No Influence

Clearly, when one holds constant net interest group alignments and the preferences of affluent Americans, it makes very little difference what the general public thinks. … [A]dvocates of populistic democracy may not be enthusiastic about democracy by coincidence, in which ordinary citizens get what they want from government only when they happen to agree with elites or interest groups that are really calling the shots.

– Martin Gilens and Benjamin Page
Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens” (2014)

This week’s featured articles are “Democracy By Coincidence” and “Rights Are For People Like Us“.

This week everybody was talking about the anniversaries

It’s Marathon Day in Boston, which brings back memories of last year’s marathon. I want to make a claim for having been right in my article “Maybe 9-11 Can Be Over Now“. Then I imagined that the Boston Marathon Bombing could be an anti-9/11, one where heroes saved people rather than dying in the attempt, one that we faced and dealt with as it happened, rather than having unresolved issues we had to take to Afghanistan and Iraq.

I think that happened. Something has gone out of the 9-11 mythology in the last year. It’s just not fresh any more. I think we exorcized those demons.

Yesterday was the 15th anniversary of the Columbine shooting. There, I wish I had such an upbeat story to tell. As Mother Jones put it:

Nothing changed after 13 people were killed at Columbine, or 33 at Virginia Tech, or 26 at Sandy Hook. Each of those tragedies came with the same breaking-news urgency as Columbine, but none generated the same sense of expected action because fewer and fewer people actually believed things could change.

and Ukraine

The Geneva agreement to corral the unrest in eastern Ukraine is faltering. The pro-Russian militants who have occupied several public buildings in various cities have ignored it, and yesterday a shoot-out near Slaviansk killed three people.

Somebody in the eastern Ukrainian city of Donetsk distributed leaflets saying that Jews had to register with the city’s self-appointed pro-Russian separatist government. No one is claiming responsibility for the leaflets or actually registering Jews. It may be a joke, a provocation, a trial balloon … who knows? I mention it just because you may have heard about it.

and right-wing extremists like Cliven Bundy and Frazier Glenn Miller

I discuss Cliven Bundy in “Rights Are For People Like Us“. Frazier Glenn Miller is the 73-year-old KKK grand dragon who shot at three Jewish centers in Kansas City, killing three people, none of whom were Jewish.

Miller’s case prompted a meta-discussion on the left. Rachel Maddow wondered why the media treats each act of right-wing terrorism as a unique event, rather than yet another instance of right-wing terrorism. CNN’s Peter Bergen wrote:

Now let’s do the thought experiment in which instead of shouting “Heil Hitler” after he was arrested, the suspect had shouted “Allahu Akbar.” Only two days before the first anniversary of the Boston Marathon bombings, this simple switch of words would surely have greatly increased the extent and type of coverage the incident received.

Bergen claims right-wing terrorists have killed 34 people in the United States since 9-11, compared to 21 by jihadists. Remember that report that Homeland Security had to withdraw in 2009 because conservatives found it upsetting?

and Easter

Not many people celebrate a really old-fashioned Easter any more.

and you also might be interested in …

Once again: What’s the matter with Kansas? You might think getting the First Lady to speak at your high school graduation would be cool, particularly since her husband can’t run again, so there’s no way this is a campaign speech. (I can’t remember who spoke at my high school graduation, which says it all. Four years later, some congressman talked about farm policy at my Michigan State graduation. I was jealous of the Harvard grads, who got Solzhenitsyn that year.) But no. In Kansas, parents think having Mrs. Obama speak will take “the glory and shine from the children.”

Meanwhile, Kansas Congressman Tim Huelskamp makes this amazing claim:

But the numbers we see today is that — as I understand them — we believe there are more people uninsured today in Kansas than there were before the president’s health care plan went into effect.

No idea where he got those numbers; his office won’t say. Gallup has Kansas’ uninsured rate dropping from 16.2% in 2010 to 12.9% this January. In general, the uninsured rate has dropped faster in states that have embraced ObamaCare by extending Medicare and setting up a state insurance exchange; Kansas has done neither.


If you’ve ever downloaded a Cheerios coupon or liked General Mills on Facebook, I’ll bet you didn’t know that General Mills thinks you’ve given up the right to sue the company. I’m considering posting a small-type notice outside my door notifying visitors that by entering my apartment they’ve given me the right to sell their first-born children into slavery. Not that I’d actually do it; I’m such a nice guy, after all. But it might a useful power to have, just in case.


Game of Thrones humor: An honest trailer (with spoilers). Tail wags dog: George R. R. Martin is “a rogue enthusiast … who has written five whole volumes consisting solely of spoilers for the popular television show.” A social-media-company version of the title sequence.


See if your city has a judgmental map.


Elizabeth Hand says she was “saved by ObamaCare“. When are stories like that going to get the kind of media traction that the debunked horror stories did?


Jonathan Chait says that the belief that objective data can lead to nonpartisan or bipartisan solutions is itself a liberal notion.

Evaluating health care, or other government programs, by objective criteria sounds perfectly neutral. But to do so is to disregard the deep moral belief held by most conservatives that big government is inherently wrong. The empirical evenhandedness of the new data journalists is a wonderful contribution to American public life. It is, however, anything but politically neutral.


The Daily Beast pulls together several recent sex scandals in the Christian patriarchy movement to make this point:

The “pitch” of Biblical patriarchy … is that women will be coddled and worshipped in exchange for giving up their ambitions and the autonomy to practice an extreme form of female submission. The unpleasant truth is that a culture that teaches that women are put on Earth for no other purpose but to serve men is not going to breed respect for women. Instead, these incidents show a world where men believe they can do whatever they want to women without repercussions. Is it any surprise that a subculture that promises absolute control over women will attract men who want to dominate and hurt women?

and let’s end with something cool

like maybe a solar-powered electric tricycle with a trunk big enough for groceries.

Or, if you only want 84 mpg:

Rights Are for People Like Us

Those high-flown principles put forward by the militiamen defending Cliven Bundy’s rights … do they apply to anybody else?


The best summaries I’ve seen of the conflict between Nevada rancher Cliven Bundy and the federal Bureau of Land Management are from the local St. George News and the Washington Post. Cutting it down somewhat: the BLM charges that Bundy has been grazing his cattle on public land without paying grazing and tresspass fees for 20 years. (They got their first court order telling him to stop in 1998; he ignored it.) The claimed fees now amount to over $1 million, and so April 5 the BLM started seizing some of Bundy’s illegally grazing cattle.

Self-appointed defender of Freedom.

Armed militiamen who support Bundy started gathering at a camp on April 10, and on April 12 the BLM backed down after what the Las Vegas Review-Journal described as “a 20-minute standoff … [w]ith rifles pointing toward each side”. The BLM released a statement:

Based on information about conditions on the ground, and in consultation with law enforcement, we have made a decision to conclude the cattle gather because of our serious concern about the safety of employees and members of the public.

The Bundy Ranch blog described the scene like this:

The result was a group of Bundy’s family members and supporters making a slow advance on a line of armed agents who kept ordering them to halt. At one point, the protesters were even told “one more step and you’re dead,” but the group kept coming, eventually walking easily through the line of federal agents and SWAT members who obviously didn’t have the courage of their convictions. According to InfoWars, the BLM had already announced it was leaving, but the county sheriff refused Bundy’s demand to disarm the federal agents and return his cattle. Within about a half hour, the cattle were released from the federal pen.

In other words, federal agents tried to enforce the law, were met with armed resistance from a mob, and decided to temporize rather than start killing people. On the extreme Right, this was celebrated as a victory for Freedom. Bundy’s son said, “The people have the power when they unite. The war has just begun.”

And the mainstream Right went along. The Powerline blog wrote “Why You Should Be Sympathetic Toward Cliven Bundy” while admitting “legally, Bundy doesn’t have a leg to stand on.” National Review‘s Kevin Williamson made “The Case for a Little Sedition“, saying

Of course the law is against Cliven Bundy. How could it be otherwise? The law was against Mohandas Gandhi, too

Fox News commentator Andrew Napolitano described the BLM (and not the miltiamen) as “a group of thugs dressed in military uniform with loaded M16s pointed at a rancher and his family.” Fox News produced this sympathetic segment, in which National Review editor Rich Lowry described the resistance as “in the finest American tradition of civil disobedience going back to Henry David Thoreau.”

