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What Your Fox-Watching Uncle Doesn’t Get About Ferguson

It doesn’t matter how many details you know. If you start the story in the wrong place, you won’t understand it.


Part of my regular news-watching cycle is to check in on Fox News from time to time. It keeps me honest and helps me anticipate the kinds of arguments I’m likely to start hearing from conservatives.

Watching Fox was particularly interesting in the early part of this week, because in the evenings they (like MSNBC and CNN) gave a lot of air time to their reporters on the streets in Ferguson, Missouri. So it was a rare opportunity to see all three cable news networks cover the same controversial events at the same time. Most days, the difference between the networks lies mainly in what they choose to cover — a new report on climate change might lead the news on MSNBC, while Fox focuses on Benghazi hearings in Congress. But for a few days the what of the news was obvious and inescapable, so Fox’s unique perspective on the world could only express itself in the how.

Some of the difference in coverage has been on the detail level and is easy to filter out if you’re aware of the various networks’ points of view. When police would start moving in on demonstrators, for example, Fox would report as fact whatever they were hearing from police — that, say, shots had been fired from the crowd — while MSNBC would stick closer to what they could see (police moving in), express ignorance as to why it was happening, and then later report what police were saying (shots were fired from the crowd) as a claim they couldn’t verify. Whether you were pro-demonstrator or pro-police, you could watch either network and make a good guess about what the other was reporting.

But there has been a much more subtle, harder-to-compensate-for difference in the way each network answers the fundamental question: What are the demonstrations in Ferguson all about?

On Fox, the answer to that question is very simple. Demonstrators in Ferguson are reacting angrily to a single, one-of-a-kind event: White police officer Darren Wilson shot and killed an unarmed black 18-year-old, Michael Brown. That restricted context drives the rest of their narrative.

The apparent mystery. Like any good narrative hook, Fox’s omission of context creates a mystery: Why do so many people in Ferguson care so much about that particular event? Of course, Michael Brown’s family would be upset, and even Fox’s audience can cut them some slack if they want Officer Wilson nailed to the wall. But what about all those other people on the street night after night? It’s safe to say that most of them never even met Michael Brown. Why were they giving up their evenings and risking arrest or worse?

Once you have that question in your head, several answers suggest themselves: Maybe they’re all just crazy. Fox’s resident psychologist, Dr. Keith Ablow, says “the psyche of the community” deserves as much investigation as the actions of police.

Or maybe most of the protesters really don’t care about Brown, and the demonstrations are just an exciting thing to do in a boring town. At night on the streets, you’re where it’s all happening. You might even get on national TV. That’s the interpretation Fox correspondent Steve Harrigan was promoting when he described the demonstrations late Monday night as a “media event” and “child’s play”. (In response, he got cussed out on camera by one of the black “children” he was demeaning: “We go through this shit every day,” the young man reported. Harrigan did not follow up on that observation.)

An even more sinister solution to the mystery evokes racial stereotypes that Fox doesn’t need to spell out. A hint is enough: Maybe these young black men are just wired for anarchy and violence. The Brown shooting was nothing more than an excuse for doing what they’d do all the time if police weren’t stopping them. And once you raise the stereotype of the lawless black savage, the incidents of looting take on a significance far beyond their number or the number of people responsible: This isn’t about Brown or the police at all, it’s about grabbing some free liquor or a new pair of Air Jordans.

In addition, the why-do-they-care mystery leads right into a question Fox raises at every opportunity: Why do blacks only go to the streets about white-on-black cases like Brown and Trayvon Martin, when black-on-black violence [see endnote 1] kills far more people? How street demonstrations could prevent black-on-black violence is a question they never address. (Demonstrations speak to governments and the national electorate, and have little effect on criminals or hot-headed youth.) But Fox presents the Brown and Martin demonstrations as pointless anyway, so why shouldn’t there be equally pointless demonstrations against black-on-black violence instead?

Second, restricting your attention to that one context-free event makes the crowd look like a lynch mob. Why are they so sure Officer Wilson wasn’t justified in shooting Brown? Why can’t they wait for the investigative process to play out? And why can’t they cooperate with police now to keep the peace?

And finally, the mystery-framing makes the politics of the situation look purely venal. How outrageous it seems that liberals — they must be liberals — are exploiting the Brown shooting to register Ferguson’s black population to vote!

What makes Fox’s frame so convincing to its audience is that you can feel well-informed inside it. You can know how many people were arrested each night and which stores they looted. You can learn details of the shooting (though anonymous leaks from police will be reported more authoritatively than eye-witness testimony from black citizens). You can learn statistics about black crime in America. You can know just how rare police killings are compared to drug killings or other black-on-black murders. You’re not ignorant; you’re a walking storehouse of the kinds of information MSNBC would never tell you.

But in spite of that well-informed feeling, you don’t understand what’s really going on, because Fox is leaving out key background information and then beginning the story in the wrong place. The right story begins not with Officer Wilson’s bullets, or even with Michael Brown in the convenience store, but with a community where lesser forms of police abuse are an everyday occurrence.

Start by asking. Slate‘s Jamelle Bouie did what Fox reporters (or most individual whites) hardly ever do: ask the black community what they’re concerned about and listen to their answers.

Talk to anyone in Ferguson and you’ll hear a story about the police. … Everyone—or at least, every black person—can recall an incident. Everyone can attest to friends and relatives who have been harassed, assaulted, or worse by the police.

The right story begins here: A majority-black community feels abused by its almost entirely white police force. [2] And complaining to the white-dominated local government does no good. (As a report from Arch City Defenders spells out, the town of Ferguson gets significant revenue from assessing fines against poor people.)

If you start there, the narrative takes a completely different path. When a policeman shot Michael Brown six times on a city street in broad daylight in front of witnesses, the Ferguson community was not shocked (the way I would be if one of my white friends were gunned down by police in my majority-white town). Quite the opposite, this was the kind of incident they found all too believable, given the police behavior they see all the time.

So the reaction we’ve been seeing on the streets isn’t “OMG! How can something like this happen?”, it’s “This shit has to stop.”

No mystery. So it’s no mystery at all why people who never met Michael Brown have been out on the streets. Brown’s death is part of a bigger issue that they all have a stake in: How can the police be gotten under community control, and disciplined to treat the community with respect?

Their tactics are also no mystery: When the political process is unresponsive, the streets are the only communication channel left. Trayvon Martin’s mother is supposed to have said, “If they won’t hear us, make them feel us.” And Ja’han Jones put it more aggressively on Salon: “What if being peaceful won’t change a thing?”

As far as Officer Wilson is concerned, the crowds are not rushing to judgment, they are speaking from experience. Yes, police act this way, and the result is always the same: If the incident isn’t ignored completely, it is shunted into a opaque “process” in which eyewitnesses are ignored and no quantity of physical evidence is sufficient to bring charges. Ferguson police have showed every indication of wanting to go that way: keeping back relevant information as long as possible, smearing Michael Brown, responding to protests with even more excessive force, leaking bogus “facts” that support Wilson, and arresting reporters.

What’s rare about the Brown shooting isn’t the shooting itself, but how visible everything is: The body was lying in the street for hours. The eyewitnesses have been on TV. Nothing in the autopsy or other available evidence contradicts their testimony. If the police don’t have to answer for this, then what are the limits? Is there anything they can’t sweep under the rug?

Once you understand where the story really starts and what it’s really about, then the whole detour into black-on-black crime is revealed to be “the politics of changing the subject“. Other than corpses, the two issues have nothing in common. It’s like asking Sean Hannity, “Why have you spent so much time on the four Americans who died at Benghazi when tens of thousands of Americans die in car accidents?”

My reality and theirs. Demographically, I look more like a Fox viewer than a Ferguson protester. I’m white, over 50, and have an above-median household income. I barely notice when a police car goes by, and when I have had occasion to deal with my local police — usually because I approached them with a question — they have been unfailingly polite. When I arrange to meet people socially or promise to be somewhere, I don’t allow extra time for the possibility that I might be stopped and frisked, or taken down to the police station and questioned about some crime I never heard of. That kind of stuff never happens to guys like me.

