There are three views on the right of DeSantis’s retaliation against Disney. One is populist. “Woke corporations need to be put in their place. If they want to target the Republican agenda, they should expect to be targeted in turn by state power.”
The second is classical liberal. “Whatever the merits of Disney’s views, they have a right to them. Using state power to punish them is viewpoint discrimination. It contradicts the spirit of the First Amendment and smells of a banana republic.”
The third is a hybrid view typically held by traditional conservatives who are populist-curious, shall we say. “Retaliating against Disney would be questionable if DeSantis intended to follow through on it, but he doesn’t. It’s kabuki. He’s going to figure out a way to undo this. All he wanted was to throw a scare into Disney and other woke companies by showing them what could happen eventually if they don’t stay out of politics. He’s not going to strip them of their district.”
Is that right?
Watch this short clip from an appearance he made today. He says of the bill he signed eliminating Disney’s special improvement district, “That was really the first step in what’s going to be a process to make sure that Disney should not run its own government.” That doesn’t sound like kabuki to me.
MOMENTS AGO: #Florida Gov. #DeSantis: “That was really the first step in what's going to be a process to make sure that #Disney does not run its own government,” Disney will pay Reedy Creek debt. https://t.co/Qrs2SDXVP2 pic.twitter.com/flKgs87RHq
— WPEC CBS12 News (@CBS12) April 25, 2022
Those who hold the hybrid view have failed to understand something DeSantis grasps, which is that the only litmus test that matters in populist politics is the next one. Mike Pence showed slavish loyalty to Trump for four years, but when Trump finally asked him to do something illegal on January 6 and he refused, insurrectionist goons were chanting “Hang Mike Pence” as they pushed into the Capitol. None of Pence’s many previous acts of service to Trump mattered at that point. He had failed the most recent litmus test — a big one, to be sure — and so he was a “traitor.” Instantly.
Charles Cooke at NRO made the point in a podcast last week that the same illogic applies to the Disney mess in Florida. If you support the “don’t say gay” law and you also support DeSantis calling Disney out for failing to apply their allegedly high moral standards to China, the fact that you passed those two populist litmus tests won’t stop you from being called a “traitor” if you fail the next litmus test, whether the state should rescind Disney’s district. DeSantis didn’t need to make that move: It’ll be an administrative nightmare for the neighboring counties, it may inadvertently reduce Disney’s tax and debt obligations (which DeSantis is keen to deny in the clip), it’ll expose Florida to an array of litigation touching on free speech and property rights, and it’s all in service to retaliating against Disney over a policy fight which DeSantis … won.
It’s wholly gratuitous, leaving aside the corrupt intentions that motivated it. But now that taking away Disney’s district has become the new litmus test, none of the earlier litmus tests in this dispute matter. If you conclude that rescinding the district is a step too far on the legal or policy merits, you’re a sellout.
Which is why I think the camp that holds the hybrid view is in for a rude awakening. DeSantis won’t treat this as kabuki because he can’t. To do so would be to fail a superfluous litmus test of his own creation, the rescission of Disney’s district. In populist politics, the best thing is to fight and win; next best is to fight and lose; but to stop fighting is unforgivable. Expecting DeSantis to give Disney back its district is asking him to stop fighting. If he were to do that and run for president in 2024, Trump would spend every day of the primaries calling him a coward for not following through with Disney. And DeSantis knows it.
So I think he’ll have to follow through. As expensive and inefficient as that may be for Florida and its counties, and as much as it may discourage companies from initiating new business in Florida for fear of running afoul of the governor’s whims, the logic of the litmus test compels this self-destructive behavior. I think DeSantis has gotten high on his own applause to some degree lately and needs to feed the addiction by promising even more punishment for Disney. Just listen to the crowd in the clip as he vows, without specifics, to somehow magically obviate all of the negative fiscal and administrative consequences of eliminating Disney’s district.
His best hope of being let off the hook for his own recklessness without failing his litmus test is a court bailing him out. It could happen, writes David French:
In 1993 the mayor of Northlake asked the owner of O’Hare Truck Service for a political donation and for his support for reelection. The owner, John Gratzianna, refused the donation request and supported the mayor’s opponent. Gratzianna’s candidate lost, the mayor won, and then the city promptly removed O’Hare from the towing rotation list.
The Supreme Court ruled against the city. Writing for a 7–2 majority, Justice Kennedy called back to a line of cases noting that there are times when “denying a benefit” can have the same effect as direct coercion: “[I]f the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to ‘produce a result which [it] could not command directly.’”
In plain English, this means that the government cannot use its awesome power of contracting, employment, permitting, and taxation to reward political and ideological friends and punish political and ideological enemies. Indeed, the Court specifically dismissed the government’s so-called patronage interest as an excuse for viewpoint discrimination in government contracting.
Disney doesn’t have a right to its own improvement district from the state but neither does the state have the power to rescind a privilege if its motive is corrupt. French points to the simple example of a job interview. A job is a privilege, not a right, regardless of whether you’re applying for a state job or one in the private sector. But if the interviewer tells you that he doesn’t hire your kind because of your race or political viewpoint, you’ve been denied a privilege illegally. The same may be true of Disney with its district, particularly since every Republican official in Florida seems keen to make clear just how retaliatory their motive in this case was. That’s a bizarre thing to do given how sensitive courts are to viewpoint discrimination but it makes sense within the crude logic of populist politics: The only thing sweeter than owning the libs is making sure they understand they’ve been owned *because* they’re libs. That’s what DeSantis and his circle have done. They’re likely to pay for it in court — which, ironically, may spare them the practical consequences of their illiberalism.