To me, the Bundy incident has captured much of the basic sickness of conservatism in America: The rhetoric is full of high principle, but it’s hard to find any actual principle that would apply to anyone other than People Like Us — people like the people who belong to the conservative fringe.

It’s tempting to characterize this kind of thing as racism. Certainly that’s what the NYT’s Timothy Egan is suggesting with:

If you changed that picture to Black Panthers surrounding a lawful eviction in the inner city, do you think right-wing media would be there cheering the outlaws?

But it’s more subtle than that. Probably a black man who behaved like a far-fringe-rightist in all other ways could become People Like Us and come to have similar “rights” recognized. But the Black Panthers are clearly not People Like Us, so it would be an absolute horror if they were to arm themselves and resist the law. Likewise, it would be a horror if a Hispanic militia decided to liberate one of Sheriff Arpaio’s detention camps for immigrants. If some miltiamen got killed in such an attempt, I doubt Fox News would lament about “government overreach”. The Occupy protesters weren’t People Like Us, so they could be thrown off public land with impunity. Imagine the outrage if Occupy had militarized Zuccotti Park!

One of the reasons Bundy is supposed to deserve sympathy is that “his family has been ranching on the acres at issue since the late 19th century”. You can imagine how far similar sympathy would extend if armed Native Americans were threatening to kill whites over land their people had been hunting and fishing on for thousands of years. Hispanics have been wandering back and forth across the Rio Grande for centuries, but if they do it today, we have to enforce the Rule of Law. If people get killed, well, so be it.

But not People Like Us. When we feel wronged and take up arms, everyone should sympathize, the government should show restraint, and the media should re-litigate our case to the general public.

A number of Bundy’s sympathizers are rehashing the bizarre claims he has made in court: that the federal government can’t own land inside a state, or that the federal government is itself illegitimate. Bundy repeatedly refers to the federal government’s ownership as “unconstitutional”, probably because his reading of the Constitution never got as far as Article IV:

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States

This is why we have courts, to adjudicate disputes like this. Bundy made his argument in court and lost. Most people don’t then get to appeal their case to the Court of Nuts With Guns. But People Like Us do.

Whenever Bundy supporters are given media time, I would like to see them challenged to state their position in such a way that they would support similar rights for people not at all like them and not already part of the conservative movement. And I’d like to see mainstream conservative pundits confronted with a different challenge: Are there any limits to what you will support if the people doing it are on your side?

Democracy By Coincidence

A new study concludes that We the People sometimes get what we want, but not because we have any real power.


For months after the Sandy Hook shootings, polls showed that large majorities of American voters wanted at least some strengthening of gun control laws, with support for universal background checks on gun buyers reaching the almost unheard-of level of 90%. A well organized and well funded interest group, the National Rifle Association, opposed this groundswell of popular opinion and won. A bipartisan bill that expanded background checks to sales at gun shows (and included a specific ban on the national gun registry the NRA said the proposal would lead to) failed in the Senate.

Recently, hopes for gun control rose again — not because of any further increase in its popularity, but because one rich man (billionaire and former NYC Mayor Mike Bloomberg) announced his intention to spend $50 million on the issue.

Forget for a moment the specific arguments for or against gun control: Does that resemble any process you studied in civics class? Do you think that’s what Lincoln had in mind when he talked about “government of the people, by the people, and for the people”?

There are plenty of other examples where the public has a definite opinion, but has been unable to get the result it wants: getting the NSA to stop tracking our phone calls, sending some bankers to jail after the known crimes of the housing bubble, or even things I disagree with, like prayer in public schools. One current issue is raising the minimum wage: It’s popular, but so far that hasn’t made much difference.

In addition to individual issues, consider our presidential primary process, an elimination race in which candidates compete until they run out of money. Until the 2012 cycle, you could argue that (while money was certainly influential) the voters were still driving the feedback process between money and elections: success at the polls led to contributions that keep the campaign going long enough to have another electoral success.

But the first presidential cycle after Citizens United worked a little differently: Casino billionaire Sheldon Adelson kept Newt Gingrich’s campaign going single-handedly, contributing $16.5 million. (Adelson went on to spend at least $98 million on the entire 2012 election cycle, a drop in the bucket for a man worth $37 billion. To get some perspective, imagine 37,000 millionaires each contributed $2650. Collectively, they would equal one Sheldon Adelson.) Rick Santorum, the other Romney challenger to survive deep into the process, had his own billionaire backer contributing millions of dollars: Foster Friess.

So if Romney (worth $250 million himself) had stumbled down the stretch, the only candidates in a position to benefit had been put there by individual rich men. Those without a billionaire backer were long gone. Does that resemble any process you studied in high school?

As persuasive as such stories may seem, they’re only anecdotes. People who think American democracy is working fine can find their own anecdotes in which popular opinion changes and something happens, apparently as a result. Majorities initially supported the Iraq invasion, especially in the early days when it appeared to be succeeding. But as the war dragged on, the public turned against it, and our combat troops are out now. Maybe the withdrawal took longer than it should have, but ultimately the voters got what they wanted.

In 2008, Barack Obama and the Democrats ran on a health plan very much like ObamaCare. They won huge majorities and implemented the program they ran on. In 2010, Republicans ran on deficit reduction, won, and the deficit has been considerably reduced. That’s democracy in action.

My anecdotes, somebody else’s anecdotes — who’s right? That’s the question political science professors Martin Gillens of Princeton and Benjamin Page of Northwestern set out to answer in their paper “Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens” which will appear in the Fall issue of the refereed journal Perspectives in Politics published by the American Political Science Association.

Gillens and Page (or more likely their graduate students) examined “1,779 instances between 1981 and 2002 in which a national survey of the general public asked a favor/oppose question about a proposed policy change”. They stipulated that the questions had to be specific enough to determine four years later whether or not the public had gotten its way, and that the results had to be broken down by income. They also compiled lists of major interest-group organizations (trade groups, labor unions, groups focused on single issues like abortion, mass-membership groups like AARP, etc.) and their public positions on these issues, then constructed an index (“Net Interest Group Alignment”) to measure the overall interest-group pressure on each issue.

From there, what makes the analysis difficult is that the policies favored by average citizens, wealthy citizens, and interest groups often overlap, so some advanced statistical juggling has to be done to determine who’s driving the bus and who’s just riding on it. (For example, you and your neighbor may have disagreed about background checks at gun shows, and one of you got your way. But was the really significant argument between you and your neighbor, or between the NRA and Mike Bloomberg?) I haven’t examined the specific techniques Gillens and Page used, but the general idea is that the variables that predict the outcome most often are assumed to be more powerful, and the power of the remaining variables is assessed after the influence of the more powerful variables is factored out. (Or, simplifying a bit, when public opinion and wealthy opinion contradict each other, who wins?)

Here’s what they concluded:

These results suggest that reality is best captured by mixed theories in which both individual economic elites and organized interest groups (including corporations, largely owned and controlled by wealthy elites) play a substantial part in affecting public policy, but the general public has little or no independent influence. …

Since the preferences of ordinary citizens tend to be positively correlated with the preferences of economic elites, ordinary citizens often win the policies they want, even if they are more or less coincidental beneficiaries rather than causes of the victory. … In any case, normative advocates of populistic democracy may not be enthusiastic about democracy by coincidence, in which ordinary citizens get what they want from government only when they happen to agree with elites or interest groups that are really calling the shots.