If I did find myself in an unexpected and unpleasant run-in with police, it would feel like snow in July. My instinct would be to wait it out until polite normality re-asserted itself. So I could easily follow the advice of LAPD’s Sunil Dutta:

if you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you. Don’t argue with me, don’t call me names, don’t tell me that I can’t stop you, don’t say I’m a racist pig, don’t threaten that you’ll sue me and take away my badge. Don’t scream at me that you pay my salary, and don’t even think of aggressively walking towards me. Most field stops are complete in minutes. How difficult is it to cooperate for that long? … Save your anger for later, and channel it appropriately. Do what the officer tells you to and it will end safely for both of you. We have a justice system in which you are presumed innocent; if a cop can do his or her job unmolested, that system can run its course. Later, you can ask for a supervisor, lodge a complaint or contact civil rights organizations if you believe your rights were violated. Feel free to sue the police! Just don’t challenge a cop during a stop. [3]

Great advice for me, but I don’t believe it has much to do with the reality of places like Ferguson, or even parts of Dutta’s own Los Angeles.

What if I weren’t a middle-aged middle-class white guy? What if police abuse is normal in my experience? What if I’ve cooperated before, and before, and before that … and the stop wasn’t “complete in minutes” and I got tased, pepper-sprayed or worse anyway? What if I “saved my anger for later” and the appropriate channels laughed at me? What if I have dead or injured friends whose attempts to cooperate didn’t “end safely”, and other friends who weren’t “presumed innocent” in court, and are now in prison on sketchy or manufactured evidence?

What’s your advice for me then, Officer Dutta?

What your Fox-watching uncle doesn’t get. The frustrated citizens of Ferguson are pursuing a plan that makes sense: Wait for an incident so egregious that it can’t be swept under the rug, and then get out on the streets in large numbers. Tell your story to the country, put your political leaders on the spot, and show the world how “justice” works in your town. Shine a spotlight on the usual shadowy self-investigation process, and dare the powers-that-be to work their usual trickery in front of a national audience.

That plan might not work — it didn’t work in Florida — but what more likely plan have you got for them? They can’t just be quiet and wait for justice to be served. They’ve got to do something.

Because “we go through this shit every day”, and that shit has to stop.


[1] Reason‘s Steve Chapman asks:

Most crimes are committed by males, but we don’t refer to “male-on-male crime.” Whites in the South are substantially more prone to homicide than those in New England, but no one laments “Southerner-on-Southerner crime.” Why does crime involving people of African descent deserve its own special category?

[2] Unlike Bill O’Reilly, Ferguson residents aren’t giving police credit for all the people they stop and don’t kill. What’s up with that? And what about the 3/4ths of the people police across the nation kill who aren’t black?

[3] This advice was funnier when Chris Rock was giving it.

The Ferguson Test

This week’s events in Ferguson have tested all of us, not just police and politicians.


In a classic South Park bit, Stan’s Dad is on Wheel of Fortune. The category is “People Who Annoy You”, and the letters showing are

N-_-G-G-E-R-S

The solution is naggers, but Mr. Marsh is so overwhelmed by the horror/forbidden-pleasure of saying “niggers” on TV that he can’t think of anything else. Watching for the first time, neither could I. Surely no TV-game-show puzzle could have niggers as its solution, but it instantly jumps to mind anyway. And once you’ve had that thought, calmly running through the other vowels to find a more probable solution doesn’t seem like an option any more.

By the time he blurts out “Niggers!”, Mr. Marsh even seems proud of himself for having found the courage to overcome political correctness and speak the truth as he sees it. But it isn’t truth. It’s just an idea that shines so brightly in his head that he can’t see any alternatives.

That’s how unconscious racism works.

Stan’s Dad is not an I-hate-black-people kind of racist, and undoubtedly he would be offended to be described as any kind of racist at all. In most ways, he’s a fairly typical middle-class white parent. He didn’t wake up that morning thinking, “I’m going to say ‘nigger’ today, and don’t let anybody try to stop me.” He knows what attitudes and behaviors are acceptable and unacceptable in today’s society, and he does his best to pretend that his mind really works that way.

But it just doesn’t. Whatever his conscious intentions, his mental reflexes have been passed down from another era, when racism was as common as air.

Reacting to presidents. Earlier this year, I described how unconscious racism figures in people’s responses to President Obama. Being president and living in the White House has always been a pretty sweet ride. Protocol requires everyone to defer to you. Wherever you go, no expense is spared to keep you and your family comfortable and safe.

The public has known and accepted this for a long time. The President symbolizes the United States, so of course the Kennedys or Reagans or Bushes should be treated with utmost respect. But when the First Family became black, all that luxury and deference suddenly looked different. Why were the Obamas lording it over us like this?

So, those white folks who didn’t even notice when Reagan’s or JFK’s feet were on the desk, but who see Obama’s and think “He was raised so badly.” — are they also secretly thinking “Who does that uppity nigger think he is, acting like he’s a real president or something?” Maybe a few here or there, but mostly no. They aren’t consciously hating Obama because he’s black. But they can’t look at a black president the same way they looked at the 43 white presidents. Things just look different when Obama does them.

And once the thought “Why are the Obamas lording it over us?” pops into your head, it’s genuinely difficult to back up and think: “Wait a minute. Are there other ways to look at this? Would I be interpreting the situation this way if he were white?” In fact, not voicing that bright and shiny “truth” feels like cowardice. The racial influence is long forgotten: Who does this Obama guy think he is, acting like he’s President of the United States or something?

Unconscious racism in the police. At this point, we don’t really know what Darren Wilson was thinking when he killed Michael Brown, sparking more than a week of civil unrest in Ferguson, Missouri. But we know that there’s a long history of police officers reacting differently to black citizens than to whites. Ezra Klein put it bluntly:

Incidents of excessive force are commonplace, and increasingly, there’s a list of young black men who have died for no other reason than that they ran into a police officer at the wrong time and in the wrong way.

Earlier this month, for example, 22-year-old John Crawford was killed by police in a WalMart in Ohio. After he picked up a realistic-looking air rifle from the shelf, another customer called police about an armed man in the store. Crawford was talking to his girlfriend on the phone when police demanded he drop the weapon. While he tried to explain that it wasn’t a real weapon, they killed him.

By contrast, white open-carry activists have been showing up in public places like Target or Home Depot, prominently displaying actual deadly weapons. None of them have provoked a similar misunderstanding. In Aurora, Colorado (site of the 2012 movie-theater massacre) an 18-year-old white man was carrying a shotgun down a public street. When stopped by police, he argued with them and refused to turn over the gun or show any ID. They let him continue on his way, gun in hand.

Most of this disparity, I suspect, is unconscious. I sincerely doubt that Crawford’s killers went to work that morning thinking, “I hate those young black bucks. I’m going to shoot me one today if I get the chance.” But police have to deal with emergency situations that may require quick action. Somebody seems to have a gun and people might be in danger — do you calmly talk him down or go in shooting? There may be no time to work through a checklist and make an objective decision; you have to go with your gut.

But what if your gut is prejudiced? What if seeing a young black man in an emergency situation is like seeing N-_-G-G-E-R-S on the puzzle board? One possibility — that he’s a dangerous criminal and innocent people will die unless you shoot him right now — pops to mind and blots out all others.

The Ferguson test.This is a test,” Missouri Governor Jay Nixon said. But it’s not just the people of Ferguson or the police or Nixon himself who are being tested this week. It’s all of us. As we watch events unfold, in how many ways do they just look different because of race? How hard is it to back up, re-examine our initial framing, and ask ourselves what we’d be thinking if race were not a factor?

The Ferguson police as an organization. Looking at their initial treatment of the Brown shooting, it’s hard to avoid the conclusion that Ferguson police didn’t think killing a black teen-ager was a big deal, or that his family or the community deserved any answers about how it happened or who did it or why. Shielding the shooter appeared to be the paramount concern.

When protests did erupt, police seemed to see only the public order and safety issues rather than the community relations issues. Instead of working with community leaders to balance public safety concerns with the public rights of assembly and free expression, police attempted to dictate to the community, and to enforce their edicts with overwhelming force.

The fact that the police version of the shooting was at odds with the accounts of eye-witnesses, including at least two who did not know Michael Brown, did not seem to bother them. Witnesses and the family’s private autopsy (results of the police autopsy haven’t been revealed) paint the picture of an intentional, unnecessary killing: shots aimed at Brown’s back while he attempted to run away, and then more shots after Brown turns with his hands in the air. After interviewing one witness, MSNBC’s Lawrence O’Donnell assesses her testimony as a description of first degree murder, and the legal experts on his show agree. And yet the officer has not been arrested or charged with any crime at all.

