the courts will continue to apply the First Amendment in a second Trump administration. Some number of judges will be all too eager to assist Trump in terminating the Constitution, but even those jurists who hold free speech and freedom of the press dear may find their commitment wavering when they and their families are threatened by Trump's freshly pardoned brownshirts. Elimination of an independent judiciary is one of the key moves of the authoritarian playbook favored by the strongmen Trump admires--including in countries with once-fiercely-independent judiciaries, like Hungary.
How long the courts and other institutions (like universities) can hold out as centers of opposition to an assault on democracy by Trump depends on many factors, but one of those factors is solidarity. Each time a civil-society actor capitulates to actual or anticipated pressure from the authoritarian, it becomes more difficult for other actors to hold the line, as they become more visible targets.
In the end, that is probably the worst aspect of Bezos's cowardly betrayal of journalistic independence. No one seriously thought that the endorsement of any newspaper would swing more than a handful of votes. Bezos knew that. He pulled the endorsement of Harris to send a signal to Trump. In so doing, however, he also signaled to the rest of us. If this once-heroic newspaper is among the first institutions to roll out the red carpet for der führer, other institutions and actors will find it that much more difficult to resist.