The authors realize that this paper represents an incomplete theory. They don’t, for example, come up with a formula that reliably predicts policy outcomes from elite opinion and interest group alignment. The degree of correlation they find isn’t large enough to suggest that such a formula is possible; probably other variables are at work as well. For example, they aren’t modeling

  • the views of opinion-makers who are only incidentally wealthy (like Glenn Beck, Anderson Cooper, or Rachel Maddow);
  • the interests of entrenched government bureaucracies like the Pentagon or the Federal Reserve;
  • the option-shaping power of academic elites at universities and think tanks.

or any of the other factors bound up in the idea of “serious people”. (The influence of “serious people” shows most clearly in issues like NSA spying. I don’t think the wealthy are any happier about having their calls logged than the rest of us, and there’s no NRA-like group that defends domestic spying. But “serious people”, like the ones who are presented as experts on the weekend talk shows, don’t make the case for reining in the NSA, and people who do aren’t taken seriously.)

In addition, the authors recognize weaknesses in their data that they believe understate the influence of the very wealthy. After all, even a poll that breaks down results by income isn’t going to provide a significant sample of billionaires. (The authors estimate the opinions of the wealthy by using data about the richest 10% of responders, figuring that the differences between opinion at the 50th percentile and the 90th percentile are indicative of greater differences higher up the ladder.) A method that more directly measures the views of the 1% or the .01% might find an even greater correlation with policy outcomes.

We also don’t know why there’s an overlap between elite opinion and public opinion. Perhaps the wealthy are paternalistically trying to do what’s best for everybody. (Mayor Bloomberg appears to have no personal stake in limiting guns, and Bill Gates‘ kids aren’t likely to need the public schools.) Perhaps public opinion itself has already been shaped by the influence of the rich. (Think of all the working-class people who vehemently oppose “the death tax” — not realizing it’s not triggered until your estates exceeds $5 million.)

Finally, there’s a point of view that says elites should run things. Maybe, as a class, the rich are more educated, better informed, and more insightful than the rest of us. (Then again, maybe our public discussion of poverty has such an abstract, other-worldly quality because the rich people whose opinions really matter don’t know any poor people.) That’s certainly a discussion worth having, but we ought to have it honestly, recognizing that we’ve decided to abandon all our 1776-ish rhetoric about government being founded on the will of the People.

Worst of all, though, is the thought of how that discussion would be judged: The elite wouldn’t have to convince the general public that they deserve to lead, because the opinion of the general public really doesn’t matter. Instead, the public would have to convince the elite that we deserve to be listened to.

The Monday Morning Teaser

Last week I wrote about the Supreme Court’s ongoing destruction of campaign finance laws. This week’s most striking story concerned why such laws are necessary and should be expanded rather than struck down: A research paper by two political scientists examined 1,779 separate political disputes between 1981 and 2002 (before John Roberts began his defense of rich people’s right to buy influence), compared them to measures of public opinion broken down by income, and concluded that ordinary voters get their way only when they happen to agree with either the rich or with organized interest groups (especially business interest groups). “Clearly, when one holds constant net interest group alignments and the preferences of affluent Americans, it makes very little difference what the general public thinks.” The paper described the American political system with a particularly telling phrase that gives this week’s first featured article its title: “Democracy by Coincidence”.

The other story that struck me this week was the armed mob that successfully defended the cattle of freeloader and public-land-abuser Cliven Bundy from government seizure. Bundy and his defenders put forward many ideas that sound like high-minded principles, but it is hard to imagine a situation where those principles would apply to anyone other than People Like Us. (Didn’t Occupy Wall Street claim a right to use public land? Did the militia movement rush to their defense?) And mainstream conservative pundits are somehow unable to separate themselves from this radical, violent fringe of the conservative movement. I’ll have a second featured article about that, but I haven’t titled it yet.

The weekly summary will discuss the marathon-bombing anniversary, developments in Ukraine, Kansas parents trying to stop the First Lady from speaking at their kids’ graduation, and a few other short notes, before closing with video of two amazing new vehicles that don’t need a lot of fossil fuel.

As a wild guess, expect “Democracy By Coincidence” between 9 and 10 (Eastern), and the Bundy article before noon, with the weekly summary coming a little bit later.

 

Roberts at the Bat

I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it’s my job to call balls and strikes and not to pitch or bat.

John Roberts (2005)

This week’s featured articles are “This is What Judicial Activism Looks Like” and “Who Should Be Beyond the Pale?

These last two weeks everybody has been talking about the Supreme Court

By now you’ve undoubtedly heard about the Court’s McCutcheon decision, which I discuss in “This is What Judicial Activism Looks Like“.

Chief Justice Roberts wrote the plurality’s opinion; his reasoning revolves around protecting the right of citizens to give the maximum $5200 per election cycle to as many candidates as they choose. But of course, the only citizens whose rights are actually affected are those who would like to give more than $123,200 to candidates, parties, and PACs during the 2013-2014 election cycle. According to the Federal Election Commission, only 646 people reached the limit during the 2011-2012 cycle. It goes without saying that these are 646 very wealthy people. So if you read Roberts’ opinion, I recommend doing a global-search-and-replace on the text to replace “citizens” with “very wealthy citizens”. For example:

The Government has a strong interest, no less critical to our democratic system, in combatting corruption and its appearance. We have, however, held that this interest must be limited to a specific kind of corruption — quid pro quo corruption — in order to ensure that the Government’s efforts do not have the effect of restricting the First Amendment right of very wealthy citizens to choose who shall govern them.

I think that makes the meaning much clearer.

and ObamaCare passed its sign-up goal

Yes, after all that angst about the web site, after the Koch brothers and their allies spent massive amounts of money on an unprecedented disinformation campaign, after the media fell for countless false ObamaCare horror stories, the number of sign-ups hit 7.5 million, somewhat more than the CBO’s original projection of 7 million. The reason is pretty simple: A lot of Americans need affordable health care, and the Affordable Care Act provides it.

That success allowed Kathleen Sebelius to resign with a rosy glow rather than slinking out of town defeated. Her replacement has already been named, but you can expect the confirmation hearings to be a circus, as Ted Cruz is looking on this as yet another chance to repeal ObamaCare. I think Democrats should sell popcorn for this circus, because it’s going to be a public orgy of mean-spiritedness that will not do the Republican Party any good. One of the reasons I haven’t been panicking about the projections for the fall elections is that the whole Republican strategy revolves around exploiting the failure of ObamaCare. What if we get to November it’s obviously not failing?

In fact, what if Democrats hit back hard? I suggest something like: “According to independent research, Republicans’ refusal to expand Medicaid has killed X Floridians this year.” They’ll squeal like stuck pigs, but I like the conversation where they’re saying “No, we’re not killing people.” (Yes, they are killing people.)

It’s not like Republicans are running away from this fight: Those in the Virginia legislature are threatening to shut down the state government rather than start saving the lives of the working poor.

Republicans are of course hanging on to the trainwreck narrative. But it’s worth pointing out that the point where the whole program explodes keeps receding into the future. Every prediction they’ve made that is checkable hasn’t panned out.

and equal pay

Last Tuesday was Equal Pay Day, the theoretical point where working women have finally made as much money as men did in 2013, given an average wage 77% of a man’s wage.

There’s been a lot of discussion of that number these last two weeks, with conservatives arguing that it’s meaningless, because women do different jobs, have different qualifications, choose a different career path, and so on.

I tried to understand the statistics myself a couple years ago, and my overall conclusion was that you can shrink the gap by normalizing for various factors, but you can’t make it go away. Discrimination continues to be a real, measurable thing. That’s more-or-less the conclusion ThinkProgress comes to also. It’s also not clear that you should normalize for everything you can possible normalize. Yes, women congregate in poorer-paying professions and interrupt their career paths to have children. But some of that is just discrimination of a different sort: “Women’s work” pays less (at least in part) because it has traditionally been women’s work, not because it’s inherently less valuable. And we could set up the economy in such a way that interrupted career paths wouldn’t be punished as much as they are, but we don’t.

The Republican position on this is that of course they are for equal pay for women, they’re just against any effort to help bring that about. Bill O’Reilly laid out the overall strategy

I strong believe in fighting for equality and I also believe that institutional bias should be against the law. What I oppose is government trying to impose equality.