When police finally released Wilson’s name, they simultaneously released video of Brown apparently stealing cigars from a convenience store. That video has no relevance to the legal case — officers can’t shoot down suspects trying to surrender, no matter what they are suspected of doing — but it did have public relations value. It fed the storyline that focuses on black lawbreaking and violence to the exclusion of police misconduct.

Political leaders. It was obvious early on that local officials in Ferguson were making the situation worse, and yet higher authorities were slow to intervene or comment. The swing voters in Missouri are rural or suburban whites, and Governor Nixon has been careful not to look too pro-black. You have to wonder: If police were treating a white community like an occupied war zone, and if large numbers of local whites and their elected representatives were protesting, would it take that long to get a response?

Media. Some reporters are doing their best to get the facts out and portray them fairly, but it is far too easy to treat Ferguson residents as one big black blob. If there is looting and violence, then the citizens of Ferguson are violent looters. No wonder police are shooting them in the street and riding around in tanks and paying no attention to their concerns. Let them stop breaking the law and then maybe we’ll listen to them.

It’s hard to imagine a white community getting this kind of treatment. Whites who break the law are typically presented in the media as aberrations. Often they are portrayed as crazy loners, even when they belong to groups that promote precisely the kinds of crimes they commit. If you’re a law-abiding white homeowner with complaints about your local government, you stand very little chance of being lumped together with thieves and vandals who live in your neighborhood and also happen to be white.

Again, maybe a few journalists or TV personalities are thinking, “Here’s a chance to smear blacks”, but I doubt that’s the primary motivation. I think rioting black ghetto is another one of those bright shiny notions. Get it in your head and it’s hard to get it out.

Also, I can’t count the number of times I’ve run into the comment that we shouldn’t “jump to conclusions” because “we don’t know all the facts” or “we don’t know what really happened”. If several white eyewitnesses gave consistent accounts of excessive force by a black police officer, would we be instructed to ignore them in the same way? Or does the fact that the witnesses are black make it easier to discount their testimony? Does the whiteness of the police chief make his version more authoritative?

All of us. We can blame the police for laying out self-justifying and community-diminishing narratives, and we can blame the media for promoting them. But why do we fall for them?

And I do mean we. Like Randy Marsh, I was raised at time when racism was common as air. When I take a step back, I can see the effects of that training in the way my pre-conscious processes shape the perceptions that my conscious mind then wants to treat as facts.

Situations involving black people just look different. Their lives seem less consequential, their deaths less tragic. When I hear of their misfortunes or the injustices they suffer, part of me is waiting for the explanation of how they brought this on themselves. Their stories and testimonies are easily discounted. The thought, “I need to do something about this” does not arise on its own, unless the something involves defending myself and other respectable white people. A crowd of blacks easily stops being a collection of individual humans and becomes a malevolent unit. I expect violence and lawlessness, and when it appears it dominates the picture I see. “Well, there you go,” I think.

I can see how unfair those thoughts are, when I take a step back. But it’s so easy not to.

Unitarian Universalist minister Meg Riley writes:

As a white person in the U.S., I am conditioned from birth to see whiteness as safety — white neighborhoods, white people, white authority figures. My lived experience, my conversations with people of color, and my study of history have shown me over and over that this is a wild and cruel perversion of the truth. But the cultural conditioning is strong. Unless I fight it every day, white superiority seeps into my brain in slow, almost undetectable ways.

A lot of whites get offended by the suggestion that America is a racist society. They know that the vast majority of whites are not KKK-style racists, actively plotting evil against non-whites. (Some are, of course, but it’s not fair to judge the many by the misdeeds of the few — at least not when we’re talking about whites.)

My point is: We don’t have to be KKK-style racists. We can maintain a racist society quite well just by letting our minds do what they do: assemble age-old stereotypes into the narratives we’ve been hearing all our lives.

We can do that, or we can “fight it every day”. I invite you to take the Ferguson Test and see how you’re doing in that fight.

Not a Tea Party, a Confederate Party

Tea Partiers say you don’t understand them because you don’t understand American history. That’s probably true, but not in the way they want you to think.


Late in 2012, I came out of the Lincoln movie with two historical mysteries to solve:

  • How did the two parties switch places regarding the South, white supremacy, and civil rights? In Lincoln’s day, a radical Republican was an abolitionist, and when blacks did get the vote, they almost unanimously voted Republican. Today, the archetypal Republican is a Southern white, and blacks are almost all Democrats. How did American politics get from there to here?
  • One of the movie’s themes was how heavily the war’s continuing carnage weighed on Lincoln. (It particularly came through during Grant’s guided tour of the Richmond battlefield.) Could any cause, however lofty, justify this incredible slaughter? And yet, I realized, Lincoln was winning. What must the Confederate leaders have been thinking, as an even larger percentage of their citizens died, as their cities burned, and as the accumulated wealth of generations crumbled? Where was their urge to end this on any terms, rather than wait for complete destruction?

The first question took some work, but yielded readily to patient googling. I wrote up the answer in “A Short History of White Racism in the Two-Party System“. The second turned out to be much deeper than I expected, and set off a reading project that has eaten an enormous amount of my time over the last two years. (Chunks of that research have shown up in posts like “Slavery Lasted Until Pearl Harbor“, “Cliven Bundy and the Klan Komplex“, and my review of Ta-Nehisi Coates’ article on reparations.) Along the way, I came to see how I (along with just about everyone I know) have misunderstood large chunks of American history, and how that misunderstanding clouds our perception of what is happening today.

Who really won the Civil War? The first hint at how deep the second mystery ran came from the biography Jefferson Davis: American by William J. Cooper. In 1865, not only was Davis not agonizing over how to end the destruction, he wanted to keep it going longer. He disapproved of Lee’s surrender at Appomattox, and when U. S. troops finally captured him, he was on his way to Texas, where an intact army might continue the war.

That sounded crazy until I read about Reconstruction. In my high school history class, Reconstruction was a mysterious blank period between Lincoln’s assassination and Edison’s light bulb. Congress impeached Andrew Johnson for some reason, the transcontinental railroad got built, corruption scandals engulfed the Grant administration, and Custer lost at Little Big Horn. But none of it seemed to have much to do with present-day events.

And oh, those blacks Lincoln emancipated? Except for Booker T. Washington and George Washington Carver, they vanished like the Lost Tribes of Israel. They wouldn’t re-enter history until the 1950s, when for some reason they still weren’t free.

Here’s what my teachers’ should have told me: “Reconstruction was the second phase of the Civil War. It lasted until 1877, when the Confederates won.” I think that would have gotten my attention.

It wasn’t just that Confederates wanted to continue the war. They did continue it, and they ultimately prevailed. They weren’t crazy, they were just stubborn.

The Lost Cause. At about the same time my American history class was leaving a blank spot after 1865, I saw Gone With the Wind, which started filling it in like this: Sadly, the childlike blacks weren’t ready for freedom and full citizenship. Without the discipline of their white masters, many became drunks and criminals, and they raped a lot of white women. Northern carpetbaggers used them (and no-account white scalawags) as puppets to control the South, and to punish the planter aristocrats, who prior to the war had risen to the top of Southern society through their innate superiority and virtue.

But eventually the good men of the South could take it no longer, so they formed the Ku Klux Klan to protect themselves and their communities. They were never able to restore the genteel antebellum society — that Eden was gone with the wind, a noble but ultimately lost cause — but they were eventually able to regain the South’s honor and independence. Along the way, they relieved their beloved black servants of the onerous burden of political equality, until such time as they might become mature enough to bear it responsibly.

A still from The Birth of a Nation

That telling of history is now named for its primary proponent, William Dunning. It is false in almost every detail. If history is written by the winners, Dunning’s history is the clearest evidence that the Confederates won. [see endnote 1]

Margaret Mitchell’s 1936 novel had actually toned it down a little. To feel the full impact of Dunning-school history, you need to read Thomas Dixon’s 1905 best-seller, The Clansman: a historical romance of the Ku Klux Klan. Or watch the 1915 silent movie made from it, The Birth of a Nation, which was the most popular film of all time until Gone With the Wind broke its records.

The iconic hooded Klansman on his horse, the Knight of the Invisible Empire, was the Luke Skywalker of his day.

