Powers Biden has right now
Monday’s wrenching news that the Supreme Court is set to overturn Roe v. Wade marks a final leg in Republicans’ long march to theocratic rule, bringing conservatives far closer to consolidating total power even before the reckoning of 2024, when the GOP is set to launch a barrage of anti-democratic incendiary balloons at an already scorched Constitution. The highest judicial body in the land has emerged from its terrifying chrysalis, emboldened by dark money groups and transformed into a bludgeon aimed at the most basic constitutional rights and federal agencies that regulate our air and water, our work and labor rights, and the vast public health apparatus of the United States government.
Despite the court’s ever expanding dominion and hunger for upheaval, the powers enshrined by federal agencies to pursue wrongdoing, safeguard the rule of law, and uphold democracy are still very much operational, however in need of a full throttle mobilization they may be. At RDP we have cataloged the fixtures of criminality that have chipped away at our democratic institutions and led us to our current juncture: outsized corporations grown so engorged on tax breaks and criminal profiteering that they’ve smothered the basic mechanisms that allow our system of checks and balances to function. To strike back, the Biden administration must focus on the levers of power it now controls, outside the realm of the Mountain State King’s chamber, where civil penalties, executive actions, and the day-to-day operations of regulators remain beyond Republican reach. Fortunately for the president, we’ve written the playbook for him. Time to put us in, coach.
In our labor corporate crackdown report we detailed how the Department of Labor can empower workers to safeguard their rights, the ways the Department of Transportation can cut down monopolistic mergers that feed special interests poisoning the public sector, and how the Department of Energy can implode the fossil fuel corporations filling the coffers of increasingly emboldened anti-democratic politicians (and, in at least one instance, the bank account of a Supreme Court justice’s father). With a Republican party that will stop at nothing to achieve and uphold its radical agenda, there has never been a better time for Biden not to summon the full power of his cabinet against the GOP storm.
While Biden can’t remove sedition supporters, religious extremists, or the credibly accused from the Supreme Court, he does hold the power to remake one of the single most powerful enforcement agencies into a formidable force for cracking down on illegal theft from the U.S. government. Since the Trump administration, Charles Rettig has festered in the commissioner’s chair at the IRS, refusing to go after rich and powerful tax evaders fleecing the U.S. government out of billions. We’ve repeatedly noted with frustration that President Biden has the power to replace Rettig and has chosen not to. Also notable, however, is an already empty spot that he has neglected to fill: IRS Chief Counsel. As RDP’s Toni Rosenthal explained last week,
“The Chief Counsel could…work to investigate what authorities it already possesses to increase its scrutiny of, and enforcement actions against, potential and actual private equity tax evasion schemes involving offshore tax havens. Private equity interests abuse these regulatory blind spots to allow their partners to dodge and defer taxes while their foreign investors evade them altogether. The IRS must invest time and interrogative resources into exploring its existing oversight authorities, and then use these authorities to emphatically enforce against such flagrant abuses of the tax code. This should involve enforcing the bounds of the infamous carried interest loophole, which “allows private equity barons to claim large parts of their compensation for services as investment gains, which [in turn] allows them to pay lower tax rates than middle class taxpayers pay on their wages and other compensation.”
Cracking down on private equity moguls who have stripped millions of dollars away from pensioners to boost their C-suite bonuses would not only raise revenue, it would also restore faith in government from the countless workers who have found themselves out of a job and a retirement plan thanks to the very corporate criminals donating thousands to pack the Supreme Court with anti-taxation extremists.
Directly across the national mall from IRS headquarters, the US Postal Service has similarly failed to air out the Trumpian stench from the Postmaster General’s quarters where an intransigent Louis Dejoy continues to hack away at a critical strut holding up America’s election infrastructure. RDP’s Vishal Shankar laid out how Biden is failing to shore up the embattled mail agency:
“As we’ve explained before on this blog, DeJoy remains in power because he retains the support of the USPS Board of Governors, who have the sole power to hire and fire him. The recent departures of termed-out board members Ron Bloom and John Barger have left the board with two vacancies, giving Biden a rare opportunity to flip control of the board.
Unfortunately, Biden appears to have squandered this opportunity. After wasting months of valuable Senate floor time, Biden announced last November that he would appoint former Trump official Derek Kan and former Obama official Dan Tangherlini to fill these two vacancies. Based on their professional backgrounds and testimony to the Senate last month, it is unlikely that either Kan or Tangherlini would push to fire DeJoy if confirmed to the board.”
If Biden wants to get serious about doing everything in his power to secure elections, and in turn the fate of the Supreme Court and the preservation of long enshrined constitutional rights, he can start by making a modest effort to remove Trump appointees set on the total obliteration of everything his party stands for.
Speaking of taking a stand, Biden would do well to inspire the full swath of federal agencies to attack the enemies of America and its ideals with the same fervor as the DOJ’s Big Tech bounty hunters. As Rick Claypool detailed this week, government capacity for crime fighting is at an all time low, but that doesn’t mean regulators can’t and shouldn’t punch above their weight. “With federal corporate prosecutions down to their lowest level on record – just 90 in 2021 – the DOJ has a lot of work to do changing the perception that corporate criminals will be caught and held accountable.
Thankfully, the policy changes and rhetoric coming out of the DOJ are clearly aimed at changing that perception – and, apparently, striking fear into the hearts of corporate defense lawyers.
One corporate lawyer who works for Big Tech firms like Google recently described the enforcement rhetoric coming out of Biden’s Department of Justice as “terrifying” in a recent Bloomberg News story, which also described a roomful of corporate defense lawyers reacting to a panel on the DOJ and FTC’s strengthened approach to antitrust enforcement with “nervous laughter.”
But sometimes punching above your weight still isn’t enough. The NLRB, which has emerged as one of the most effective agencies enacting outsized change, wrote a letter expressing their struggle to process the massive influx of unionization paperwork from the Starbucks union drive spreading like wildfire in coffee shops across the country. Senator Sherrod Brown, a staunch labor ally, laid out what Biden can do to empower workers to bargain for rights increasingly under threat by the supreme court: increase the NLRB’s budget.
To end on a bright spot in an otherwise dark week, the SEC announced that they’ll be beefing up their crypto enforcement. The agency on Tuesday announced it was “creating 20 new positions within its enforcement division to investigate securities law violations involving crypto exchanges, lending and staking products, decentralized finance platforms, non-fungible tokens and stablecoins, among other offerings.” The announcement comes on the heels of massive investments by crypto billionaire and self-proclaimed effective altruist Sam Bankman-Fried into midterm primary races, backing anti-regulation candidates in an effort to maintain the runaway digital tulip craze headed for a fiscal cliff.
Want more? Check out some of the pieces that we have published or contributed research or thoughts to in the last week: