The Morning Dispatch: The GOP Senate Tightrope

Happy Wednesday! Things are moving very fast all of a sudden: We hope you’ll join us for our special Dispatch Live tomorrow evening after the final presidential debate. Great for if you watched the debate and just couldn’t get enough (unlikely) or skipped it altogether and want to catch up on what went down (much more reasonable). And have we mentioned we’ve got a post-election event coming up?

Quick Hits: Today’s Top Stories

• The United States confirmed 60,582 new cases of COVID-19 yesterday per the Johns Hopkins University COVID-19 Dashboard, with 6.7 percent of the 906,932 tests reported coming back positive. An additional 849 deaths were attributed to the virus on Tuesday, bringing the pandemic’s American death toll to 220,944. According to the COVID Tracking Project, 39,230 Americans are currently hospitalized with COVID-19. (*Due to either a glitch or the reclassification of existing cases, the cumulative case count on the Johns Hopkins Dashboard decreased. We’ve reached out to the dashboard’s creator for clarification, but in the meantime pulled the 60,582 daily figure from the COVID Tracking Project.)

• The Department of Justice filed an antitrust suit against Google, alleging the technology company used exclusionary practices to unlawfully undermine competition. “For years, Google has accounted for almost 90 percent of all search queries in the United States and has used anticompetitive tactics to maintain and extend its monopolies in search and search advertising,” the suit reads.

• According to a Tuesday ACLU filing, lawyers appointed by a federal judge to identify migrant families separated by the Trump administration have been unable to track down the parents of 545 children. The filing says approximately two-thirds of these parents were deported to Central America before being reunited with their children.

• Scientists at Imperial College London, funded by the British government, are moving ahead with the world’s first human challenge trials for COVID-19, in which healthy volunteers will be deliberately infected with the virus in an effort to test the vaccine’s efficacy.

• CBS News’s Catherine Herridge reports that FBI and Department of Justice concur with the assessment of DNI John Ratcliffe that the Hunter Biden laptop and emails were not part of a Russian disinformation operation. “Separate reporting suggests could be part of foreign influence op,” she added.

• Majority Leader Mitch McConnell announced the final Senate vote to confirm Judge Amy Coney Barrett to the Supreme Court will take place on Monday, October 26.

• A Federal Election Commission filing shows that the Senate Leadership fund, a super PAC associated with Senate Majority Leader Mitch McConnell, raised a whopping $92 million in September. The Trump campaign, however, ended September with only $63.1 million in the bank, compared to the Biden campaign’s $177.3 million cash on hand. A recent Associated Press story details how the Trump campaign has spent the more than $1 billion it’s raised since 2017.

• A federal appeals court ruled that North Carolina can continue to count absentee ballots received after November 3, as long as they were postmarked by Election Day.

GOP Senators Distance Themselves From Trump

Texas Sen. John Cornyn—up for re-election this year—told the Fort Worth Star-Telegram over the weekend his relationship with President Trump is “maybe like a lot of women who get married and think they’re going to change their spouse, and that doesn’t usually work out very well.” 

“I think what we found is that we’re not going to change President Trump,” he said. “You either love him or hate him.” Cornyn said he regularly disagrees with the president on COVID-19 stimulus negotiations, China trade policy, and budget deficits, but prefers to keep those disagreements private to be “more effective.”

The Texas senator has since walked back his soft rebuke of the president, telling talk show host Chad Hasty on Tuesday that his comments were “spun up by some of these Beltway pundits who are trying to create a narrative to damage the president and to damage Republicans.” Cornyn is still favored to win his race against Democratic challenger MJ Hegar, but it’s closer than a Senate campaign in Texas ought to be; the Cook Political Report moved the race from “Likely Republican” to “Lean Republican” last week.

Cornyn’s uncomfortably close lead in the Lone Star State—and newfound Trump balancing act—is typical of the plight down-ballot Republicans across the country are facing as the president’s dwindling reelection chances increasingly hamper their own. 