To which Stephen Colbert responded:

I agree with every single word you’re saying, even if those words don’t agree with each other. You see, I also believe that institutional bias should be against the law. And, at the same time, that government shouldn’t do anything about it.

and taxes are due tomorrow

Ezra Klein explains how the IRS could just send you a bill (which you could ignore and send them a 1040 instead if you wanted). For most people, it would be easier and cheaper than keeping records and sending the IRS a bunch of information it already has. But tax-preparation companies would lose out, and they have lobbyists. So it’s not going to happen.

and you also might be interested in …

How I spent my week off: I talked about “Acceptance and Action” at the Unitarian Church of Quincy, Illinois.


The Heartbleed bug really does seem to be worth paying attention to. Change your online passwords; it doesn’t hurt anything.

Here’s my best advice for picking easy-to-remember hard-to-guess passwords: Think of some line or quote or song lyric that you’ll never forget, and turn it into an acronym. Example: “In the beginning God created the Heavens and the Earth” produces the password ItbGctH&tE. In your own mind, call it “the Genesis password” and if you put it on a list somewhere, just write down “Gen”. (Needless to say, I’m never using that one.)


If you don’t follow the conservative media, you miss all the exciting inside-the-bubble stories that the regular media doesn’t cover … because they’re not true. Example: Attorney General Eric Holder isn’t pushing for gun owners to wear tracking bracelets. Imagine that you hear four or five similarly outrageous stories each week, and that the oh-never-mind retractions don’t always reach you. Think what that would do to your worldview.


One of the reasons I’m not willing to give conservatives credit for being principled is that their principles have an odd way of evaporating whenever other conservative priorities are in the picture. Digby points out how conservative defenses of states rights somehow exclude a state’s right to legalize marijuana.

and let’s close with a visual pun

This is What Judicial Activism Looks Like

When John Roberts was being confirmed as Chief Justice in 2005, he likened his role to an umpire in a baseball game:

Judges are like umpires. Umpires don’t make the rules; they apply them. … I will remember that it’s my job to call balls and strikes and not to pitch or bat.

This was his way of invoking a common conservative trope: that “activist liberal judges” had “legislated from the bench” to create laws that were impervious to repeal through the political process. Roberts was pledging to be a different kind of judge, one who applied the law to the facts the way an umpire applies the rulebook’s definition of the strike zone to the pitch he just saw.

The umpire analogy was always suspect. As Justice David Souter pointed out in his 2010 Harvard commencement speech, cases that can be resolved just by reading the text and applying the facts usually don’t make it to the Supreme Court.

Even a moment’s thought is enough to show why it is so unrealistic. The Constitution has a good share of deliberately open-ended guarantees, like rights to due process of law, equal protection of the law, and freedom from unreasonable searches. These provisions cannot be applied like the requirement for 30-year-old senators; they call for more elaborate reasoning to show why very general language applies in some specific cases but not in others, and over time the various examples turn into rules that the Constitution does not mention.

Constitutional values, Souter recognized, often “exist in tension with each other, not in harmony.” Resolving those conflicts in a way that stays as true as possible to the spirit behind the Constitution as a whole … that requires a judge, not an umpire.

Souter was in many ways the model of what conservatives didn’t want to see in George W. Bush’s judicial appointments: Appointed by Bush’s father, Souter had drifted into the Court’s liberal wing, the wing that conservatives accused of making up laws. Roberts was promising not to do that. He would stay objective, rather than drifting into liberal activism.

When the Court’s McCutcheon v Federal Election Commission decision came out earlier this month, we saw just how ironically things have worked out. The decision, written by Roberts and building on the Roberts Court’s earlier decisions in Citizens United and McComish, is one more step in his completely original remaking (or rather, unmaking) of campaign finance law. John Roberts has become arguably the most activist Chief Justice in U.S. history.

When you read McCutcheon, the most striking thing is the way that Roberts is talking to himself. The precedents quoted are almost entirely those of the Roberts Court itself, many written by Chief Justice Roberts.

Moreover, the only type of corruption that Congress may target is quid pro quo corruption. Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner “influence over or access to” elected officials or political parties. Citizens United v. Federal Election Comm’n, 558 U. S. 310, 359. The line between quid pro quo corruption and general influence must be respected in order to safeguard basic First Amendment rights, and the Court must “err on the side of protecting political speech rather than suppressing it.” Federal Election Comm’n v. Wisconsin Right to Life, 551 U. S. 449, 457 (opinion of ROBERTS, C.J.). Pp. 18–21.

That bright line between quid pro quo corruption (direct bribery, where a campaign contribution is exchanged for a vote or other favor) and the more general buying of influence — and the idea that the Constitution limits Congress to legislate only on the quid pro quo side of that line — is a pure invention of John Roberts. It did not exist anywhere in law or legal tradition before he joined the Supreme Court.

Roberts also cites an older decision, Buckley v Valeo from 1976, but slides over the fact that he is reversing that decision. Buckley was the Court’s response to the post-Watergate rewriting of campaign finance laws. It upheld the part of the law that restricted campaign contributions, but threw out the law’s limits on campaign expenditures. The Court reached this conclusion via an interesting piece of reasoning that Roberts has completely written over: When a candidate spends money on his campaign, he is exercising his freedom of speech, and the government needs a very serious reason to stop him. But when a contributor gives money to a campaign, he is not himself speaking; contributors are exercising their right to free association, which is also a First Amendment right, but one that is not quite so sensitive as the freedom of speech.

In other words, in 1976 money was not speech.

The 1976 Court upheld the exact kind of restriction that McCutcheon throws out: an overall restriction on the amount of money an individual can give to federal campaigns during a two-year election cycle. So McCutcheon is a reversal, though you will struggle hard to find that fact acknowledged in the text. In Supreme Court tradition, reversals are not done lightly. A major reversal like Brown v Board of Education is a historical landmark, and typically happens only as a last resort. (See David Strauss’ book The Living Constitution for an account of all the ways the Court had tried for decades to make sense of “separate but equal” before recognizing in Brown that it just wasn’t going to work.)

If there is one cardinal symptom of judicial activism, reversal-on-a-whim is it. But Roberts does not struggle at all with reversing Buckley, he simply ignores that he’s doing it. And it’s not just Buckley. In Justice Breyer’s dissenting opinion, he quotes McConnell v FEC, the last major pre-Roberts campaign finance case, which upheld restrictions on soft money contributions:

Plaintiffs argue that without concrete evidence of an instance in which a federal officeholder has actually switched a vote [in exchange for soft money] . . . , Congress has not shown that there exists real or apparent corruption. . . . [P]laintiffs conceive of corruption too narrowly. Our cases have firmly estab­lished that Congress’ legitimate interest extends be­yond preventing simple cash-for-votes corruption to curbing ‘undue influence on an officeholder’s judg­ment, and the appearance of such influence.’

But as Breyer complains, Roberts now quotes Citizens United as if it had reversed McConnell.

Did the Court in Citizens United intend to overrule McConnell? I doubt it, for if it did, the Court or certainly the dissent would have said something about it.

Another major symptom of judicial activism is a judge valuing his own view of reality above that of the legislature. Judges are presumed to be experts in the law. But often a case hangs on not on the law alone, but on facts about the world. Congress can hold months of hearings and require reports from the full apparatus of government, and so is in general better situated to investigate the state of the world than a court is. Within the court system, a district court can spend weeks or months assembling a body of expert testimony, and so higher courts typically defer to a lower court’s findings of fact. In our entire system, no one is more poorly positioned to assess the state of the external world than the Supreme Court.

Non-activist judges realize that.

Lots of reality-based issues enter into campaign finance law: How does corruption really work? How corrupting are various kinds of contributions? How diligently will contributors and political parties look for loopholes in the law? What kinds of legal restrictions are practically enforceable, and which ones require the government to prove intentions that no one can really know? How does the appearance of corruption influence the behavior of voters and the overall health of democracy?