The first modern war. The Civil War was easy to misunderstand at the time, because there had never been anything like it. It was a total mobilization of society, the kind Europe wouldn’t see until World War I. The Civil War was fought not just with cannons and bayonets, but with railroads and factories and an income tax.

If the Napoleonic Wars were your model, then it was obvious that the Confederacy lost in 1865: Its capital fell, its commander surrendered, its president was jailed, and its territories were occupied by the opposing army. If that’s not defeat, what is?

But now we have a better model than Napoleon: Iraq.

After the U.S. forces won on the battlefield in 1865 and shattered the organized Confederate military, the veterans of that shattered army formed a terrorist insurgency that carried on a campaign of fire and assassination throughout the South until President Hayes agreed to withdraw the occupying U. S. troops in 1877. Before and after 1877, the insurgents used lynchings and occasional pitched battles to terrorize those portions of the electorate still loyal to the United States. In this way they took charge of the machinery of state government, and then rewrote the state constitutions to reverse the postwar changes and restore the supremacy of the class that led the Confederate states into war in the first place. [2]

By the time it was all over, the planter aristocrats were back in control, and the three constitutional amendments that supposedly had codified the U.S.A’s victory over the C.S.A.– the 13th, 14th, and 15th — had been effectively nullified in every Confederate state. The Civil Rights Acts had been gutted by the Supreme Court, and were all but forgotten by the time similar proposals resurfaced in the 1960s. Blacks were once again forced into hard labor for subsistence wages, denied the right to vote, and denied the equal protection of the laws. Tens of thousands of them were still physically shackled and subject to being whipped, a story historian Douglas Blackmon told in his Pulitzer-winning Slavery By Another Name.

So Lincoln and Grant may have had their mission-accomplished moment, but ultimately the Confederates won. The real Civil War — the one that stretched from 1861 to 1877 — was the first war the United States lost.

The missed opportunity. Today, historians like Eric Foner and Douglas Egerton portray Reconstruction as a missed opportunity to avoid Jim Crow and start trying to heal the wounds of slavery a century sooner. Following W.E.B. DuBois’ iconoclastic-for-1935 Black Reconstruction, they see the freedmen as actors in their own history, rather than mere pawns or victims of whites. As a majority in Mississippi and South Carolina, and a substantial voting bloc across the South, blacks briefly used the democratic system to try to better their lot. If the federal government had protected the political process from white terrorism, black (and American) history could have taken an entirely different path.

In particular, 1865 was a moment when reparations and land reform were actually feasible. Late in the war, some of Lincoln’s generals — notably Sherman — had mitigated their slave-refugee problem by letting emancipated slaves farm small plots on the plantations that had been abandoned by their Confederate owners. Sick or injured animals unable to advance with the Army were left behind for the slaves to nurse back to health and use. (Hence “forty acres and a mule”.) Sherman’s example might have become a land-reform model for the entire Confederacy, dispossessing the slave-owning aristocrats in favor of the people whose unpaid labor had created their wealth.

Instead, President Johnson (himself a former slave-owner from Tennessee) was quick to pardon the aristocrats and restore their lands. [3] That created a dynamic that has been with us ever since: Early in Reconstruction, white and black working people sometimes made common cause against their common enemies in the aristocracy. But once it became clear that the upper classes were going to keep their ill-gotten holdings, freedmen and working-class whites were left to wrestle over the remaining slivers of the pie. Before long, whites who owned little land and had never owned slaves had become the shock troops of the planters’ bid to restore white supremacy.

Along the way, the planters created rhetoric you still hear today: The blacks were lazy and would rather wait for gifts from the government than work (in conditions very similar to slavery). In this way, the idle planters were able to paint the freedmen as parasites who wanted to live off the hard work of others.

The larger pattern. But the enduring Confederate influence on American politics goes far beyond a few rhetorical tropes. The essence of the Confederate worldview is that the democratic process cannot legitimately change the established social order, and so all forms of legal and illegal resistance are justified when it tries.

That worldview is alive and well. During last fall’s government shutdown and threatened debt-ceiling crisis, historian Garry Wills wrote about our present-day Tea Partiers: “The presiding spirit of this neo-secessionism is a resistance to majority rule.”

The Confederate sees a divinely ordained way things are supposed to be, and defends it at all costs. No process, no matter how orderly or democratic, can justify fundamental change.

When in the majority, Confederates protect the established order through democracy. If they are not in the majority, but have power, they protect it through the authority of law. If the law is against them, but they have social standing, they create shams of law, which are kept in place through the power of social disapproval. If disapproval is not enough, they keep the wrong people from claiming their legal rights by the threat of ostracism and economic retribution. If that is not intimidating enough, there are physical threats, then beatings and fires, and, if that fails, murder.

That was the victory plan of Reconstruction. Black equality under the law was guaranteed by the 14th Amendment. But in the Confederate mind, no democratic process could legitimate such a change in the social order. It simply could not be allowed to stand, and it did not stand.

In the 20th century, the Confederate pattern of resistance was repeated against the Civil Rights movement. And though we like to claim that Martin Luther King won, in many ways he did not. School desegregation, for example, was never viewed as legitimate, and was resisted at every level. And it has been overcome. By most measures, schools are as segregated as ever, and the opportunities in white schools still far exceed the opportunities in non-white schools.

Today, ObamaCare cannot be accepted. No matter that it was passed by Congress, signed by the President, found constitutional by the Supreme Court, and ratified by the people when they re-elected President Obama. It cannot be allowed to stand, and so the tactics for destroying it get ever more extreme. The point of violence has not yet been reached, but the resistance is still young.

Violence is a key component of the present-day strategy against abortion rights, as Judge Myron Thompson’s recent ruling makes clear. Legal, political, social, economic, and violent methods of resistance mesh seamlessly. The Alabama legislature cannot ban abortion clinics directly, so it creates reasonable-sounding regulations the clinics cannot satisfy, like the requirement that abortionists have admitting privileges at local hospitals. Why can’t they fulfill that requirement? Because hospitals impose the reasonable-sounding rule that their doctors live and practice nearby, while many Alabama abortionists live out of state. The clinics can’t replace them with local doctors, because protesters will harass the those doctors’ non-abortion patients and drive the doctors out of any business but abortion. A doctor who chooses that path will face threats to his/her home and family. And doctors who ignore such threats have been murdered.

Legislators, of course, express horror at the murder of doctors, just as the pillars of 1960s Mississippi society expressed horror at the Mississippi Burning murders, and the planter aristocrats shook their heads sadly at the brutality of the KKK and the White Leagues. But the strategy is all of a piece and always has been. Change cannot stand, no matter what documents it is based on or who votes for them. If violence is necessary, so be it.

Unbalanced. This is not a universal, both-sides-do-it phenomenon. Compare, for example, the responses to the elections of our last two presidents. Like many liberals, I will go to my grave believing that if every person who went to the polls in 2000 had succeeded in casting the vote s/he intended, George W. Bush would never have been president. I supported Gore in taking his case to the Supreme Court. And, like Gore, once the Court ruled in Bush’s favor — incorrectly, in my opinion — I dropped the issue.

For liberals, the Supreme Court was the end of the line. Any further effort to replace Bush would have been even less legitimate than his victory. Subsequently, Democrats rallied around President Bush after 9/11, and I don’t recall anyone suggesting that military officers refuse his orders on the grounds that he was not a legitimate president.

Barack Obama, by contrast, won a huge landslide in 2008, getting more votes than any president in history. And yet, his legitimacy has been questioned ever since. The Birther movement was created out of whole cloth, there never having been any reason to doubt the circumstances of Obama’s birth. Outrageous conspiracy theories of voter fraud — millions and millions of votes worth — have been entertained on no basis whatsoever. Immediately after Obama took office, the Oath Keeper movement prepared itself to refuse his orders.

A black president calling for change, who owes most of his margin to black voters — he himself is a violation of the established order. His legitimacy cannot be conceded.

Confederates need guns. The South is a place, but the Confederacy is a worldview. To this day, that worldview is strongest in the South, but it can be found all over the country (as are other products of Southern culture, like NASCAR and country music). A state as far north as Maine has a Tea Party governor.

