Debunking Charlie Kirk on “Deep State” regulators

On May 5, Charlie Kirk, founder and executive director of Turning Point USA, published an opinion piece in The Hill headlined “Obama’s silent regulatory army is still on the march.”

Its basic premise: a “deep state” of bureaucrats are continuing to apply Obama-era regulations and hurt US business in defiance of the new Trump administration push for less red tape. But it also shows how Kirk rhetorically turns his readers away from ongoing criticism against their shared values. He does this by turning the central claim of that criticism back at its users. In short, it is a form of “whataboutism” that pushes Kirk away from topics he doesn’t want to deal with.

Three things to notice in Kirk’s op-ed from the start: a return to the conspiracy of a “deep state” but this time Kirk goes beyond law enforcement to political bias; 2) a new attack on “big” government that claims not only its size is a problem, but it is corrupted at the civil service employee level; and 3) a conspiratorial tone but little evidence. (For analysis of another Kirk op-ed, see my analysis of Kirk’s NBC Opinion piece on Trump’s State of the Union.)

Kirk’s topic is Operation Choke Point, a 2013 DOJ move to ‘put the screws’ to, according to The Washington Post, “banks and other third-party payment processors to refuse banking services to companies and industries that are deemed to pose a ‘reputation risk’ to the bank.” While the industries and companies are operating legally, the aim was, according to one summary, “crack down on banks that allowed online scammers to access the payments system.” There were lawsuits by the DOJ and a handful of settlements of those suits by banks. See more here from The New York Times and here from The Washington Post.

The New York Times opined in 2014 that the program was needed because it targeted a massive problem in the financial system: “Federal regulators warned the banks years ago that unscrupulous lenders who themselves could not establish a working relationship with the banks would use third parties to debit accounts. This practice continues. The regulators have told the banks that they need to pay attention to customer complaints and to re-examine their relationships with third-party processors, especially those who represent high-risk businesses like online gambling, online lotteries or online payday lenders.”

As one might expect, the operation became a political issue, with GOP and Democrats on either side. GOP critics said Obama was targeting industries he didn’t like. The Washington Times, a conservative newspaper, wrote in 2014 that “the threat of enforcement has prompted some banks to cut ties with online gun retailers, even if those companies have valid licenses and good credit histories.”

The program was ended in August 2017 by the Trump Administration.

And more than 10 months later, Kirk begins his conspiracy: “There are indications that the entrenched, highly ideological, ethically unencumbered bureaucrats now affectionately termed the ‘deep state’ are continuing to apply the spirit of Operation Choke Point in the regular oversight and rule-making functions of American business.”

What are those indications? What is Kirk’s evidence for such a monumental claim?

The only sentence by Kirk that might be called evidence is this: “The FTC in particular is currently targeting payment processing companies at a shocking rate.” There is no link, no story, nothing to corroborate this claim. [As an aside, Kirk has attacked the other government agency he mentions in the piece, the CFPB.]

It is almost like Kirk wrote this in the summer of 2017 and forget to publish it.

Why do I say that?

The most recent news involving the FTC and these companies as far as I can tell is from August 2017. One legal news website that wrote about a FTC complaint then noted “the FTC seems set on its course of pursuing payment processors it believes knowingly help alleged fraudsters gain access to the payments system.”

I jest about the delayed publication. But let’s be clear. Kirk is not saying Operation Choke Point itself is still happening. He said these employees are working in its “spirit.” What does that mean? Who knows? And it doesn’t matter because the evidence is not there. What Kirk is doing is choosing a hated program on the “right” as a boogeyman to attack any and all regulation by putting the “regular” rules and oversight measures in league with this boogeyman. And he does it all by laying “payment processing” at the heart of our economy (take those processors away and you end all economic activity, he claims). Clearly that wasn’t the case when Choke Point was happening (it targeted payday lenders, to many supporters) and there is no evidence such a claim is happening now. It is all based on fear-mongering.