The Bipartisan Campaign Reform Act (BCRA) of 2002 was passed after Congress had assembled massive amounts of testimony and evidence. Moreover, congressmen themselves have direct experience with the temptations towards corruption, and significant interactions with the voters. When McCutcheon came before a district court, that court upheld the law in view of the Buckley precedent, before getting to the evidence-gathering part of the trial. Breyer summarizes:

The District Court in this case, holding that Buckley foreclosed McCutcheon’s constitutional challenge to the aggregate limits, granted the Government’s motion to dismiss the complaint prior to a full evidentiary hearing. … If the plu­rality now believes the District Court was wrong, then why does it not return the case for the further evidentiary development which has not yet taken place?

Why indeed? Is it that Chief Justice Roberts is afraid the facts would get in the way of what he wants to do? Or is he convinced that he already knows everything he needs to know?

Here’s the kind of thing I wish Justice Roberts knew: Last week I was in my home town, where I had dinner with my best friend from grade school. We have argued politics since we were seven, and he is quite conservative today. But we found one issue where we completely agree: No bank should be too big to fail. We agreed that Congress has done practically nothing to fix the financial system after the meltdown of 2008, and neither of us was optimistic that it would.

Why not? Not because the People want banks to be too big to fail. Between the two of us, I believe we represent a fairly broad public consensus on the issue. And not because bankers are delivering sacks of cash to congressmen in quid pro quo exchange for their votes. But the broader influence of big money in politics — the kind that Justice Roberts has placed beyond legal remedy — makes the too-big-to-fail issue unapproachable. Neither I nor my friend is actively pushing for Wall Street reform because … well, what’s the point?

That’s corruption of the political process undermining democracy. And Chief Justice Roberts has decreed that nothing can be done about it.

Who Should Be Beyond the Pale?

Maybe you heard about Brendan Eich, who briefly was CEO of Mozilla. The media’s one-line summary of his story is that Eich was hounded out of his job because he opposes marriage equality for gays and lesbians. The somewhat longer version goes like this:

  • Mozilla (says Wikipedia) “is a free software community best known for producing the Firefox web browser.” (I’ve used Firefox off and on for years, and it has been my main browser for the past few months.)
  • Brendan Eich became CEO of Mozilla on March 24. He was a co-founder of Mozilla and had been Chief Technology Officer previously. The Mozilla blog said Eich “has been deeply involved in every aspect of Mozilla’s development starting from the original idea in 1998.” Back 1998, Marc Andreessen wrote about “Brendan Eich, who single-handedly designed and implemented the scripting language known as JavaScript”.
  • The same day, the small app-development company Rarebit, founded by a married gay couple (one of whom is British and could only get permanent residency in the U.S. after marriage), blogged “It’s personal for us” and announced it would protest by removing its apps from the Firefox Marketplace.
  • On March 28 The Wall Street Journal reported that three Mozilla board members were resigning. The stated issue was not Prop 8, but that Mozilla had picked an insider rather than “a CEO from outside Mozilla with experience in the mobile industry who could help expand the organization’s Firefox OS mobile-operating system and balance the skills of co-founders Eich and [Mitchell] Baker”. The article also noted that “Some employees of the organization are calling for Eich to step down because he donated $1,000 to the campaign in support of Proposition 8, a 2008 California ballot measure that banned same-sex marriage in the state.” The Mozilla blog claims the protests came from “less than 10 of Mozilla’s employee pool of 1,000. None of the employees in question were in Brendan’s reporting chain or knew Brendan personally.”
  • Eich did in fact give the $1000 back in 2008. The public-record listing includes Mozilla as his employer, but that’s just part of the form. Mozilla did not make the contribution, authorize it, or endorse it.
  • Negative buzz developed on Twitter and other social media. By March 31, the online dating site OkCupid was greeting Firefox users with a statement that included “Mozilla’s new CEO, Brendan Eich, is an opponent of equal rights for gay couples. We would therefore prefer that our users not use Mozilla software to access OkCupid.” The statement ended with links for downloading other browsers. (If you insisted on continuing with Firefox, though, you got through.) The OkCupid move seems to have been the trigger to turn a techie Silicon Valley controversy into a mainstream story. (I have to wonder whether OkCupid’s motive was political, or if they realized what a great publicity stunt this would turn out to be. I know I’d never heard of them before, but now I have.)
  • On April 3, Eich resigned. Mozilla insists that he was not fired or asked to resign. The next day, Mozilla insider Mark Surman blogged, “Brendan didn’t need to change his mind on Proposition 8 to get out of the crisis of the past week. He simply needed to project and communicate empathy. His failure to do so proved to be his fatal flaw as CEO.” Rarebit blogged, “I guess this counts as some kind of ‘victory,’ but it doesn’t feel like it. We never expected this to get as big as it has …”

So a better summary is more like: The personal politics of an already controversial choice for Mozilla CEO drew bad publicity to the organization, so he and Mozilla amicably parted ways. It’s still not what I would call a heartwarming story, but let’s at least be accurate.

Backlash. However it really played out, the Eich Affair has turned into an opportunity for right-wingers to denounce “leftist fascists“. Kevin Williamson at National Review wrote “Welcome to the Liberal Gulag.” Over at the web site of the conservative religion-in-public-life journal First Things, Robert George predicted:

Now that the bullies have Eich’s head as a trophy on their wall, they will put the heat on every other corporation and major employer. They will pressure them to refuse employment to those who decline to conform their views to the new orthodoxy

A number of pro-marriage-equality writers used this incident to establish their centrist credentials and distance themselves from what the Brits used to call “the Loony Left“. Andrew Sullivan wrote: “The whole episode disgusts me.” Slate‘s William Saletan denounced “the new Moral Majority” and compared Eich to people who have been fired for being gay. The Atlantic‘s Conor Friedersdorf wrote two articles on the topic, arguing first that pressuring Eich to resign was a violation of liberal values, and then discussing more abstractly the question I raise in the title: When is a point of view so objectionable that good people should stigmatize it and refuse to deal with its proponents in any way? Who should be beyond the pale?

The Wide Pale. Personally, I believe in what you might call a wide pale. Ostracism and boycott have their place, but I prefer to hold them as a last resort. So I continued to use Firefox all through the Eich Affair. My pale’s limits got tested a month or two ago, when a well-known white supremacist posted comments to “The Distress of the Privileged“. Should I just delete them on principle? I decided to wait and see. He posted a few slogans, didn’t insult the other commenters, and didn’t create any disturbance requiring my intervention. The comments are still up.

The wide-pale issue is particularly important when a once-fringe movement becomes mainstream, as gay rights is beginning to. Patterns established when the movement was small and powerless need to get re-evaluated and often are not. For example, the generation of Zionists whose worldview was forged in the Holocaust had trouble taking seriously the idea that Jews could be oppressors. Or, going further back in time, the Puritans who escaped persecution in England couldn’t wrap their minds around the reality that they had become the persecuting establishment in the Massachusetts Bay Colony.

It’s over the top to say that gay rights has gotten to that point already, especially at a time when the right to marry exists in only about half the country, and states are passing laws to legitimize discrimination against gays in the marketplace. But the trends are there. Reading between the lines in the Rarebit blog (“We never expected this to get as big as it has”), I don’t think they ever envisioned themselves as the powerful side of the conflict. A constructive use of the Eich Affair would be to think these issues through.

Morality, not law. The first thing to realize about the Eich Affair is that there’s no legal issue. This isn’t about the First Amendment, because the government isn’t punishing Eich for his views. As in the Duck Dynasty flap in December, everybody involved is exercising freedom under the law: Eich freely contributed to a political campaign, his critics on Twitter and at OkCupid freely stated their objections, consumers freely decided to use or not use the Firefox browser, and Mozilla and Eich came to a free agreement that he should leave.

Of course, many of the abuses during the McCarthy Red Scare of the 1950s were expressions of freedom too. You were free to plead the Fifth Amendment when the Committee asked if you’d ever been a Communist, and all your friends and employers and associates were free to shun you afterwards.