Gun ownership is sometimes viewed as a part of Southern culture, but more than that, it plays a irreplaceable role in the Confederate worldview. Tea Partiers will tell you that the Second Amendment is our protection against “tyranny”. But in practice tyranny simply means a change in the established social order, even if that change happens — maybe especially if it happens — through the democratic processes defined in the Constitution. If the established social order cannot be defended by votes and laws, then it will be defended by intimidation and violence. How are We the People going to shoot abortion doctors and civil rights activists if we don’t have guns?

Occasionally this point becomes explicit, as when Nevada Senate candidate Sharron Angle said this:

You know, our Founding Fathers, they put that Second Amendment in there for a good reason and that was for the people to protect themselves against a tyrannical government. And in fact Thomas Jefferson said it’s good for a country to have a revolution every 20 years. I hope that’s not where we’re going, but, you know, if this Congress keeps going the way it is, people are really looking toward those Second Amendment remedies and saying my goodness what can we do to turn this country around? I’ll tell you the first thing we need to do is take Harry Reid out.

Angle wasn’t talking about anything more “tyrannical” than our elected representatives voting for things she didn’t like (like ObamaCare or stimulus spending). If her side can’t fix that through elections, well then, the people who do win those elections will just have to be intimidated or killed. Angle doesn’t want it to come to that, but if liberals won’t yield peacefully to the conservative minority, what other choice is there?

Gun-rights activist Larry Pratt doesn’t even seem regretful:

“The Second Amendment is not for hunting, it’s not even for self-defense,” Pratt explained in his Leadership Institute talk. Rather, it is “for restraining tyrannical tendencies in government. Especially those in the liberal, tyrannical end of the spectrum. There is some restraint, and even if the voters of Brooklyn don’t hold them back, it may be there are other ways that their impulses are somewhat restrained. That’s the whole idea of the Second Amendment.”

So the Second Amendment is there not to defend democracy, but to fix what the progressive “voters of Brooklyn” get wrong.

It’s not a Tea Party. The Boston Tea Party protest was aimed at a Parliament where the colonists had no representation, and at an appointed governor who did not have to answer to the people he ruled. Today’s Tea Party faces a completely different problem: how a shrinking conservative minority can keep change at bay in spite of the democratic processes defined in the Constitution. That’s why they need guns. That’s why they need to keep the wrong people from voting in their full numbers.

These right-wing extremists have misappropriated the Boston patriots and the Philadelphia founders because their true ancestors — Jefferson Davis and the Confederates — are in poor repute. [4]

But the veneer of Bostonian rebellion easily scrapes off; the tea bags and tricorn hats are just props. The symbol Tea Partiers actually revere is the Confederate battle flag. Let a group of right-wingers ramble for any length of time, and you will soon hear that slavery wasn’t really so bad, that Andrew Johnson was right, that Lincoln shouldn’t have fought the war, that states have the rights of nullification and secession, that the war wasn’t really about slavery anyway, and a lot of other Confederate mythology that (until recently) had left me asking, “Why are we talking about this?”

By contrast, the concerns of the Massachusetts Bay Colony and its revolutionary Sons of Liberty are never so close to the surface. So no. It’s not a Tea Party. It’s a Confederate Party.

Our modern Confederates are quick to tell the rest of us that we don’t understand them because we don’t know our American history. And they’re right. If you knew more American history, you would realize just how dangerous these people are.



Endnotes

[1] The other clear evidence stands in front of nearly every courthouse in the South: statues of Confederate heroes. You have to be blind not to recognize them as victory monuments. In the Jim Crow era, these stone sentries guarded the centers of civic power against Negroes foolish enough to try to register to vote or claim their other constitutional rights.

Calhoun way up high

In Away Down South: a history of Southern identity, James C. Cobb elaborates:

African Americans understood full well what monuments to the antebellum white regime were all about. When Charleston officials erected a statue of proslavery champion John C. Calhoun, “blacks took that statue personally,” Mamie Garvin Fields recalled. After all, “here was Calhoun looking you in the face and telling you, ‘Nigger, you may not be a slave but I’m back to see you stay in your places.’ ” In response, Fields explained, “we used to carry something with us, if we knew we would be passing that way, in order to deface that statue — scratch up the coat, break up the watch chain, try to knock off the nose. … [C]hildren and adults beat up John C. Calhoun so badly that the whites had to come back and put him way up high, so we couldn’t get to him.”

[2] The vocabulary of this struggle is illuminating. A carpetbagger was a no-account Northerner who arrived in the South with nothing more than the contents of a carpetbag. A scalawag was a lower-class Southern white who tried to rise above his betters in the post-war chaos. The class-based nature of these insults demonstrates who was authorizing this history: the planter aristocrats.

For a defense of the claim that the aristocrats intentionally led the South into war, see Douglas Egerton’s Year of Meteors: Stephen Douglas, Abraham Lincoln, and the Election that Brought on the Civil War.

[3] Though Congress had to find other “high crimes and misdemeanors” for their bill of impeachment, Johnson’s betrayal of the United States’ battlefield victory was the real basis of the attempt to remove him.

[4] Jefferson Davis and the Confederates also misappropriated the Founders. It started with John Calhoun’s Discourse on the Constitution and Government of the United States, published posthumously in 1851, which completely misrepresented the Founders and their Constitution. Calhoun’s view (that the Union was a consortium of states with no direct relationship to the people) would have made perfect sense if the Constitution had begun “We the States” rather than “We the People”.

Calhoun disagreed with Jefferson on one key point: All men are not created equal.

Modern conservatives who attribute their views to the Founders are usually unknowingly relying on Calhoun’s false image of the Founders, which was passed down through Davis and from there spread widely in Confederate folklore.

Can Conservatives Solve Poverty?

 

Paul Ryan engages the problem, but can’t remove his ideological blinders.


Paul Ryan has spent years developing a reputation as Captain Cut: cut discretionary spending, cut entitlements, and most of all cut any program designed to help the poor. His budget proposals have meshed well with the other part of his reputation (which he sometimes claims and sometimes disowns): a follower of Ayn Rand, the author/philosopher who saw politics as a competition between Makers and Takers.

Recently, though, Ryan has been coming under the influence of the “reform conservatives” or “reformicons”: a small group of young conservative intellectuals like Yuval Levin and Ramesh Ponnuru — occasionally supported by the NYT’s conservative columnists Ross Douthat and David Brooks — who believe the Republican Party can’t in win the long run as the Party of No, and yet who don’t want to return to the center and compromise with Democrats. Instead, they want to see the GOP claim the Party of Ideas mantle by developing a set of distinctively conservative approaches to solving the very real problems that face America’s middle class: paying for health care, educating their children, finding good jobs, and so on.

And somewhere along the way, conservatives need to come up with their own plan for dealing with poverty, either because they actually care about the poor, or (more cynically) because they know a lot of middle-class voters don’t respond well to the harsh image conservatives have been cultivating. So the message has to be: “We care … we just care differently.”

The root cause of poverty: poor people. But if reform conservatism is going to take over the Republican Party rather than split off from it, it needs to stay in tune with the core sensibilities of the conservative movement. In particular, it can’t change the conservative view of the root cause of poverty: poor people.

I mean, what else could it be? Poverty can’t be capitalism’s fault, because capitalism is the only moral economic system. The problem can’t be the rich soaking up too much of the national output, because the rich are job creators whose wealth benefits everyone. Poverty can’t come from racism, because racism ended in the 1960s. (So if poverty seems to be concentrated in certain racial groups, they must have a cultural problem.)

Consequently, any conservative poverty program has to focus on fixing the character flaws of poor people: They need discipline. They need a work ethic. They need to learn to save their pennies rather than blowing everything on drugs and bling, and to control their libidos rather than spawning children they can’t feed.

The only other possible place to put the blame is government: Government has taken advantage of poor people’s lack of character by offering them benefits. This has made them dependent on government the way an addict is dependent on his drug. Addiction — pushers and addicts — is the fundamental conservative model of the liberal welfare state.

That’s their explanation of why people are still poor, 50 years after LBJ declared war on poverty: Liberals never intended to end poverty, any more than pushers want to end drug addiction. They just want to keep poor people dependent on government benefits, so that they’ll elect Democrats to keep the juice flowing.

So now you can see the outlines of a conservative poverty message: demand more of poor people, teach them middle-class virtues, target benefits more efficiently, and keep benefits flowing just long enough to wean the poor away from their dependency. Then they’ll be back on the path to wealth like the rest of America.

