In her testimony to the House Judiciary Committee last December, Stanford Law Professor Pamela Karlan floated a now-prescient hypothetical: what would we think if Trump conditioned disaster relief on a state’s willingness to go after his political opponents? Today, we are faced with the possibility that the President will use this crisis as an opportunity not only to demonize the opposition, but also to punish the states unlikely to support him, and reward those that do. This politicization and personalization, shocking in peacetime, is particularly corrosive in a time of pandemic and crisis.
The politicization of government resources often smacks of corruption, even when it is not illegal. Impartiality is a cornerstone of the rule of law. But in practice, adhering to impartiality is challenging. The centuries-old practice of patronage, whereby government benefits are allocated according to criteria of loyalty or support rather than of impartiality, is one of the most difficult problems to eradicate in democracies. In the United States, it took a series of high-profile corruption scandals and a presidential assassination in the late 19th century before leaders implemented safeguards against patronage. These safeguards replaced patronage with meritocratic hiring and promotion in the civil service (the Pendleton Act) and banned political activities by Federal employees (the Hatch Act), for example. While we know that politicians can still exercise discretion in how resources are allocated, we no longer expect our leaders to think like old-school ward bosses when distributing aid.
How, then, might we think about what’s happening in the midst of a global pandemic that has essentially shut down the American economy? While we don’t have all the answers just yet, there are early indicators that the President is using wide latitude to direct supplies to his supporters and to benefit businesses close to him.
Politicization of resources is both more likely and more obvious when resources are scarce. There were problems with the Federal stockpile of supplies in the early weeks of the COVID-19 crisis. Not only were supplies limited, but the stockpile itself was underfunded, and overseen by unclear lines of authority. Beginning in late March, oversight of the stockpile was transferred to the Federal Emergency Management Agency (FEMA), but FEMA and the administration have been opaque about the decision-making process behind allocation of supplies.
In early April, hospitals and clinics across seven states reported to the Los Angeles Times that supplies they had ordered were being seized. FEMA has denied the seizures of materials such as personal protective equipment (masks and gloves) and COVID-19 test kits. Last week, a letter to the New England Journal of Medicine detailed the interdiction of supplies by the FBI and Department of Homeland Security somewhere in the mid-Atlantic; the supplies were going to facilities in Massachusetts. While the Federal government could theoretically coordinate supplies among the states, Trump has instead told governors to procure supplies for themselves on the open market, pitting them against not only each other, but against the Federal government as well.
Michigan Governor Gretchen Whitmer, who early in the crisis was denounced as a “half-wit” by the President, noted that vendors were being told not to send supplies to Michigan amidst the President’s attacks. Similarly, he attacked Governor Jay Inslee of Washington as a “snake,” and last week the PeaceHealth hospital group (which operates hospital in Washington and Oregon) noted supplies they ordered had been diverted by the Federal government. Trump has demanded appreciation from governors, noting that the Federal government is not a “shipping clerk.” He instructed Vice President Mike Pence to ignore certain governors seeking Federal assistance: “If they don’t treat you right, I don’t call.”
The governors of many states have pleaded with the President to ramp up production of medical supplies by invoking the Defense Production Act; Trump has asked them to stop complaining. Last week, the House Committee on Oversight and Reform released data on the distribution of supplies to states. The LA Times calculated that supplies did not seem to be distributed according to states’ requests, or according to need. Medical workers in hard-hit areas like New Jersey, New York, Washington, and Michigan received little relative to states like Montana and Nebraska. Similarly, the Paycheck Protection Program’s coronavirus-relief loans being administered by the Small Business Administration went disproportionately to small states that vote Republican; California, New York, and Washington, DC received the fewest loan approvals.
We are still in the middle of this crisis, with more supplies and loans yet to be administered. Perhaps by the end of this, the amount that states received from the Federal government will better reflect the states’ populations or rates of COVID-19 infections. But the early indications seem to be that the Trump Administration openly politicized the disbursement of aid, with potential life-and-death consequences. While this may seem routine given decades of rising polarization and routine Trumpian politics, we need to be vigilant against a return to patronage practices that further undermine democracy.
Patronage also allows for rent-seeking by certain industries and businesses with connections to political leaders. When politicians use their influence to provide contracts or opportunities to their families or businesses, patronage edges closer to outright corruption. In developing and implementing Federal loans and bailouts for coronavirus relief, Trump has tried to protect his own business interests, and is using family connections to choose companies receiving government aid. Further, he is using the distribution of funds both to decrease congressional oversight and to replace potential opponents with political loyalists.
Unlike other Presidents who divested themselves from their business interests, Trump placed control of the Trump Organization in the hands of his three children. He then gave his daughter, Ivanka Trump, and her husband, Jared Kushner (who also runs his own company) security clearances and White House jobs. In congressional debates about the coronavirus stimulus package, the Senate tried to bar businesses controlled by the nation’s elected leaders from receiving loans. A Republican version of the bill, on the other hand, allowed the Secretary of the Treasury to distribute funds to businesses (including hospitality and hotels) without needing to report the distribution.
Ultimately, while the bill’s language does not allow the President to benefit directly from the bailout, his hotels and wineries could still qualify for loans. More troublingly, Trump issued a signing statement with the coronavirus relief bill that the inspector generals overseeing funds must report directly to him, instead of Congress; Trump also sacked the independent inspector general overseeing the disbursement of funds at the Pentagon, Glenn Fine. (This happened alongside the sacking of Michael Atkinson, the inspector general of the intelligence community, who handled the whistleblower complaint about Trump’s actions in Ukraine that led to his impeachment.)
In addition to the politicization of coronavirus aid, Trump is also directing family members to intervene in decisions about which industries will be tapped for procurement of medical supplies. On Thursday, April 2, Jared Kushner led the White House’s coronavirus briefing; he is now working directly with FEMA to oversee distribution of medical supplies. He referred to the Federal stockpile as “ours” (that is, the Federal government’s) as opposed to that of the states; he touted his ability to manage what people need better than state leaders can. While Kushner does not have an official position, he is reportedly overseeing the supply-chain group within Mike Pence’s official task force. He has invited personal friends from private industry to bring an “entrepreneurial approach” to the task force, and he reached out to his sister-in-law’s (the model Karlie Kloss’s) emergency-room-physician father for advice on supplies.
So far, his supply chain group is intervening to favor large American companies, running counter to FEMA’s practice of procuring supplies from small local vendors at the regional level. The Federal government is subsidizing companies like FedEx, UPS, and DuPont that help “redirect” supplies through a partnership called Project Airbridge. Further, while these companies must manufacture products for the Federal stockpile, they are free to sell roughly half of these supplies on the open market as well.
It is not unusual for the government to work with private industries in wartime, or during crisis—indeed, in the United States, there is a long history of it. The problem is when politicians use these connections for material benefit, allowing the enrichment of themselves or of their allies. Building an impartial administrative state at the national and local levels was one of the foremost challenges in the history of American democracy. The Trump Administration has sidelined experts in favor of family and loyalists; it has shrouded its decisions in secrecy; and it has given preferential treatment to businesses and industries in which it has personal interests. Once this is all over, we will need a full, transparent accounting of the politics behind this crisis—and potentially a new set of laws that reclaim the values that govern our democracy.