The question is: As a culture, is this how we want to behave? Do we want to evaluate the politics of everyone we deal with, or would society be a more pleasant place if we all made a bigger effort to tolerate people we disagree with? This issue comes up every now and then on the Sift, most clearly during the Chick-fil-A boycott in 2012. In a piece I called “Is That Sandwich Political?“, I confessed to a certain can’t-I-just-eat-lunch annoyance and concluded:

[I]n general, I’m against balkanizing the economy into liberal and conservative sectors. If you really like Chick-fil-A’s food, I don’t think you should let anybody guilt you out of it … But if [Chick-fil-A CEO Dan] Cathy has left a taste in your mouth that a super-sized Coke won’t wash away, don’t let anybody guilt you about that either.

Start here: You feel what you feel. Large chunks of the economy are about giving you pleasure or making you feel good in some way. Sometimes, knowing the backstory of a product or a person ruins that good feeling and consequently ruins the product. This isn’t a rational process and you shouldn’t pretend that it is.

For example: Woody Allen movies. They’re supposed to make you laugh, but if you can’t stop wondering whether or not he sexually abused his adopted daughter, you’re not going to laugh very much. So don’t go. But it’s important to realize that this cuts both ways. Watching Ellen DeGeneres’ show is supposed to be fun. But if knowing that she’s lesbian disgusts you, you’re not going to have much fun. So don’t watch.

Part of the charm of Firefox is that you feel virtuous for using it, because you’re not helping Microsoft/Google/Apple take over the world. (For similar reasons, all the book links on the Sift go to a co-op bookstore rather than Amazon.) But if knowing that Eich was CEO messed up that good feeling for you, it made Firefox less valuable.

That’s why I have a hard time finding fault with Rarebit. As they said, it was personal for them. They were a gay couple spitting into the wind against the larger forces that had tried to keep them apart and made it hard for them to start their company. That’s a little more than just “I don’t like that guy’s politics.”

Given that you feel what you feel, though, the next question is whether you should try to get over those feelings, or instead fan them and try to engender them in others. Do you just privately decide “I’ve eaten enough Chick-fil-A in my life” or do you make a crusade out of it and try to convert others? These are the kinds of questions that become more and more important as your movement gains power and starts to have more responsibility.

The usefulness of purity standards. One point of a boycott is to bring a distant issue into everyday life. The Gallo boycott of the 1970s is a good example. The treatment of farm workers in California was easy to ignore if you were planning a fraternity party at Yale. But if some of the people you invited were boycotting Gallo wine, you had to think about it. Similarly today, eating local or organic or vegan might be a health option, but it’s also creates openings to evangelize against the factory farm system or its treatment of animals.

Having purity standards about what you use — refusing to ignore the moral backstory — can be an important way to balance the nihilism of the marketplace. Blood diamonds, slave labor, dolphin-safe tuna … the market tends to hide the moral implications of our consumption, and refusing to play along is sometimes appropriate. Also, in an era where one of the two major parties opposes regulations on principle, taking action in the marketplace may be the only way you can influence corporate behavior.

So there’s a balancing act to be done: I don’t want a fully politicized marketplace where I have to quiz the baker before eating her muffins. But I also don’t want to advocate a wall of separation between politics and the market.

Rules of thumb. I don’t think there’s a clear line between what should be politicized and what shouldn’t. But these are some rules of thumb I’m using.

  • Corporations are better targets than people. My main objection to campaign against Eich was that it had nothing to do with corporate policy. No one was arguing that Mozilla was being run in a homophobic way. By contrast, Chick-fil-A contributed corporate funds to anti-gay campaigns. So if you bought their food, you were subsidizing those contributions. (More recently, they’ve been downplaying that.) More importantly, corporations are amoral institutions, so you can’t really dialog with one. Hitting it in the bottom line may be the only way to get its attention.
  • If people are targeted, did they make themselves targets or were they ferreted out? This is why I find Eich a more sympathetic figure than Duck Dynasty‘s Phil Robertson. Robertson said a bunch of ignorant, bigoted stuff to a magazine reporter. Again, that’s his right as an American. But it also means that if you’re helping make him a celebrity, you’re helping him promote those views. It’s totally legit to decide you don’t want to do that any more. Eich, on the other hand, gave $1,000 to support Prop 8, which is something any prosperous guy with his views could do. There was no sign he intended to use his position with Mozilla as a platform to campaign against marriage equality.
  • Have attempts at dialog failed? People don’t always realize the full implications of their actions, and can change their minds.
  • Is some drastic action pending that requires you to do something? During the Wisconsin union-busting conflict in 2011, I took heat from a reader for endorsing the boycott of companies supporting Scott Walker. (I sold my stock in Johnson Controls.) I felt that Wisconsin was the beginning of a nation-wide effort to destroy public-employee unions, and a major blow against the existence of all unions. Drastic action was being taken on one side, and similarly drastic action was needed on the other. Prop 8, on the other hand, was settled by the Supreme Court last summer, and all the momentum on the issue belongs to the pro-equality side.
  • Is the view you’re objecting to so reprehensible that you can’t imagine a good person holding it? In some theoretical sense I can imagine a good person being a Neo-Confederate who defends slavery, but my mind revolts when I try to flesh out that vision. Or if you tattoo swastikas on your biceps, sorry, but you’ve lost all my sympathy. On the other hand, I can disagree strongly about abortion and gay rights without demonizing my opponents. (Up to a point. If you want to implement the Biblical injunction to have gays stoned, I can’t see you as a good person.)

If you can think of other rules of thumb for these situations, leave a comment.

The Monday Morning Teaser

The Sift is back. During the last two weeks I kept running into people depressed by the Supreme Court’s McCutcheon decision, which blew up another chunk of the campaign finance laws. When I read the decision, and pieces of the Buckley decision from 1976 that it is supposedly based on (but actually reverses), what struck me is that this is exactly what conservatives had always (unfairly, I believe) accused liberal justices of doing: judicial activism, ruling the way you want regardless of the law and the history of its interpretation. So one of this week’s featured articles is “This Is What Judicial Activism Looks Like”.

The other featured article looks at Brendan Eich’s resignation-under-fire from Mozilla, and the media criticism of the “liberal fascists” or “gay mafia” who drove him out. I find this kind of talk overblown, but it does raise the question: when should we refuse to deal with someone because of his political views? I’ll talk about that in “Who Is Beyond the Pale?”

A lot of stuff has been happening these last two weeks, which I’ll link to in the weekly summary: ObamaCare exceeded its sign-up projections, allowing Kathleen Sebelius to ride into the sunset. The Ukraine and Russia keep doing a war dance. Equal Pay Day drew attention to the continuing gap between male and female earnings. The House passed yet another version of the Ryan budget, cutting programs for the poor in order to give tax cuts to rich people. The Heartbleed bug was revealed. And CBS announced that Stephen Colbert will replace David Letterman when Letterman retires.

I’m battling a cold today, so it’s not clear how many breaks I’ll have to take. The Eich article is more-or-less done and should appear shortly. No predictions about the Supreme Court article or the weekly summary.

Fiendishly Rational

No Sift next week. The next new articles will appear April 13.

The record of thousands upon thousands of people arrested in this way is everywhere in the South. In the fall, when it was time to pick cotton, huge numbers of black people are arrested in all of the cotton-growing counties. There are surges in arrests in counties in Alabama in the days before, coincidentally, a labor agent from the coal mines in Birmingham is coming to town that day to pick up whichever county convicts are there. 

– Douglas Blackmon,
Slavery By Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II

And this system is one that I think in many ways needs to be understood as brutal in a social sense, but fiendishly rational in an economic sense. Because where else could one take a black worker and work them literally to death, after slavery? And when that worker died, one simply had to go and get another convict.

– Prof. Adam Green,  University of Chicago
quoted in Slavery By Another Name

This week’s featured articles are “Slavery Lasted Until Pearl Harbor” and “Not Primarily Students, Not Really Amateurs“.

This week lots of people were talking about the Supreme Court

The Court began hearing arguments in Hobby Lobby case testing the ObamaCare contraception mandate. Slate’s Dahlia Lithwick is pessimistic:

The rights of millions of women to preventive health care and workplace equality elicit almost no sign of sympathy or solicitude from the right wing of the bench today. Nor does the possibility that religious conscience objections may soon swallow up the civil rights laws protecting gay workers, women, and other minorities. Religious freedom trumps because we’re “only” talking about birth control.