GOP Sens. Joni Ernst of Iowa, Lindsey Graham of South Carolina, Susan Collins of Maine, Thom Tillis of North Carolina, Kelly Loeffler of Georgia, Cory Gardner of Colorado, Martha McSally of Arizona, Steve Daines of Montana, Dan Sullivan of Alaska, and David Perdue of Georgia are—to varying degrees—in a similar boat as Cornyn, facing tough reelection battles in a difficult environment for Republicans. According to FiveThirtyEight’s Senate Forecast, Democrats currently have a three-in-four chance of being in the majority when the next Congress is sworn in in January.

With his majority on the line, Mitch McConnell appeared to grant these vulnerable incumbents permission to break from the president as necessary earlier this month. “I haven’t actually been to the White House since August the 6th,” McConnell said after President Trump’s COVID-19 diagnosis. “Because my impression was their approach to how to handle [the coronavirus] was different from mine and what I insisted that we do in the Senate, which is to wear a mask and practice social distancing.” 

As we reported at the time, a GOP strategist working on a competitive senate race interpreted McConnell’s comments as a signal. “The message to Republicans was pretty clear: You might want to social distance from Trump.”

Some elected officials really took this to heart. In audio reported by the Washington Examiner last week, Sen. Ben Sasse told constituents in a town hall that the president “kisses dictators’ butts,” “sells out our allies,” spends “like a drunken sailor,” has “flirted with white supremacists,” and has “treated the presidency like a business opportunity.” Trump quickly excoriated Sasse in a predictable Twitter tirade, in which he called the Nebraskan “the least effective of our 53 Republican Senators” and a “liability” to the GOP. Given Sasse’s monumental lead in the polls, and his early criticism of Trump’s presidency, it’s safe to say his comments a) were cathartic, b) won’t cost him electorally and c) are in part about jockeying for position in a post-Trump future.

Sasse will withstand Trump’s Twitter tirades, but a strong rebuke from the president cuts deeper for Republican senators whose path to reelection isn’t so straightforward. Sen. Susan Collins, for example, said last month she opposed moving on a Supreme Court nomination before the election. Trump made her pay on Friday.

With just under two weeks until the election, FiveThirtyEight’s model gives Collins just a 36 percent chance of staving off Sara Gideon, her Democratic opponent. While Collins’s stance on the Supreme Court may have helped her shore up support with moderates in Maine, there’s likely a tradeoff. “Of course if [the president] calls you out, that’s going to deflate your numbers with the Republican base,” said J. Miles Coleman, an associate editor for Sabato’s Crystal Ball at the University of Virginia’s Center for Politics. “It’s just this hard tightrope that they’re having to walk.”

No moment better distills this tightrope than Martha McSally’s answer when asked in a debate if she is proud of her support for President Trump. “Well I’m proud that I’m fighting for Arizonans on things like cutting your taxes,” she responded. The moderator asked again. “I’m proud to be fighting for Arizona every single day,” McSally reiterated. Trump’s net approval rating in Arizona is -7, per a recent New York Times/Siena College poll.

North Carolina Sen. Thom Tillis has avoided explicitly criticizing the president on the campaign trail, championing a divided government pitch instead. “The best check on a Biden presidency is for Republicans to have a majority in the Senate,” Tillis told Politico earlier this month, mirroring the strategy many Senate Republicans adopted in 2016 when Trump’s electoral prospects looked slim. “And I do think ‘checks and balances’ does resonate with North Carolina voters.” 

Republicans also successfully adopted this divided government strategy in 1996 once it became clear that Democratic incumbent Bill Clinton would beat Republican challenger Bob Dole in a landslide. “Even though Bill Clinton won the popular vote by nine points, Republicans had a net gain in the Senate,” Coleman said. “So Bill Clinton had very short coattails.”

GOP strategist David Kochel told The Dispatch that Tillis’ divided government pitch is a wise electoral strategy for vulnerable senators who don’t want to invite unnecessary animus from the president. “That’s smarter than getting into an actual situation where you’re criticizing the president in front of his own voters—your voters—who are usually one and the same,” Kochel said. “Most of the campaigns need to try to keep those distractions away and run their own race and not get drug into whatever the daily kind of cable news chatter back and forth is.”