That message won’t convert many poor people, but that’s not really where it’s aimed. It’s supposed to comfort suburban moms, who lean Republican on other issues, but need to believe they’re voting for a plan more compassionate than Scrooge’s prisons and workhouses.

Ryan’s two reports. Paul Ryan is approaching this issue systematically, laying groundwork for the long term rather than grabbing for a few days of headlines.

He started down this path in March, with The War on Poverty: 50 Years Later (which I reviewed). WoP@50 identified and evaluated 92 separate federal programs aimed at helping the poor, and suggested that the government should have a more integrated approach to poverty that builds on the programs that work and eliminates the ones that don’t. He continued in July with Expanding Opportunity in America, which sketches a framework for that integrated approach without making any cost estimates other than to stipulate that the whole program should be “deficit neutral”.

This is not a budget-cutting exercise -— this is a reform proposal. This consolidation does not make judgments about an optimal level of spending.

EOiA‘s approach has two pieces: An expansion of the earned income tax credit to put money directly into the hands of the working poor, and block grants to the states who can use them to provide a variety of other services currently provided either by the federal government or a federal/state partnership: direct welfare payments, job training, child care, drug treatment, housing subsidies, food support, and so on.

Case managers. So far none of that is surprising. But the next piece is: Ryan imagines a system in which the government does not define a uniform set of entitlements that anyone fitting the definition automatically can get. Instead, he envisions each aid recipient working with a case manager who has discretion to create an individualized package of benefits.

Together, client and manager would work out a plan to solve whatever character issues and lack of qualifications prevent the client from getting a good job and leaving government assistance behind. This plan would become a “contract” that the client would sign and the manager would enforce.

Under each life plan, if the individual meets the benchmarks ahead of schedule, then he or she could be rewarded. For example, if the goal of an individual’s plan is to find a job within six months, and he or she starts working within three months, he or she could receive a bonus. Bonuses could take a number of creative forms, such as a savings bond. … [But] the opportunity plan could stipulate consequences for breaches of its terms, most likely immediate sanctions and a reduction in benefits.

If you’re an optimist like Reihan Salam, you can picture this working marvelously.

The theory behind having smart, dedicated caseworkers working on behalf of people who are down on their luck is that spending a bit more time and money now could help save time and money later. If someone takes the time to understand your personal situation and the particular challenges you face, there’s a better likelihood you’ll have a successful outcome down the line.

… People with low or no earnings … face diverse obstacles. Some need short-term help to, say, fix their car, which will allow them to commute to work, or to make a deposit on a rental apartment. Others don’t have the skills they need to earn enough to support themselves and, for whatever reason, will have a very hard time acquiring them. Sure, you could give both kinds of people food stamps and call it a day. Or you could recognize that one-size-fits-all programs don’t do justice to the ways in which individual circumstances vary.

But you can also picture the amount of power a case manager would have over her clients and wonder how to prevent abuse. And that means paying not just case managers (who might spend a considerable amount of time on each case), but also inspectors and supervisors to keep an eye on the case managers. Whether the efficiency gained by tailoring benefits would pay for that overhead is debatable.

Also, Ryan imagines the case workers not being government employees. Catholic Charities comes up in one example, and he might even be thinking of privatized for-profit case management. The first possibility makes me wonder how the law would prevent Guru Bob Charities from taking over the lives of Guru Bob’s followers. And the second has me thinking about the corruption that has accompanied privatized public schools. In a state that doesn’t seem concerned about its poor — Mississippi comes to mind — who’s going to care if the federal block grant winds up as corporate profit?

And finally, what happens if you get to the point in your contract where you’re supposed to be working, but the economy has crashed and there just are no jobs? Or there are only part-time minimum-wage jobs that won’t get you above the poverty level? The whole concept suffers from the Musical Chairs Fallacy*: No matter how quick or alert you train the players to be, somebody’s going to be eliminated if there aren’t enough chairs.

Jamelle Bouie calls the whole approach “breath-takingly paternalistic” and “wrong-headed”.

At some point in their lives, millions of Americans will experience a short spell of poverty. Not because they don’t have a plan to fix their lives or lack the skills to move forward, but because our economy isn’t run to create demand for labor, isn’t equipped to deliver stable work to everyone who wants it, and wasn’t built to address the distributive needs of everyone who works.

I am struck by the difference between how we think of the poor and how we think of corporations. If a poor person gets help and then doesn’t look for a job as hard as we think he should, we are morally outraged. But if a corporate tax cut is justified by the jobs it will create, and some corporation pockets the money but doesn’t create any jobs … well, no big deal. We take for granted that a corporation will be clever in the way it manipulates government programs, but the same cleverness in a poor person is reprehensible.

Independence. For the most part, Ryan’s committee has studied the issue by talking to conservative poverty experts rather than to poor people. (Why would they? If poor people were smart, they wouldn’t be poor.) But they did let one impoverished woman testify, and the culture clash was obvious.

It centered on the word independence. Tianna Gaines-Turner is a mother of three who is married and lives with her husband. They both work low-paying jobs. Her children all suffer from asthma and two are epileptic. Rep. Todd Rokita (R-IN) offered a thought experiment in which current poverty programs were increased fivefold. People would be lifted out of poverty, he said, but it wouldn’t “break of the cycle of dependency”. Gaines-Turner replied, “I am independent on the program.” In other words, her family can have its own apartment and she and her husband can take care of their own children, rather than being homeless or in a shelter or giving their children up to someone else.

It’s precisely that “independence on the program” that Ryan would do away with. Rather than claiming benefits her situation entitles her to, Gaines-Turner would go hat-in-hand to a case manager, who would tell her how to live and cut her off if she didn’t obey.

What Ryan gets right. The two main ways to help the working poor are by increasing either the minimum wage (where the additional money comes from the employer) or the earned income tax credit (where it comes from the government). There’s an argument to be had over which is better, but either is better than nothing. I see the EITC as largely a subsidy to WalMart (which can go on paying wages its workers can’t live on), but I can swallow that if it’s the only politically viable choice.**

Ryan also proposes making the EITC easier to collect, so that you don’t have wait and file a tax return at the end of the year. I can get behind that.

And the most important change in conservative thinking is buried deep in EOiA: Ryan has noticed how lives and families are disrupted by long prison sentences for non-violent drug offenders.

A growing body of research exposes the high costs of incarceration. To help low-risk, non-violent offenders re-enter society, rebuild their families, and pursue careers, this proposal would revise mandatory-minimum guidelines and couple expanded enrollment in rehabilitative programing with an earned-time-credit system in federal prisons.

Liberals should jump on this. If Ryan is serious, it could have a huge impact.

But is he serious? I really have no idea. Quite possibly these reports are all window dressing, so that Republicans can say, “We have our own poverty plan.” Presumably in a few months Ryan will produce the third report in his trilogy, where he starts using numbers. That should tell us something.


* A version of the Composition Fallacy.

** Ryan argues that increasing the minimum wage would kill jobs that poor people need, but that point undermines his worldview. You can’t logically claim that anyone who tries hard enough can find a job at $7.25, but that job availability suddenly becomes a problem at $9. The overall ability of the economy to create enough jobs either is a problem or it isn’t. You can’t assert it in some situations and ignore it in others.

 

Republican Judges Take Another Shot at ObamaCare

If ObamaCare were a TV series, every episode would be a cliffhanger.


Like a superhero’s girlfriend or a soap opera heroine, ObamaCare always seems to be in danger. It survived several apparently fatal crises on its way to passing Congress. After it passed, the new Republican House was going to repeal it or defund it. Then conservative lawyers created a completely new theory of the Commerce Clause to make it unconstitutional — and got five Supreme Court justices to agree with them — only to see Chief Justice Roberts rescue the law at the last minute by re-interpreting a penalty as a tax. (But the Court did allow states to opt out of Medicaid expansion, keeping millions of the working poor from getting health care, and probably killing thousands of them.) Then Ted Cruz was going to lead a campaign to force President Obama to accept repeal by shutting down the government and threatening to wreck the world economy.

After the program started to get rolling, the web site was never going to work, and people were never going to sign up, and the people who did sign up would be old and sick, and the rates were going to astronomical, and more people would lose coverage than gain it, and it just was all going to collapse of its own weight. Democrats would kill ObamaCare themselves, just to keep the disaster from destroying their party forever.

