Welcome to the September 13th, 2022 Breaking Points with Krystal and Saagar newsletter.

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Now to the 9/13 Show: https://youtu.be/VBBQOXX2H5E

Vimeo: https://vimeo.com/749200719/dfb6821c0a

New warning signs about the midterm election polling data could indicate overly generous forecasting for Democrats. A problem in the 2016 and 2020 election, Democrats are polling well in exactly the places most inaccurate two years ago. In states accurately polled in the 2020 election, Democrats are performing worse than in polls in places where Democratic strength was overestimated in 2020. With these caveats in mind, Senate races predicted to go Democrats’ way in certain swing states might be more uncertain. For example, multiple Wisconsin polls have challenger Mandela Barnes leading Republican incumbent Ron Johnson, but if the 2020 errors are factored into the data, Johnson would win the race. Likewise, Ohio polls with Democrat Tim Ryan in a virtual tie with Republican J.D. Vance could be off by a significant margin. Even in the 2018 Democratic wave, senate polling was off in a year the Dems made big gains in the house. The possibility of Ryan overperforming against Vance because of his fundraising advantage and Vance’s weakness as a candidate could influence the outcome of the race. But unless a dramatic change takes place, Vance is expected to win in Ohio even if Democrats continue to pour money into Ryan’s campaign.

During the 2020 election, polls overestimated the popularity of Joe Biden and senate Democrats in swing state races. Some of them by egregious margins, such as a Wisconsin poll showing candidate Biden with a 17 point lead over Trump. Another one was a Maine poll of GOP Sen. Susan Collins trailing Democratic challenger Sara Gideon by double digits. Perhaps most inaccurate was a South Carolina poll with Democrat Jaime Harrison tied with incumbent GOP Sen. Lindsey Graham. Even conservative pollster Rasmussen was mistaken in putting Biden over Trump in Ohio and national polls had Biden up by as much as 17 points. The possibility of polls underestimating Republicans must be taken into account when trying to predict the results of the midterms. Nonetheless, Democrats have made noticeable gains over the past couple months and their momentum could continue through to election day.

Ukrainian troops expanded their territorial gains yesterday as part of the dramatic advance made by their counteroffensive over the weekend. Originally planned for the south, Ukraine caught Russia off guard by attacking in the eastern Donbas region forcing Moscow to make a rapid retreat. They made it all the way to the northeastern border in some parts of the country and captured many Russian POWs in the process. Blue and yellow Ukrainian flags were seen flying in over 20 settlements liberated from Russian control. The Russians have acknowledged the setback and claim the withdrawal will be used for troops to regroup. President Zelensky of Ukraine says his forces have taken over 6,000 square kilometers (2316 sq miles) of territory in the east and south since the beginning of September. Momentum has suddenly swung back onto the Ukrainian side in what could be a turning point in the war. In response, Russian military bloggers and supporters of Vladimir Putin have publicly criticized the Russian forces in a rare sign of discontent. Their complaints could be part of an effort to pressure Putin into declaring war to enable a full mobilization of Russian forces. Debates have been permitted on Russian TV about the state of the war and how their military is performing. Some commentators are beginning to panic about the war effort in a repudiation of the Russian government’s narratives. Reports about Russian troops dropping weapons and fleeing could be another sign that Russia’s appetite for war is on the decline. If the Russian forces are unable to counter considerable gains by Ukraine made in the past two weeks, they could be in for a long winter.

More pressure is building up towards GOP senators to support a resolution codifying gay marriage into federal law. Outgoing GOP Sen. Thom Tillis of North Carolina has led the effort to get enough Republicans for the bill to break the filibuster. He is optimistic that questions about religious freedom can be resolved in the legislation this month. Momentum appeared to have stalled when Sen. Johnson (R-WI) reversed his pledge to support the bill despite his swing state election contest. Texas firebrand GOP Sen. Ted Cruz has repeatedly led the conservative advocacy against the resolution and amplified a tweet expressing opposition to it on religious grounds. In contrast, Pennsylvania GOP senate candidate Dr. Oz expressed his support for the resolution and gay marriage in general. Prominent Republicans have been pushing their party to support the resolution from Sen. Susan Collins to former George W. Bush Solicitor General Ted Olson. Nearly 50 Republicans in the house voted with Democrats to get the bill to the senate where it needs 60 votes to overcome the filibuster procedure used to block legislation. A major generational divide has emerged on the right, with young Republicans being much more supportive of gay marriage than their older counterparts. Factors contributing to the divide could be education, secularization, and the language of freedom being applied to gay couples.

