Bret Baier on Covering Election Night
A conversation about the challenges and storylines of 2022
I hope you’re all subscribed to my Fox News podcast, which has been alternating between coverage of the elections, foreign policy, and more evergreen author interviews this year. We’re closing out the election season with a great series of guests, and I’m happy to have the opportunity to interview Bret Baier on the latest episode. He gives a ton of insight into the approaches used at Fox News to cover election night, our Super Bowl. Give it a watch here!
Enough With The Democracy Apocalypse Talk
Don’t look now, but the political era of existential-crisis mongering may be reaching its overdue end. Thank Democrats for screwing the basics up so badly as to focus minds.
That’s the takeaway of Joe Biden’s breathless Wednesday speech. It used to be that if a president scheduled prime-time air to warn the nation of a “threat” to “democracy,” from “dark forces,” that has placed everything from our “personal freedoms” to the “rule of law” “on the ballot”—he’d be referring to something like World War II, and get a listen. The Biden speech got a shrug. Voters have sat through this apocalyptic movie many times now, and know its anticlimactic ending. Besides, they’re busy searching for spare change to cover the rising grocery bill.
Not that the left isn’t giving it the old middle-school try. The Nation’s Katrina vanden Heuvel warns we are in a “polycrisis,” of “war, extreme weather, contagion, concentration,” coupled with “poverty,” “homegrown dictators,” “obscene inequality,” “big money,” “election deniers,” “nativism,” and “oceans of disinformation and dishonesty.” Barack Obama told an Arizona rally this week that democracy “may not survive” the midterm election: “That’s not an exaggeration.” The Atlantic’s Tom Nichols recently tweeted: “The United States is facing the greatest danger to its constitutional system since at least the 1950s, if not the *18*50s, and millions of people are like: Yeah, but gas, man.”
Yeah, but gas, man. And hallelujah. Bring on the non-drama election.
For those counting, this is the fourth cycle Democrats have made histrionic claims of external threat, internal menace and political demise. Donald Trump became their foil, and no claim about him or his supporters became too absurd. Collusion with Russia! Institutions crumbling! Rule of law—gone! Climate melting down! Nation succumbing to nationalists, racists, misogynists, phobes of all kinds! Voter suppression! Minority tyranny! Insurrection! Along the way the left conjoined its agenda with the saving of humanity: If you want to rescue “democracy,” kill the filibuster, end oil, put the feds in charge of voting, censor “disinformation,” raise taxes, forgive debt, expand entitlements, and celebrate Disney’s “Lightyear.”
Only Mr. Trump is neither on the ballot nor in the White House, an absence that has freed the collective American mind to refocus on the real, and worrisome, domestic policy issues at hand. Democrats have clarified matters further by governing in an aggressively ideological and unserious way. Democratic spending sent inflation raging, and recession looms. The stock market—meaning 401(k)s and 529s—is in the tank. The left’s assault on domestic energy feeds untenable energy prices. Their defund-the-police movement produces soaring crime. Blue-state school lockdowns set kids back by years. The border barely exists.
So yeah, but gas, man. In the recent Wall Street Journal poll, 64% of respondents said this midterm is “more important” than most elections. Asked why, the categories that got the significant majority of support included “we need change,” “current administration failing,” “anti-Democrat,” “fiscal issues,” inflation, crime and immigration. Only 13% listed “democracy in danger” and 12% “anti-Republican”—Mr. Biden’s audience.
Democrats Bet Big on Abortion, But Did They Bet Wrong?
In the first major election since the Supreme Court overturned Roe v. Wade, the debate over abortion rights has not emerged as a political silver bullet for Democrats, who have largely abandoned hopes that a surge of voter outrage over the decision alone would lift them over obstacles they face in the midterms.
After spending hundreds of millions of campaign dollars on abortion messages — nearly $415 million on ads alone — Democrats have found the impact to be uneven. While support for abortion access is driving the party’s most loyal voters, it does not appear to be outweighing economic concerns for pivotal swing voters.
Strategists and pollsters say voters remain uncertain about the tangle of state laws that have replaced federal protections and about candidates’ positions — one sign that Republicans, who were caught flat-footed by the victory they spent decades working to achieve, may have successfully muddied the waters about their positions.
“These laws can be complicated and convoluted,” Sarah Godlewski, state treasurer of Wisconsin, a Democrat who started a PAC to support state candidates who support abortion rights and flip control of the State Legislature. “It is patchworked across the entire country, it is very confusing.”