If ObamaCare were a TV series, every episode would be a cliffhanger.

But like TV cliffhangers, the disaster never really arrives. ObamaCare shows every sign of working more-or-less the way it was designed to, except for those minimum-wage folks in Texas (and other red states) who can’t get Medicaid.

But it’s still not out of the woods. Tuesday, two Bush-appointed judges on the D. C. Court of Appeals lobbed the latest bomb in ObamaCare’s direction: The way the law is worded, people in 36 states are ineligible for the subsidies that put the “affordable” in the Affordable Care Act. In an opinion piece at Fox News, Betsy McCaughey — the woman who created the “death panels” hoax that Sarah Palin made famous — announced that the ruling had sent ObamaCare into a “death spiral”.

I’ll get into the details of this in a minute, but first let me spoil the suspense: I don’t think this bullet is going to kill ObamaCare either. Not because the legal ruling is bogus and partisan — it is, but the Supreme Court has five conservative judges who might be happy to issue another bogus partisan ruling against ObamaCare — but because the stock price of health insurance companies didn’t budge when the D. C. Appeals Court’s surprise came out.

Politicians and pundits might predict all kinds of things, and who knows whether they really believe any of it. But what people do with their money reflects what they genuinely expect.

ObamaCare is great for insurance companies. (That’s the biggest liberal complaint about it.) And as the good news about ObamaCare has rolled in, health insurance stocks have had a nice run. United Health, for example, started 2014 at $71.65 and climbed steadily upward to open Monday at $84.68. Back on Inauguration Day, 2009, you could have bought a share for $24.16.

So the beginning of an ObamaCare death spiral would be bad for insurance companies and should have sent investors heading for the exits. (Take your profits. Sell, sell, sell!) But UNH closed Tuesday at $86.05, and closed Friday right back where it opened Monday, at $84.68. The whole week was a total non-event for UNH.

Just about by definition, investors are people with money. And people with money tend to be Republicans, who are more likely than most to live inside the conservative bubble and take bad news about ObamaCare seriously. But they’re not taking this threat seriously. So I’m not either.

Now let’s get down to the legal arguments. Fortunately, we get to look at the same facts from two different angles, because on the same day the Fourth Circuit Court of Appeals ruled the opposite way on a virtually identical case. The D.C. court’s judges vote 2-1 and the Fourth Circuit 3-0, so the net vote was 4 judges to 2 in favor of the ObamaCare subsidies.

The issue. The original plan in the Affordable Care Act was for each state to set up its own health-insurance exchange, like kynect in Kentucky or Covered California. But just in case one or two states didn’t, the law empowered the federal government to set up an exchange for a state.

At the time, I don’t think anyone in the administration expected the level of obstruction the program has faced. Common sense would tell you that a state government would jump at the chance to tailor the program the way it wants rather than have the feds make all the decisions. But these are not sensible times, so there are 36 states with federally-run exchanges.

The basic logic of ACA is achieve near-universal healthcare coverage by

  • expanding Medicaid to cover the working poor.
  • subsidizing insurance premiums via a tax credit for those somewhat better off.
  • using a tax/penalty to push everyone who isn’t already covered by either an employer or the government to buy private insurance on his/her state exchange.

But the line in the law that authorized the tax credits was worded so that they applied to taxpayers who are

covered by a qualified health plan … that was enrolled in through an Exchange established by the State under section 1311

So if you interpret that line in a context-free way, you might think that people in those 36 states with federally-created exchanges don’t get the tax credits. That completely screws up the logic of the plan, and absolutely no one at the time the law was passed thought it would work that way. (In particular, I don’t believe this point ever came up when states were debating whether or not to establish exchanges.) But words mean what they mean, right?

How this would resolve in a sane world. This is what is known as a drafting error, and they happen from time to time. If they aren’t too serious, everybody ignores them. (If a law would happen to mis-spell Connecticut, judges wouldn’t decide that Congress intended to refer to some previously unknown state.) But if the error looks like it will cause some real issue, Congress just fixes it. Or at least it used to. Former Bush Treasury official Phillip Swagel was focused on different errors last fall when he wrote:

It should be possible for the larger (and incredibly heated) debate over the merits of Obamacare to proceed even while specific flaws in the legislation are addressed

He gave the example of a 2005 transportation bill that contained earmarks for projects that no longer existed. A subsequent bill fixed this. But Swagel makes a major understatement:

Legislation to make “technical corrections” has become relatively infrequent as Congressional partisanship has mounted over the decades

These kinds of fixes didn’t used to be partisan issues. It didn’t matter whether or not you supported the original law, you wanted mistakes fixed. But not any more. Now, the worse a law works, the better for the party that opposed it to begin with. Bad for the country, but good for the party. And the party is what’s really important.

How the IRS tried to resolve it. Implementing tax credits falls to the IRS, which now had to implement something that didn’t quite make sense. They did the sensible thing and interpreted the law so that the federal government would be acting in the role of the state when it established a state exchange. So in practice “an Exchange established by the State” meant an exchange established by the state or by the federal government acting for the State. It explained:

[T]he relevant legislative history does not demonstrate that Congress intended to limit the premium tax credit to State Exchanges. Accordingly, the final regulations maintain the rule in the proposed regulations [i.e., that policies bought on federally-established exchanges still qualify for tax credits] because it is consistent with the language, purpose, and structure of section 36B and the Affordable Care Act as a whole.

How this became a court case. Courts can’t just rule on whatever issues they feel like addressing. Somebody has to bring them a case, and the person who brings it has to have “standing”. In other words, the person who sues has to present a real injury that was caused by whoever is being sued and that a court has the power to remedy. (So “My girl friend doesn’t love me any more” might be a real injury caused by a specific woman, but what do you expect the court to do about it?)

Finding a plaintiff with standing took some doing in this case, because who exactly is being hurt if people get tax credits to help pay for their health insurance? (You might think, “the taxpayers”, but those kinds of suits are always thrown out of court. An injury needs to be more specific than just your tax money being spent in some way you find inappropriate.) Eventually, ObamaCare opponents came up with this plan: The individual mandate only applies to people who can find health insurance for less than 8% of their income. So if a guy is just poor enough that unsubsidized insurance would be more than 8% of his income, but subsidized insurance would be less than 8%, then the subsidy is what makes the individual mandate apply to him. That’s his injury.

The government argued that giving people a good deal on health insurance doesn’t really injure them, but neither court bought it. Both the D.C. Circuit and the Fourth Circuit said the suits had standing. Politically, though, it’s still a point worth making: This was the kind of legal contortion conservatives had to come up with to file this suit.

What the four judges said. Naturally, there is precedent for this kind of thing. I’ll let Judge Robert Gregory of the Fourth Circuit explain:

Because this case concerns a challenge to an agency’s construction of a statute, we apply the familiar two-step analytic framework set forth in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). At Chevron’s first step, a court looks to the “plain meaning” of the statute to determine if the regulation responds to it. If it does, that is the end of the inquiry and the regulation stands. However, if the statute is susceptible to multiple interpretations, the court then moves to Chevron’s second step and defers to the agency’s interpretation so long as it is based on a permissible construction of the statute.

Notice where the burden of proof lies: In order to win their case, the plaintiffs have to convince the court that the statute is unambiguous and that the IRS is just making stuff up to interpret it any other way. (Gregory, BTW, is the only judge of the six to rule opposite to the party that appointed him: Though he was originally a temporary recess appointment by Bill Clinton, he owes his permanent appointment to George W. Bush.)

The argument over what Congress intended was wide-ranging, covering how similar words are used in other parts of the law, how this provision fits or doesn’t fit with other provisions, how it works in the overall structure of ObamaCare, and the “legislative history”, i.e., what the Congresspeople were actually talking about when they passed it.

Unfortunately, Congress never argued about whether or not the subsidies should apply on federal exchanges — probably because no one involved ever conceived that they wouldn’t; it just wasn’t an issue. But that means there is no clear legislative history. It’s like that down the line: Judge Gregory allows that the IRS interpretation seems more likely to him, but that there’s not a smoking gun either way. But …

when that is so, Chevron dictates that a court defer to the agency’s choice.

and so the subsidies stand.