But then there is the other angle. Kirk certainly cares about “freedom” — the free market, to be precise — but he is also furthering his attack on the “swamp” as a massive obstacle to Trump’s success. The FBI is out to get him. The Democrats don’t want him to succeed. And now employees scattered among at least two agencies in government don’t.

Without irony, Kirk argues the “deep state” here is so “entrenched” even the ending of the program by a new administration can’t kill it. [Here is a former Obama DOJ official who oversaw Choke Point noting in 2016 that then many thought the program was dead.] The “deep state” is so deep to Kirk that not even Congress can kill the program. It has a bill before it that would do just that. Yet Kirk doesn’t mention that.

Instead, in his rush to paint a (false) picture, Kirk targets “agents with unlimited power” who are “not elected” because they are civil service employees. Yes, this does make them “difficult to fire.” But this does not mean in any shape or form they are, as Kirk writes, “accountable only to their written-in-crayon performance objectives for their GS-whatever level.”

For the record, in 2017 the FTC had 1,141 civil service employees. They are overseen by five FTC commissioners, three of whom can be from one party. News reports in April 2018 noted that Trump had “been slow to fill the FTC (commissioner) posts, leaving the agency in the hands of two Obama holdovers.” But Trump got his first FTC nominations passed in April. He now has a full slate of commissioners.

And as we know civil service employees don’t have “unlimited power;” they get their “direction” from these political appointees. And yet Kirk doesn’t mention the power Trump has used and could use. Kirk in fact downplays the fact that Trump’s DOJ ended the program to give credence to his conspiracy about these FTC employees. And it is just that — a conspiracy with no known or stated facts to give it any credence.

The rhetorical purpose should be clear: Kirk is trying to strike at the heart of government. He isn’t just against “big” government, he is against any government. But especially government protected from undue political influence.

Here is a good primer on why our civil service laws are needed. In short, “It is commonly agreed now that most government employees in order to be efficient and impartial need to be protected and prohibited from politics.”

Kirk is twisting this in an about-face.

But to do that, and more importantly by attacking the America system of government for this president, Kirk is promoting the kind of authoritarianism his libertarian ideology would refuse. His implied solution to the “Choke Point” bureaucrats: fire them and replace with people loyal to Trump, who is in Kirk’s eyes against regulations like him. And it should not go without notice that Kirk doesn’t directly state this solution. Why? That would be too transparent.

And of course no one knows who these federal employees actually voted for, what their political leanings are, and how long they have been there (under how many presidents they served).

Kirk groups them together as he does “the Left” and throws them to the online mob spewing hatred at them based on its anti-government fervor.

Not surprisingly, firing civil service employees is something Trump wants to see more of. Experts disagree.

The reasons for firing also need to made clear. Kirk doesn’t just say these workers are incompetent. He says they are corrupt because of their motive: “They want to damage industries, especially the firearms industry, because they don’t fit their dystopic picture of a just world.”

What a load of baloney.

And that brings us to the “whataboutism.”

It should not go without notice that “dystopia” or its adjective form (and also not “fitting” a narrative) was also used this week by the National Rifle Association at its annual convention in Dallas, which Kirk attended. NRA leader Wayne LaPierre noted “the corrupt, lying political and media elites … represent one of America’s greatest threats … you are the very definition of Dystopia.”

And it should not go unnoticed in the last few months the NRA has been tagged by opinion writers and others with promoting a “dystopian” view of America, complete with conspiracies and fear-mongering of a dark future. Here is one example. And here is another.

I point these two facts out to note Kirk’s rhetorical move here — take the label painted on him and his friends and turn it around. It isn’t the NRA that is promoting dystopia; it’s the “deep state.”

Kirk has done a similar move with victimhood.

And this is the rhetorical trick Kirk plays on his readers. It is a form of “whataboutism” that Kirk usually plays, trying to change the subject from lines of reasoning he doesn’t want to deal with.