Public opinion on the issue hasn’t changed. If anything, voters are more supportive of Roe than they were before it was overturned in a landmark ruling that eliminated a federal right to an abortion. A majority of Americans still support legal abortion, at least through the first trimester of pregnancy. But those views vary by state, with voters in many conservative places where the procedure has been restricted more likely to say abortion should be mostly or fully illegal.
Many Democrats remain optimistic that voters will support abortion rights when the issue is put before them on a referendum. For months, they have been optimistic about Michigan, where many believed a measure to amend the state constitution to protect abortion rights would drive voters to the polls and help lift Gov. Gretchen Whitmer, a Democrat, to re-election.
But privately some Michigan Democrats have begun to worry that voters’ increasing focus on the economy could jeopardize Ms. Whitmer, whose polling lead has shrunk in recent weeks, as well as the ballot measure.
In bluer states where abortion remains a protected right, issues like gasoline prices, inflation and crime have already emerged as more forceful motivators. In places like New York, Nevada and New Mexico, where state law protects abortion, Democratic candidates for governor have tried to draw a contrast with their opponents. The Republicans have urged voters to all but ignore the issue, saying they have no plans to change current law.
“There’s no place in the country where abortion’s not on the ballot,” said Mini Timmaraju, president of NARAL Pro-Choice America. But, she acknowledged it’s not having the same impact everywhere. “In a state like Connecticut, where there may not be anything driving a contrast, issues around inflation could be more impactful because it may not feel as visceral.”
Democrats acknowledge the issue has gradually faded. Representative Abigail Spanberger, who is seeking re-election in one of the country’s most competitive districts, says her opponent’s abortion views have given the issue additional traction in her central Virginia district. Her first advertisement of the campaign season featured an attack on her Republican opponent, Yesli Vega, as “too extreme for Virginia,” citing Ms. Vega’s support for bans.
But as the surprise of the decision has faded, abortion rights has become a steady backdrop to her race — often listed as a reason voters plan to support her.
“It is a motivating factor but there isn’t the ‘oh my gosh, can you believe this has happened?’” she said. “Because that happened a few months ago.”
Since the court’s decision in June, more than a dozen states have banned abortion from conception, allowing few exceptions. But lawsuits have paused many of those bans while court cases proceed. Other states have multiple bans in place, leading to confusion.
The flurry of action has disoriented voters, making it difficult for Democrats to build a sense of urgency.
In Wisconsin, for example, abortion became illegal after Roe was overturned, with a law that dates to 1849. But the Republican running for governor has suggested he will not support enforcement of the near-total ban. Democratic district attorneys in the state’s two largest counties have said they won’t enforce the ban and Attorney General Josh Kaul, a Democrat, filed a lawsuit seeking to overturn it. Gov. Tony Evers, a Democrat who is running for re-election, has called for a constitutional amendment to repeal the ban, but has been blocked by the Republican State Legislature.
Ms. Godlewski says voters she talks with are often “shocked” to learn that abortion is illegal in their state.
“They assume we are like Minnesota or Illinois, where access is still available,” she said.
Republican voters who might oppose their party on abortion are not so easy for Democrats to flip on the issue alone. In Tucson, Susan Elliot, a Republican who broadly supports abortion rights, plans to vote for Republicans straight down the ticket. Her concerns about the economy and inflation outweighed her support for abortion rights.
“The ‘great resignation’ and inflation and crazy prices are something that is harming me daily,” Ms. Elliot, 54, said. “And whether abortion is legal or not, or whatever weeks they want to do, doesn’t make any difference in my life.”
Section 230 Heads To The Supreme Court
Courts have set some limits around Section 230. One prominent decision let the plaintiffs sue a website for expressly inviting users to supply input that violated fair-housing laws. By asking specific questions about legally protected categories such as sex and sexual orientation, the court held, the website had become the "provider," at least in part, of the resulting content. Another ruling opened a platform to liability for offering a "speed filter" app that supposedly encouraged reckless driving. The basis of the suit was not the high speeds the plaintiffs' children had posted on the app before dying in a car wreck, but rather the app's allegedly negligent product design.
Yet in lawsuits that seek to hold a platform liable for the substance of third-party speech, Section 230 has held firm. Countless victims of online abuse and harassment have found themselves out of luck.
Consider the case of Kenneth Zeran. On April 25, 1995, six days after the Oklahoma City bombing, he started receiving threatening phone calls, some of which included death threats. Someone, it turned out, had posted on an AOL bulletin board an ad offering "Naughty Oklahoma T-Shirts" ("Visit Oklahoma," said one; "it's a blast") and bearing Zeran's home phone number. Further posts appeared (bumper stickers and keychains were thrown in the mix), and the calls increased to hundreds a day. Zeran could not determine who had created the posts; because of Section 230, he had no recourse against AOL for failing to take his plight seriously.