Roughly 40 subpoenas went out to people in and around Donald Trump’s orbit and the phones of two of his advisers were seized. The officials are from the former president’s political fundraising and campaign operations including former campaign manager Bill Stepien. The subpoenas seek documents and in some cases testimony in front of a grand jury. Broad in scope, the subpoenas seek information on issues from the Save America PAC fundraising operations to the scheming of the January 6th Capitol riot. Some of the players involved in the DOJ’s January 6th investigation are also involved in the investigations of fake elector schemes in certain swing states. Updates on this DOJ probe will surely come in the near future and after the midterm elections.

Recently fired CNN anchor Brian Stelter has landed a new gig with Harvard’s Kennedy School. He will serve as a Walter Shorenstein Media and Democracy Fellow in the school’s Shorenstein Center where he will convene discussions with threats to democracy and how the media should respond to them. Stelter believes he is bringing the ‘Reliable Sources’ CNN show he hosted to campus for longer discussions about the topics he covered. They will primarily cover the interaction between the modern information system and democratic governance. This position could be a temporary post for Stelter as he looks for a new cable television slot. One lesson students can learn from Stelter’s career in media is that if you are in the right club and serve the right people, you will continue to rise. The minute you are not useful, problems might arise but people like him are protected for eternity.

In his monologue today, Saagar goes through the curious case of Cloudflare as a cautionary tale against caving to online censorship demands. The story concerns a website Kiwi Farms, a message board platform full of vile content that has been completely taken off the internet. These edge cases matter because they set precedent for free speech online. This case came into bloom when twitch streamer and transgender activist Keffals or Clara Sorrenti to get internet service providers to drop Kiwi Farms. Harassment campaigns against her on that platform led to her being swatted, a practice where online trolls call the police on internet personalities. Sorrenti targeted Cloudflare, a security service for websites tasked with preventing attacks. It is practically a utility on the modern internet for high traffic or controversial sites. At one point, the company branded itself as a free speech company and even provided services to white supremacists and terrorist organizations. But everything changed once the great awokening happened and Cloudflare changed its position on giving services to white supremacists. Once the seal was broken, there was no going back for Cloudflare, and the service acted again by taking down 8Chan in 2019 following the El Paso mass shooting. They began as a free speech company but the reality of life online is that there are many terrible people who use it, much to the chagrin of some folks.

With all that background information comes the story of Cloudflare and Kiwi Farms. After Sorrenti’s campaign built up mainstream media support, the company defended its service to Kiwi Farms for free speech reasons. The problem came for Cloudflare when the mainstream media began pressuring them to stop supporting harassment. Nearly overnight, they reversed course and dropped Kiwi Farms. Their decision was celebrated by Sorrenti and professional censors like the Washington Post’s Taylor Lorenz and others in the mainstream media. Cloudflare justified their change of heart by claiming an imminent threat to human life but as journalist Jesse Singal has uncovered, there were exactly two violent threats on the website. Both were immediately taken down, and the harassment campaign against Sorrenti was not violating current law. Effectively, mainstream media and others have made it so websites can be taken off the internet with enough pressure and complaints about your life being in jeopardy. In the case of Kiwi Farms, the problem became bipartisan when Marjorie Taylor Greene called for the site to be removed after she was swatted. When sites can be removed this way, any aggrieved party will try to take advantage of it. These problems should not be litigated by pressure campaigns against single companies because the rules will keep changing with the times. The first amendment has stood the test of time for a reason and we need it online soon.