Don’t be surprised if this tentative distancing disappears in the election’s final two weeks, however—at least in television ads. Why? With Democrats and independent voters casting ballots early in record numbers, and with limited resources forcing decisions between persuasion (swing voters) and turnout (GOP base), GOP campaigns will focus on the latter, choosing to motivate base voters to show up rather than trying to win over voters in an ever dwindling cohort of persuadables. And while such base targeting might ordinarily raise concerns of counter-motivation—Democrats who become more likely to vote in response to red-meat GOP messaging—those worries are less relevant in an environment where so many Democrats and independents have already cast ballots.

Big Trouble for Big Tech

In a political climate that has been growing steadily more hostile towards the technology industry, the Department of Justice turned up the temperature even more Tuesday, announcing an antitrust lawsuit against search engine behemoth Google. 

Eleven GOP state attorneys general joined the DOJ in the lawsuit, which asserts that “Google is now the unchallenged gateway to the internet for billions of users worldwide. … American consumers are forced to accept Google’s policies, privacy practices, and use of personal data.”

The Justice Department also said Google stifled potential competition by entering “into exclusionary agreements, including tying arrangements, and engaged in anticompetitive conduct to lock up distribution channels and block rivals,” referencing numerous financial agreements Google made with companies like Apple, Verizon, and Mozilla to make Google their default search engine, leading to an alleged monopolization of the market for online advertising services.

Months of investigations have led to this point, with not only the Trump administration’s Justice Department but also the Democratic-led House Subcommittee on Antitrust looking into the company. Generally speaking, Democrats have focused on the size and market dominance of many big tech companies, as well as what they see as the enabling of misinformation’s spread. More populist Republicans have also become fierce critics of the technology industry—partly for the same reasons as Democrats, but also because they believe search engines and social media companies are biased against conservatives and limit the spread of conservative viewpoints.

President Trump has led this charge. He has for years pushed the Justice Department to investigate technology companies, encouraged the modification of Section 230 of the Communications Decency Act (the law that enables websites to moderate what users post on their platforms without fear of lawsuits), and engaged in high profile skirmishes with Twitter when the company fact-checked his tweets.

But the Justice Department lawsuit largely avoids those issues, focusing instead on Google’s supposed dominance in the search-engine marketplace. “Largely as a result of Google’s exclusionary agreements and anticompetitive conduct,” the suit reads, “Google in recent years has accounted for nearly 90 percent of all general-search-engine queries in the United States, and almost 95 percent of queries on mobile devices.”

The Department of Justice’s move was met with bipartisan praise in Washington. Sen. Josh Hawley—possibly the tech industry’s biggest foe in the Senate—said in a statement that the lawsuit “is the most important antitrust case in a generation,” adding that “this is just a first step, and I will continue to fight for the legislative solutions needed to end the tyranny of Big Tech.”

“Antitrust enforcement against Google is long overdue,” Democratic Rep. David Cicilline—whose House Antitrust Subcommittee recently completed a report about tech industry concentration—said in a statement. “It is critical that the Justice Department’s lawsuit focuses on Google’s monopolization of search and search advertising, while also targeting the anticompetitive business practices Google is using to leverage this monopoly into other areas, such as maps, browsers, video, and voice assistants.”

Some Republican cheerleading of the lawsuit was unrelated to concerns about market concentration. “Big Tech’s out to get conservatives,” Rep. Jim Jordan tweeted. “Attorney General Barr won’t let them get away with it.”

Google Vice President of Global Affairs Kent Walker released a statement Tuesday calling the lawsuit “deeply flawed,” adding that consumers use Google “because they choose to, not because they’re forced to, or because they can’t find alternatives.”

In an interview with The Dispatch, Asheesh Agarwal—deputy general counsel for the pro-tech think tank TechFreedom—said that “the DOJ really misconstrued what the relevant market is” for online advertising, pointing out that “where Google makes its money” is in targeted ads for product searches (for example, a search for shoes showing ads for new shoes as the first few results). Now, Agarwal said, most product searches begin on Amazon rather than Google or other search engines, with companies like Yelp and LinkedIn serving as platforms for finding services.