In general, it’s a mistake to read too much into the questions the justices ask. When the constitutionality of the individual mandate was argued before the Court, I don’t remember anyone predicting that Chief Justice Roberts would save it.

and the ObamaCare deadline

Sort of. It was supposed to be today, but if you were in the process of applying and got hung up by the technical problems on the web site, you get to finish.

Administration officials … compare it to the Election Day practice of allowing people to vote if they are in line when the polls close.

According to the L.A. Times, 9.5 million previously uninsured Americans now have coverage: some directly through the ObamaCare marketplaces, some directly from insurance companies, some through the expansion of Medicaid, and some because the law allows more young people to stay on their parents insurance plans.

A series of ObamaCare horror stories have gotten national attention, mostly to be debunked later. But it’s about time that people start paying attention to the success stories.

It’s also time to make state-level Republicans pay the price for not expanding Medicaid. In an article on the Health Affairs blog, three public-health professors and a medical student run the numbers:

We estimate the number of deaths attributable to the lack of Medicaid expansion in opt-out states at between 7,115 and 17,104.  Medicaid expansion in opt-out states would have resulted in 712,037 fewer persons screening positive for depression and 240,700 fewer individuals suffering catastrophic medical expenditures. Medicaid expansion in these states would have resulted in 422,553 more diabetics receiving medication for their illness, 195,492 more mammograms among women age 50-64 years and 443,677 more pap smears among women age 21-64. Expansion would have resulted in an additional 658,888 women in need of mammograms gaining insurance, as well as 3.1 million women who should receive regular pap smears.

and the Christie administration’s report on the bridge scandal

which came to the unsurprising conclusion that Governor Christie did nothing wrong. “Our findings today are a vindication of Gov. Christie,” said the report‘s author, Randy Maestro.

In response, all of Chris Christie’s critics said, “I’m glad that’s settled, let’s move on.”

No, seriously, Christie’s critics were appalled that he spent taxpayer money to produce such a self-serving report, and the word “whitewash” keeps cropping up. Hoboken Mayor Dawn Zimmer, who claims the administration withheld federal relief money from Hoboken after Hurricane Sandy to pressure her to approve a deal favoring Christie’s private-sector allies, said:

Randy Mastro could have written his report the day he was hired and saved the taxpayers the million dollars in fees he billed in generating this one-sided whitewash.

And the New York Times editorial page was equally unkind:

We can now add this expensive whitewash to the other evidence of trouble in Mr. Christie’s administration. If Mr. Christie really wants to win back public trust, he and his political allies can start by paying for this internal inquiry out of their own pockets. Then the governor and these lawyers can make all emails and any other crucial information available to federal and state investigators.

Investigations by the New Jersey legislature and the U.S. attorney will continue.

and (for some reason) a raft of sports-and-labor stories

beginning with the ruling that Northwestern’s football players are employees who can unionize. I cover this in “Not Primarily Students, Not Really Amateurs

and you also might be interested in …

A federal appeals court in Texas found the state’s new regulations on abortion clinics constitutional, in spite of the fact that they have caused a third of the state’s abortion clinics to close and have little medical evidence supporting their value. The court found that living three hours away from the nearest clinic was not an undue burden on a woman’s right to have access to abortion services.

A similar law in Wisconsin has been found unconstitutional by that district’s appeals court. Since a law can’t be constitutional in one part of the country and unconstitutional in another, the Supreme Court will have to  resolve the difference.

Lately I’ve been on a reading jag centering on the Confederacy and the Reconstruction Era. (You’ll be hearing about it. Today’s book review is just the start.) I can’t help noticing the similarities between the current campaign against abortion rights and the South’s post-Reconstruction campaign against the rights former slaves were granted by the 13th, 14th, and 15th Amendments. In both cases, the strategy was to leave the rights on the books, but make them impossible to claim. The post-Reconstruction Supreme Court winked at that. We’ll see what this era’s Court does.


Sinister.

Once you convince yourself that sexuality is a choice, all sorts of otherwise innocent things start to look like advertising for the gay “option”. AlterNet’s Katie Halper collects the “10 Weirdest Things the Christian Right Thinks Will Turn Your Kids Gay“.

One that deserves special attention is a 4000-word screed on the “Well-Behaved Mormon Woman” blog, which decodes the gay message encrypted in the Disney movie Frozen, and particularly in its hit song “Let It Go”. (The movie clip isn’t YouTubed, but a great cover is here.)

I haven’t seen the movie, but in WBMW’s retelling the plot centers on a princess whose parents insist her socially-unacceptable magic power be hidden, and how she finds liberation. What could a hidden power symbolize, other than lesbianism?

Actually, it might symbolize sexual desire in general, as dancing does in Footloose. Or maybe creativity, like the color in Pleasantville. Or the symbolism might vary from one viewer to the next. Maybe you were a reader in an anti-intellectual family, a rationalist in a religious family, or even a religious seeker in a rationalist family. (In this season of The Americans, it’s been fun watching the KGB-mole parents freak out as their daughter explores Christianity.) If you made it out the other side of adolescence, probably at some point you wondered whether the world could accept what you were finding inside yourself.

For Harry Chapin, the magic power of music might be locked inside an ordinary taxi driver:

Oh, I’ve got something inside me
To drive a princess blind.
There’s a wild man wizard,
He’s hiding in me, illuminating my mind.
Oh, I’ve got something inside me,
Not what my life’s about.
‘Cause I’ve been letting my outside tide me
Over ’til my time, runs out.

But to WBMW, a hidden magic power must be homosexuality. Personally, I agree with the analysis in Tom Lehrer’s “Smut“: “filth … is in the mind of the beholder”.

When correctly viewed,
Everything is lewd.
I could tell you things about Peter Pan,
And the Wizard of Oz — there’s a dirty old man.

Defending the gay agenda since 1963.

One of her commenters wonders what WBMW will make of The Lego Movie, which I have seen. It really is propaganda in favor of a society that can reconfigure itself rather than be Krazy-glued into a single “ideal” arrangement. But then, if you squint really hard, Legos themselves are propaganda for that.

And I hope WBMW never takes a hard look at the mythology underlying the X-Men. You see, sometime in adolescence, previously normal kids discover that they’re “mutants” with special powers. Society is afraid of them and wants to kill them just for being what they are. So they stay hidden and band together secretly with other mutants.

How gay is that?


Whenever I’m tempted to complain about NYT conservative columnist Ross Douthat, I recall that he replaced Bill Kristol and count my blessings. Douthat’s columns often imply some outright falsehood or rely on an outrageous leap of logic, but do seem to represent an intelligent person trying to make sense of the world.

For example, Sunday’s “The Christian Penumbra” – his two cents on “religious freedom”. He makes a point that I first heard in Robert Putnam’s American Grace: The benefits of religion come not from belief or even faith, but from practice and community. He goes on to blame the dysfunctionality of the Bible belt (high divorce rates, high teen pregnancy, high sexually transmitted diseases) on non-practicing believers. And then he completely loses me by arriving at some conclusion about Hobby-Lobby-style religious freedom.

Oh well, it’s better that whatever Bill Kristol would have written.


ThinkProgress argues with the people who think Neil deGrasse Tyson’s Cosmos series is ignoring creationism. He’s not saying the word, but the things he’s choosing to talk about are strongly influenced by the claims of creationists. I think this what Joseph Campbell meant by his term “invisible counterplayer”.

and let’s end with something amazing

If you’ve got the will to rock, it doesn’t matter that you only have two cellos and it’s the 18th century.

Slavery Lasted Until Pearl Harbor

One of the trick questions American History teachers ask their classes is: “When did slavery end?”

The answer that is both obvious and wrong is: with President Lincoln’s Emancipation Proclamation, which you might count either as 1862 (when it was announced) or 1863 (when it went into effect).

It’s a trick question because the Emancipation Proclamation by itself freed almost nobody. It only applied to the Confederate states (not the slave-holding border states that stayed in the Union), and those were precisely the places where no one was paying attention to President Lincoln’s proclamations. Those states had their own president, and he thought slavery was just fine.