After the monologue, Krystal and Saagar point out that what matters in this story is an online utility bowing to a pressure campaign from tech journalists to remove a website from the internet. The same thing happened to Andrew Tate who was taken off the internet overnight. It is easy to weaponize claims and create a pressure campaign to force censorship on risk averse companies when there are no rules governing online speech. Transparency and consistent standards are needed instead of depending on the whims of unaccountable corporations making decisions on a case by case basis.

In her monologue, Krystal provides an update on the looming railway workers strike. The Biden administration is in panic mode to avert a strike that could upend the entire economy right before the midterms. Workers have been furious about their mistreatment by corporate bosses, because railways flourished during the pandemic while workers felt the burden. Many workers voted for a strike before but unique railway worker laws enabled President Biden to appoint a board to create a compromise deal. The board’s contract had serviceable wage provisions but ignored the quality of life concerns of workers. So for the two largest unions representing these workers, the compromise is seen as unacceptable. An informal survey of rank and file workers found that 90% would reject the board’s deal and 96% believe they should strike. If no deal is reached, workers will be able to strike beginning on Friday. Instead of pushing for an agreement, management is relying on Congress to impose a deal based on permissions in railway worker law. The bosses are taking advantage of friendly politicians concerned about donors and midterms to get a favorable agreement. Sensing the imbalance, unions issued a statement opposing congressional intervention on behalf of railway bosses. If congress does not intervene, an actual strike could break out and the economic impacts would be enormous. Passenger and freight rail vegetables rotting, consumer goods stuck, backlogs threatening Christmas shopping, and more dysfunctional supply chains. Most of the mainstream press will frame the problem as the workers fault, even as public opinion has become overwhelmingly pro-union. These railway workers cannot even take time off to get a doctor’s appointment without being fired because of draconian attendance policies.

Regardless of who the public blames for the dispute, further economic pain right before the midterms would be a disaster for Democrats. Hence the emergency meetings and panic setting in for the Biden administration and the president himself. They are staring down a September surprise that could wipe out the polling gains made in the past few months. The media is finally waking up to the magnitude of this story and it could be a flashpoint for President Biden.

After the monologue, Krystal and Saagar analyze the actions Congress could take to avert the strike. Rail workers are not being given time off on weekends, sick days, or in emergencies that were not included in the deal by Biden’s board. Somehow Congress will find a way to gets its act together to force a deal in place to prevent an economic shutdown and workers from achieving a deal workers want.

Krystal and Saagar are joined by Washington Post reporter Jeff Stein to discuss conservative lawsuits against Biden’s student debt cancellation policy. Republican lawmakers, Attorneys General, and legal groups will try to block Biden’s student debt plan and the executive authority the White House cited in its decision. They cited a law passed after 9/11 for emergency measures that Republicans will say does not apply to the student loan policy. A key question can be finding someone with legal standing saying they are adversely affected by the student debt policy. If Republicans can find legal standing, their argument against the 9/11 legislation being used for the plan could be effective in court. Plaintiffs could be private loan providers not tied to the government but conservatives have not yet found their ideal plaintiff. Someone who is a taxpayer or did not get loans forgiven will not be enough justification to bring standing because of the vague, indirect effects of Biden’s policy. A current student affected by a tuition cost increase that will not have student debt to pay could be another option conservative explore. They will need a loan servicer willing to bear the financial burden of taking the case and antagonizing the largest client for student loans–the federal government. Biden’s policy could be struck down by the Supreme Court on legal terms if Republicans find their perfect plaintiff because of the weak legal justification in Biden’s executive order. His team chose the 9/11 law instead of a 1965 law giving presidential broad authority on student loans potentially because the courts are not likely to look favorably on the 1965 law. The Department of Education still has time to revise its guidance for the policy but the fact that they have not means the DOE and DOJ see holes in the 1965 legislation. Biden’s speech when he introduced the student debt forgiveness plan hardly addressed the plan as an emergency measure despite it being a part of the White House’s legal memo. Conservatives could use Biden’s words against him because he cited long term social and economic policy reasons for the debt cancellation instead of an emergency measure during a crisis.

Thank you for reading the 9/13 Breaking Points with Krystal and Saagar newsletter. Remember to buy your live show tickets and send feedback about the broadcast! The next full show will be on Thursday and look out for Wednesday content in the meantime!