This early on, it’s very unclear where exactly a legal decision that may take years to resolve will leave Google. The Justice Department’s lawsuit was vague on proposed solutions, saying in its request for relief that the Court should enter “structural relief as needed to cure any anticompetitive harm,” and enact “any other preliminary or permanent relief necessary and appropriate to restore competitive conditions in the markets affected by Google’s unlawful conduct.” 

Court-ordered regulation could include Google being forced to cordon off its various lines of business; YouTube, Google Search, and Google Maps would all be rendered separate entities under this arrangement. But the DOJ or the courts may prove unwilling to go this far. The European Union’s Competition Commission has fined Google nearly $10 billion since 2017 for what it deemed to be anti-competitive practices.

But no matter the outcome of this particular lawsuit, Tuesday’s announcement represents a new era for the technology industry. Even if a Biden administration takes the reins in January, it is widely expected to continue pursuing the case in some form or another. Google, and its Silicon Valley peers, can expect to be subject to far more legal scrutiny than they’ve been before.

“Two decades ago, Google became the darling of Silicon Valley as a scrappy startup with an innovative way to search the emerging internet,” the lawsuit reads. “That Google is long gone.”

Worth Your Time

• According to Yanna Krupnikov and John Barry Ryan, both associate professors at Stony Brook University, the real political division in American society isn’t between Republicans and Democrats, but between the minority of Americans who follow politics closely and the majority who follow casually or not at all. The phenomenon, which they’ve deemed “the attention divide” in an op-ed for The New York Times, exacerbates the perception that the left and the right lack common ground because political junkies get to set the rules for political engagement. “For partisans, politics is a morality play, a struggle of good versus evil,” Krupnikov and Ryan write. “But most Americans just see two angry groups of people bickering over issues that may not always seem pressing or important.”

• We could all use some good COVID news, and NPR has some. “Two new peer-reviewed studies are showing a sharp drop in mortality among hospitalized COVID-19 patients,” Geoff Brumfiel writes. “The drop is seen in all groups, including older patients and those with underlying conditions, suggesting that physicians are getting better at helping patients survive their illness.” According to one of the studies, hospitalized COVID are now three times more likely to make it through their ordeal alive: “Patients in the study had a 25.6% chance of dying at the start of the pandemic; they now have a 7.6% chance.”

Presented Without Comment

Toeing the Company Line

• Longtime pollster and co-founder of Echelon Insights Kristen Soltis Anderson makes her return to The Remnant to talk all things polls with Jonah. In many ways, pollsters have a much easier job this time around. Heavy early voting turnout turns “possible voters” into voters, allowing pollsters to draw more concrete conclusions. But other complications, like invalidated mail-in ballots, make this election difficult to call definitively. Stick around for a discussion about how young Americans are differentiating themselves from earlier generations.

• For David, the Hunter Biden story revealed the simultaneous failures of multiple institutions. “The New York Post should not have published its stories without more comprehensive, transparent efforts at verification. Twitter should not have applied double standards and an unworkable policy to block access to the Post’s story. And neither Republican senators nor the Trump administration should seek to inject the government into the moderation policies of private corporations,” he writes in his latest French Press (🔒). “Leave online free speech alone.” 

• Scott Lincicome tackles Section 230—and calls from some prominent Republicans to amend it—in this week’s installment of Capitolism (🔒). “It strikes me as pretty nutty that the Party of Free Markets, Limited Government, and Economic Growth,” he concludes, “is now working to create a Fairness Doctrine for the internet and thereby hobble a thriving U.S. industry, stifle speech, grow government, and empower its mortal enemies because Twitter, Facebook and YouTube occasionally do stupid things.”

Let Us Know

Declan and Alec got into a friendly argument last night over whether late October is “too early” to start listening to Christmas music. Who’s right? Declan for wanting to extend the joyous holiday season an extra month, or Alec for keeping it squarely a post-Thanksgiving affair?

Reporting by Declan Garvey (@declanpgarvey), Andrew Egger (@EggerDC), Charlotte Lawson (@charlotteUVA), Audrey Fahlberg (@FahlOutBerg), James P. Sutton (@jamespsuttonsf), and Steve Hayes (@stephenfhayes).

Photo by Caroline Brehman/CQ-Roll Call, Inc via Getty Images.