It Doesn’t Take Super Intelligence to Tell What Americans Are Voting Against in the Midterms

In case you have not noticed, politics is a guilty pleasure of mine. In college, I was super active in student government. I was good at it, and I eventually became Executive Vice President of the George Washington University Student Association my senior year, which meant I ran the entire university’s Student Senate. I briefly worked for Al Gore’s 2000 presidential campaign but essentially got fired after the convention in Los Angeles (or at least was not re-hired). After failing to realize my adolescent dream of becoming a political operative, I went to law school, passed the bar, and landed a federal clerkship. Side note: I became a real lawyer, unlike another erstwhile political operative, the new White House press secretary, who says she did not pass the bar. No shame in not passing the bar. But holding yourself out as an attorney without qualifying to be one? Not a good thing.

Thanks to the rules of judicial conduct (which we law clerks took very seriously in those days (2006), I was basically forbidden from partisan political activity. But once the clerkship ended, I immersed myself in local politics. I was back in private practice with a litigation background, so I decided the right move was to run for the committee that helps select the judges the Democratic Party nominates. (In New York City, Democratic nominees almost always win, so it is tantamount to selecting judges.) In Brooklyn, that is an elected office, technically called “District Leader.” I was living by the old adage that there are two types of lawyers: those who know the law and those who know the judge. I was hoping to be the latter. I was also hoping to start a career in politics.

I lost that campaign. There were 120,000 people in the district, and 85,000 were registered to vote. It was a primary, so I was competing for only the 65,000 registered Democrats. Just 9,800 of them voted (about 15%). There were three candidates. About 2,800 people voted for me and 1,800 for another candidate. The guy who won got about 5,000 votes, or roughly 4% of the people who live in the district. He made decisions that affected all 120,000.

It was an important lesson. Everyone invested in the “rule of law” (as all lawyers are, in one way or another) needs to understand what motivates the folks who make those laws. It’s not about appealing to the largest number of people overall. It’s about appeasing the folks they assume will vote. That is one reason, perhaps the primary reason, why political discourse is so divorced from the reality of most Americans. Americans claim to want bipartisan, common-sense solutions to our problems, but the Americans who vote, and what motivates them to vote, are very different.

Politicians love to find issues that voters are super passionate about but that really affect no one, so they don’t need to actually solve any problems. When you hear a politician talk about boys in girls’ bathrooms or Gaza, that is exactly what is happening. Those issues affect almost no one in America, and even if politicians were somehow miraculously solving them, no American would actually be better off. Talking about issues like that is practicing the politics of distraction. If you don’t have any real solutions, talk about something irrelevant. By the way, that is also a dumb lawyer trick we use a lot in litigation: when one claim is a loser, focus on procedure or find something that resonates, even if it’s not relevant to the central claim.

This year, to everyone’s credit, voters seem to be catching on to the politics of distraction and are asking the hard questions and demanding answers. The question is: why is the price of everything increasing except the price I am paid for my labor? In other words, why can’t I afford the life I have, let alone the life I want? Most Americans know that the answers to those questions are not Gaza or girls’ bathrooms.

The 2026 midterms are really a referendum on how we manage the economy. I won’t go into the details here, but suffice it to say that, for everyone outside the top 20% or so (and if you’re reading this, you’re likely in it), we have mismanaged the economy, and people are watching their quality of life slip, at least as measured by economic mobility and disposable income. Americans are looking for someone to blame. Politicians are scrambling and seem to agree that the culprits are AI and Trump’s war in Iran. Sure.

But that is just on the surface. Voters are looking for something deeper and I think something more interesting is happening. See, for the last 80 years, we’ve managed our economy through supposedly “non-partisan” (or only partially partisan) agencies, the alphabet agencies that make most Americans’ eyes glaze over: the FCC, SEC, NRC, OSHA, NIH, etc. Building the administrative state was one of the great triumphs of 20th-century liberalism. These organizations, by design, were complicated. As I often say, complexity is a tool of control: once you create a complicated system, only people with insider knowledge can really figure it out. The folks who understood these systems became the high priests, lawyers and politicians chief among them. Americans are watching these organizations fail to meet the needs of the current economy.

True, some of these organizations work better than others. However, the downside of all of them is that they remove important decisions about the economy from politicians and put them in the hands of unelected officials (many of whom are experts). Those officials are beholden not only to the public and voters, but also to the industries they regulate and the people in those industries they know. Most Americans have lost faith in these organizations.

It’s a vicious circle: one reason we’re failing to regulate new industries is that we lack faith in the ones we have. Last week I explained that, in the absence of any regulation, the AI companies are taking it upon themselves to regulate themselves, creating an oligopoly that seems to be sanctioned by the current U.S. government. Most Americans are numb to it. They assume that if the government regulated, we would get the same result, so why bother? And then nothing gets done.

Courts are also getting in on the game, and this is where things get interesting, because it is more than rhetorical and will really change how we manage the economy. There is a slow revolution underway in how we regulate the economy, and the Supreme Court has been quietly leading it for several years. West Virginia v. EPA, 597 U.S. 697 (2022), said agencies need clear congressional authorization for big decisions. Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), ended deference to agencies’ readings of ambiguous laws. SEC v. Jarkesy, 603 U.S. 109 (2024), sent fraud-style civil penalties to federal court and a jury. Corner Post, Inc. v. Board of Governors of the Federal Reserve System, 603 U.S. 799 (2024), let newly injured businesses challenge old rules. And this month the Court heard Suncor Energy (U.S.A.) Inc. v. County Commissioners of Boulder County, No. 25-170, which asks whether federal law preempts state-law climate claims. My guess is that it does not, although the argument could have gone either way (and with Justice Alito recused, a 4-4 tie would leave Colorado’s ruling standing). That is fine by me: states are, by design, closer to voters than the federal government is. For AI, that likely means state legislatures and lawsuits, like Buist v. Anthropic, not an administrative agency. I made that prediction back in v42, when I wrote that private lawsuits and the companies’ own risk tolerance would set AI’s rules.

Each case answers the same question: who makes the big economic decisions? Increasingly, the answer is not unelected agencies. It is a body voters can actually reach: Congress, which they can fire every two years; state governments; and juries of ordinary citizens. In v14, I worried that we were swapping political regulators for political judges. By v49, I saw these cases as wins for Congress, and I think that view has held up. This is exactly what voters say they want: a government that answers to them, not to unelected officials and the lawyers who know how to work them.

Which brings me back to my district-leader race. The person who won made decisions for 120,000 people on about 5,000 votes, because almost nobody showed up. That is what an unaccountable system looks like, and it is what the administrative state became: big economic decisions made by people you cannot vote out, in rooms you cannot get into, in a language only lawyers speak. The Court is now pushing those decisions back toward Congress, the states, and juries, the people and officials who have to face you. That will be slower and messier, and we may hate some of the results. But it is the first real answer to the question voters are asking: who is accountable for making my life better? That is the question Americans are trying to answer this November.

Keep thinking, keep building

Jesse

Hi, and welcome to my newsletter! I’m Jesse Strauss, Your Fractional General Counsel. I’m a lawyer with a private practice based in New York City, helping clients in the United States and globally with their U.S. legal needs. My expertise spans various areas, including raising funding rounds, employment issues, negotiating master service agreements, intellectual property, compliance, legal process management, and dispute resolution. My focus is on founding and nurturing great companies from seed to exit. Discover more at YFGC.AI and book a complimentary 30-minute consultation. You can also follow me on Threads @lawyerjesse1977, on BlueSky @lawyerjesse.bsky.social, subscribe to my Substack here, and follow me on LinkedIn here.