Does Section 230 enable this sort of misbehavior? Is there more racism and misogyny online because of it? That's what some on the left think. President Joe Biden recently accused platforms of "spreading hate and fueling violence," and he vowed to "get rid" of their "immunity."
Whether social media generates radicalism is a fraught empirical question. Regardless, there is little reason to expect that removing Section 230 would improve matters. Recall the moderator's dilemma: Before Section 230, a platform could limit its liability either by doing virtually no content moderation or by doing lots of it. Remove Section 230 and the dilemma returns. Some services would reach for distributor status, while others would embrace publisher status. On the "distributor" platforms, hate speech and misinformation would flourish like never before. The "publisher" platforms, meanwhile, would remove content the moment anyone asserts that it's defamatory. In practice, that means these services would expel people who dare to accuse the powerful of discrimination, corruption, or incompetence.
And let's not forget the Constitution. Most of the speech that Biden thinks is "killing people" is legal and protected under the First Amendment. Without Section 230, platforms might remove more "lawful but awful" speech in order to avoid a flurry of lawsuits. Then again, they might not, for the lawsuits complaining about "lawful but awful" speech are not the ones that would succeed. Such suits would advance further in litigation (probably to discovery and then summary judgment) than they would with Section 230 around (which causes them to get dismissed at the pleading stage), but only to fail in the end. Erasing Section 230 is therefore likely to entrench large platforms (which can endure the cost of seeing lots of doomed lawsuits to the finish) at the expense of new entrants (which can't).
Many on the right want to scrap Section 230 too. Often their strategy is to claim that the law says things it does not say. Sen. Ted Cruz (R–Texas) was an early proponent of the "platform versus publisher" myth—the notion that "platforms" must exhibit viewpoint neutrality (as measured…somehow?) or else be deemed "publishers" lacking Section 230 immunity. The law contains no such distinction. Indeed, as we have seen, Section 230 encourages publisher-like behavior.
Speaking only for himself, in a separate opinion issued two years ago, Justice Clarence Thomas argued that courts have "relied on policy and purpose arguments" to give Section 230 too broad a scope. He went on to propose that Section 230 does not shield platforms from distributor liability.
It is true that in considering Section 230, courts often invoke policy and purpose. But the text of the law is broad: An immunity from being treated as "the publisher" of third-party content is a big immunity indeed. Moreover, Zeran got it right: Being protected as a publisher logically encompasses being protected as a distributor. Otherwise Section 230 would be nothing more than a notice-and-takedown scheme—something that would have left companies like Prodigy almost no better off than before.
Items of Interest
Gallagher: Biden must oppose CCP-friendly leadership of international bank.
Securing the Taiwan Strait will require more than just arms.
Russia warns Ukraine on Kherson.
October Jobs Report shows growth.
Noonan: You have a duty to vote.
Jindal: The day after Democrats lose.
Sandford: Patty Murray makes an anguished face.
NYT: Worries that Wisconsin’s legislature could get a GOP supermajority.
WSJ: Oz and Fetterman neck and neck.
Politico: Hawley intends to remake the Senate with Vance and Masters.
Miller: Democrats made people like Kari Lake stars.
Examiner: Biden identifies “350 election deniers” on ballot.
Bovard: Biden’s big lie on Democracy.
Mull: Poverty is an underlying issue for 2022.
Swan: Inside emails from the Trump Georgia lawsuit.
Politico: Fresh finger pointing over Capitol Police failures to protect Pelosi.
NR: Trump to announce 2024 presidential run as early as November 14.
Variety: MSNBC’s Tiffany Cross abruptly dropped.
Mediaite: Cross called Florida “dick of the country” hours before ouster.
Semafor: CNBC cancels Shephard Smith’s show.
WSJ: Elon Musk says Twitter has had massive revenue drop.
Time: Inside the gigantic chess scandal.
Outkick: Brooklyn Nets suspend Kyrie Irving without pay.
Outkick: Cole Beasley defends Kyrie, takes shot at Buffalo Bills.
Pitchfork: The Weird Al movie is a goofball’s paradise.
Derek Thompson: America in the age of conspiracy.
“The contemporary climate is therapeutic, not religious. People today hunger not for personal salvation, let alone for the restoration of an earlier golden age, but for the feeling, the momentary illusion, of personal well-being, health, and psychic security.”
— Christopher Lasch