The answer the teacher is probably looking for is: with the 13th Amendment, which (as the Lincoln movie dramatized) passed Congress in early 1865. The amendment is short and gets right to the point:

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

It became part of the Constitution that December, when newly reconstructed Georgia became the 27th state to ratify it.

But in his 2008 Pulitzer-Prize-winning book Slavery by Another Name, (which in 2012 PBS made into a documentary that you can watch free online) Wall Street Journal reporter Douglas Blackmon came a different conclusion:

Certainly, the great record of forced labor across the South demands that any consideration of the progress of civil rights remedy in the United States must acknowledge that slavery, real slavery, didn’t end until 1945 — well into the childhoods of the black Americans who are only now reaching retirement age.

The loophole. The reason slavery was able to last so long is that the 13th Amendment has a loophole. (Did you notice it? It went right past me.) The loophole is “except except as a punishment for crime whereof the party shall have been duly convicted”. So if you can rig the local laws and get the cooperation of the local law enforcement and court system, you can convict people of “crimes” pretty much whenever you want. Then they can be sentenced to hard labor, and the  state or county can auction them off to the highest bidder until their sentence (or their useful working life) is up.

That’s what happened across the South when whites regained control of state governments after Reconstruction. Vaguely worded laws created crimes like “vagrancy”, enforced almost exclusively against blacks. For other crimes like petty larceny or disorderly conduct, the say-so of a law-enforcement officer or a white “victim” was sufficient to convict, particularly after blacks were disenfranchised and banned from juries. For minor crimes, justices of the peace were empowered to assess fines without a jury, and when inflated court costs were added to a misdemeanor fine, the total was often far beyond any amount that a black worker could raise. He could then be sentenced to forced labor until the state or county recouped the debt through the “rent” paid by an employer. In this way, even a minor offense could result in months or even years of forced labor without pay, under whatever conditions the employer chose.

Instead of true thieves and thugs drawn into the system over decades, the records demonstrate the capture and imprisonment of thousands of random indigent citizens, almost always under the thinnest chimera of probable cause or judicial process. The total number of workers caught in this net had to have totaled more than a hundred thousand and perhaps more than twice that figure.

In the PBS documentary, Blackmon says the convict market was driven by demand, not supply:

In the fall, when it was time to pick cotton, huge numbers of black people are arrested in all of the cotton-growing counties. There are surges in arrests in counties in Alabama in the days before, coincidentally, a labor agent from the coal mines in Birmingham is coming to town that day to pick up whichever county convicts are there.

Industrial slavery. One of the arguments made by apologists for slavery — it goes back at least to John Calhoun’s 1837 speech to the Senate, “Slavery a Positive Good“, and you can still hear it occasionally today — is that the black slaves on Southern plantations were in fact treated better than the immigrant industrial workers of the North, whose bosses did not live side-by-side with them or care about them in the personal way that, say, Scarlett O’Hara cared about Mammy.

Reading Blackmon’s book, in which slaves are used in the mines and furnaces of Birmingham’s growing steel industry, you see that (to the extent that there is anything to it at all) this observation tells you more about the difference between agrarian and industrial society than about slavery. When you compare apples to apples, the evil of slavery is undiminished: Hired field hands in the North were treated better than plantation slaves in the South, and industrial slaves in the South were treated worse than free industrial workers in the North.

That was true even under the Confederacy, but post-Reconstruction industrial slavery was far worse: The slave was rented rather than owned, and so was treated as renters typically treat property. As historian Adam Green says in the PBS documentary: a leased convict could be “worked literally to death. … when [one] worker died, one simply had to go and get another convict.”

Green Cottenham. To give his story a face, Blackmon focuses on Green Cottenham, a Alabaman arrested for vagrancy in 1908 and sentenced to work for a subsidiary of U. S. Steel in the Pratt mines outside of Birmingham.

There he was chained inside a long wooden barrack at night and required to spend nearly every working hour digging and loading coal. His required daily “task” was to remove eight tons of coal from the mine. Cottenham was subject to the whip for failure to dig the requisite amount, at risk of physical torture for disobedience, and vulnerable to the sexual predations of  other miners — many of whom already had passed years or decades in their own chthonian confinement. … Forty-five years after President Abraham Lincoln’s Emancipation Proclamation freeing American slaves, Green Cottenham and more than a thousand other black men toiled under the lash at Slope 12. Imprisoned in what was then the most advanced city of the South, guarded by whipping bosses employed by the most iconic example of the modern corporation emerging in the gilded North, they were slaves in all but name.

Cottenham died of disease before his sentence was up and was buried in an unmarked grave near the mine.

Tip of the iceberg. It’s tempting to compare Blackmon’s 100,000-200,000 estimate to the four million slaves held at the start of the Civil War and see at least some progress. But leased convicts were just the extreme edge of a more general slavery.

Another common practice was for wealthy whites to pay the misdemeanor fines of able-bodied blacks, in exchange for a “contract” pledging to work for a specified period of time. Once “employed”, they were chained and subject to the whip. Often they were kept beyond their contract period, because they had no way to claim their freedom.

One level removed from this were the sharecroppers, who by contract could only sell their crop to their landlord, for whatever price he named. Typically they borrowed from the landlord to buy seed, and never got out of debt. Bankruptcy laws did not apply to them, and running out on a debt was illegal — and could result in being sold to work the mines in Birmingham. Similarly, if you worked as a house servant or in a shop, the name of your white employer was your only defense should the sheriff come looking for “vagrants” he could sell to U.S. Steel.

Freedom was largely an illusion, not just for the leased convicts, but for all blacks.

False dawn. All this was clearly against the federal Civil Rights Act of 1875, but the Supreme Court held in the Civil Rights Cases of 1883 that Congress had no authority to overrule state laws in this way. Effectively, the states could do as they liked, as long as they didn’t call it slavery.

In 1903, President Theodore Roosevelt appointed a U. S. attorney in Alabama who naively decided to enforce federal laws against “peonage” — slavery for debt. A federal judge took his indictments seriously, and a handful of whites were put on trial. But as it became clear that these were not isolated cases, and that truly enforcing the law would disrupt the entire economy of the South, the Justice Department lost its nerve. The attorney was re-assigned, the attorney general got another job, and the main defendant was pardoned without ever spending time in prison.

Pearl Harbor. When the U.S. entered World War II, the Franklin Roosevelt administration realized that the continued existence of involuntary servitude in the South undermined the propaganda war against the Axis. Less than a week after Pearl Harbor, Attorney General Francis Biddle issued a directive to all federal prosecutors instructing them to prosecute cases of “involuntary servitude and slavery”. Finally, the law would be enforced.

It was a strange irony that after seventy-four years of hollow emancipation, the final delivery of African Americans from overt slavery and from the quiet complicity of the federal government in their servitude was precipitated only in response to the horrors perpetrated by an enemy country against its own despised minorities.

Significance today. Taking this story seriously reframes the Civil Rights movement and the entire history of race in America. Those who marched with Martin Luther King were not just the grandchildren of slaves; some had probably been slaves themselves. Likewise, when the Supreme Court demanded the desegregation of schools in 1954 or President Johnson signed the Civil Rights Act of 1965, the South was not a century past slavery, but only a few years.

In my previous posts about race, I have often run into comments about the long history of black crime, or comparisons to the Chinese, many of whom were also brought to America under forced-labor conditions in the 1800s. But that “long history” evaporates if the original post-slavery “crime wave” was actually instigated by whites seeking to re-enslave African Americans.

And no American race or ethnic group faced anything remotely resembling the black experience. Whatever hardships the Chinese or the Irish or any other immigrant group faced, once things turned around, they turned around. Only blacks experienced multiple false dawns, where rights were granted only to be later taken back or ignored. When today’s blacks look skeptically at authority or seem paranoid about the hidden intentions of whites, they are not reacting to the slavery experiences of great-great-grandparents they never met, but possibly of the parents who raised them.

In short: Slavery is a much fresher wound than most of us have been led to believe.

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