Senior Judge Andre Davis was even less persuaded by the plaintiffs:

They have a clear choice, one afforded by the admittedly less-than-perfect representative process ordained by our constitutional structure: they can either pay the relatively minimal amounts needed to obtain health care insurance as provided by the Act, or they can refuse to pay and run the risk of incurring a tiny tax penalty. What they may not do is rely on our help to deny to millions of Americans desperately-needed health insurance through a tortured, nonsensical construction of a federal statute whose manifest purpose, as revealed by the wholeness and coherence of its text and structure, could not be more clear.

What the two judges said. Judge Thomas Griffith of the D. C. Circuit also cited the Chevron case, but placed the bar of interpretation much higher:

We therefore give the absurdity principle a narrow domain, insisting that a given construction cross a “high threshold” of unreasonableness before we conclude that a statute does not mean what it says. Cook, 594 F.3d at 891. A provision thus “may seem odd” without being “absurd,” and in such instances “it is up to Congress rather than the courts to fix it,” even if it “may have been an unintentional drafting gap.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 565 (2005)

Griffith goes on to examine all the places in the law where differentiating between the state-established and federal-established exchanges might seem odd, and is able to find possible (though occasionally convoluted) meanings that Congress might have intended.

Senior Judge Raymond Randolph agreed, but the dissent by Senior Judge Harry Edwards is blunt:

This case is about Appellants’ not-so-veiled attempt to gut the Patient Protection and Affordable Care Act (“ACA”). … The majority opinion ignores the obvious ambiguity in the statute and claims to rest on plain meaning where there is none to be found. In so doing, the majority misapplies the applicable standard of review, refuses to give deference to the IRS’s and HHS’s permissible constructions of the ACA, and issues a judgment that portends disastrous consequences. … Simply put, §36B(b) interpreted as Appellants urge would function as a poison pill to the insurance markets in the States that did not elect to create their own Exchanges. This surely is not what Congress intended.

What happens next? The next step is to appeal the D. C. court’s ruling to the full court, rather than the three-judge panel. Since this is a partisan ruling that only a partisan Republican judge will uphold, the full court will reverse it.

One of the Republican moves that pushed the Senate’s Democratic majority to eliminate the filibuster on judicial nominations (other than the Supreme Court) was the blanket filibuster on any judge President Obama might appoint to the D. C. circuit. At the time, the court had a 4-4 balance of Republican and Democratic appointees and three vacancies. Republicans charged that filling the vacancies (as the Constitution instructs the President to do) would be “court packing“. After the filibuster change, Obama’s nominees were approved, so the full court has a 7-4 majority of Democratic appointees.

If the two appeals courts remained in disagreement, the case would have to go the Supreme Court (because you can’t have a law mean one thing in one circuit and another somewhere else). But if the full D. C. court reverses its three-judge panel’s ruling, the Supremes could decide whether or not they want to get involved.

If they do, I don’t think they’ll overturn the subsidies. The Roberts Court practices conservative activism, but prefers to do it by stealth. (That’s why Roberts nixed the first attempt to skewer ObamaCare in the courts, IMHO.) This would be a nakedly political, we’re-sticking-it-to-the-Democrats ruling. WaPo’s Paul Waldman summarizes:

Now pause for a moment and consider what it is Republicans are asking the courts to do here. They want millions of Americans to lose the subsidies they got this year, in many if not most cases making health insurance completely unaffordable for them, and their justification is this: We found a mistake in the law, so you people are screwed.

I can imagine Thomas, Alito, and Scalia going that way, but Roberts and Kennedy will be reluctant. ObamaCare will escape this cliff, and survive until the next episode.

Gaza, as seen from a distance

Last week I punted on the Israel/Gaza situation, because what I was reading contained more noise and spin than information and insight, and I didn’t want to make that situation worse. This week I can do a little better.

Immediate causes. ThinkProgress provides a timeline tracing the back-and-forth escalation that began with the disappearance (on June 12) of three Israeli teens who later (June 30) were found dead. Israel blamed Hamas, whose leaders didn’t claim responsibility (as they usually do; Hamas’ leadership constantly battles the perception that it’s toothless against Israel), and began arresting Hamas leaders and their associates in the West Bank, including some released in a previous deal. Hamas saw the kidnapping as a pretext for Israel to renege on that deal, and fired (mostly ineffective) rockets from Gaza in protest.

From there things escalated as they so often do. Israeli troops entered Gaza Thursday night.

A different angle on the immediate causes of the conflict comes from Nathan Thrall’s op-ed in the NYT. Since 2007, the limited autonomy that Israel allows Palestinians has been split between Hamas in Gaza and Fatah in the West Bank. But Hamas has fallen on hard times recently because of the rapidly diminishing value of its alliances. You can think of Hamas as the Palestinian franchise of the Muslim Brotherhood. The Egyptian franchise controlled that country for about a year between the fall of the Mubarak government in 2011 and the subsequent military coup, but is now struggling to survive a major crackdown. The Assad regime in Syria was another Hamas ally, but it is now focused on its own problems. Iran’s aid has also diminished.

So in June Hamas was driven to reconcile with Fatah, more or less turning Gaza over to the Palestinian Authority in the West Bank, but leaving its 43,000 civil servants in place. Currently, none of those people is being paid, mostly for reasons having to do with Israel and the United States. (Qatar is willing to pay them until something else can be worked out, but that solution is being blocked.) The other thing Hamas hoped to accomplish by getting itself out of the governance business was that Egypt might re-open its border with Gaza, which would be a big deal in the Gazan economy. That’s not happening either.

So Hamas wants:

  • Israeli troops out of Gaza.
  • End the recent Israeli crackdown on Hamas’ people and release the ones who had nothing to do with the kidnapping.
  • Get the Gaza civil servants paid somehow.
  • Open Gaza’s Egyptian border.

Israel wants Hamas to stop firing rockets into Israel and to stop kidnapping/murder operations in Israel. (The rockets don’t seem to be doing a whole lot of harm, but it’s the principle of the thing.) I’m not sure what Egypt’s military government wants.

This is where the topsy-turvy logic of the situation comes into play: A ceasefire doesn’t get Hamas most of what it wants — which is why it rejected an Egyptian proposal — but all Hamas has to threaten Israel with at the moment (beyond those pinprick rockets) is bad publicity. The more Gazan civilians die, the more support builds for boycotts of Israel and divestment from companies that do business with Israel. It’s like: “If you don’t give us what we want, you’ll have to kill more of us, and then you’ll be sorry.”

In the long run, how does this end? Whenever the Israel/Palestine conflict flares up, it’s easy to get lost in arguments about the most recent actions of each side; whether what one side just did justifies what the other just did, and so forth. I think it’s important to keep pulling back to the big question: How does this conflict end? I can only see four outcomes:

  1. Two states. Some border line is agreed upon between Israel and Palestine, and they become two independent countries with full sovereignty.
  2. One state with democracy. The Palestinians are made full citizens of a unified state. Given demographic trends, they are eventually the majority.
  3. It never ends. The Palestinians remain a subject population ruled or otherwise dominated by Israel. Israelis continue to be targets of terrorist resistance.
  4. Ethnic cleansing. Israel kills or expels large numbers of Palestinians (or otherwise induces them to emigrate), leaving behind a Greater Israel with a clear and sustainable Jewish majority.

It’s important to realize that anyone who finds both (1) and (2) unacceptable is de facto advocating (3) or (4), because those are the only choices.

Some Israelis seem to believe in an outcome (3A), in which the Israeli occupation continues, but the Palestinians are so beaten down that they submit peacefully. I’m pretty sure that’s a fantasy. I don’t know what level of oppression would be necessary to make (3A) happen (if it’s possible at all), but everything that the Russians have been willing to unleash on the Chechens has been insufficient. Israelis need to take that example seriously: They’d need a strongman stronger than Putin to make (3A) work.

Another version of (3A) is: Palestinians end all resistance for a long enough time that Israelis feel safe, and then Israel will consider what rights the Palestinians should have. That’s another fantasy. Nothing in the history of Israel’s dealings with the Palestinians entitles them to that level of trust. In fact, I don’t trust the Israelis that far, and I’ve got no skin in the game at all. I believe that once the terrorist threat subsided, Israel would forget about the Palestinians until the violence restarted, and then claim all over again that no deal can be reached until the violence stops.

So I repeat: The four outcomes listed above are the only ones.

With that in mind, it’s discouraging to read the recent remarks by Prime Minister Netanyahu.

I think the Israeli people understand now what I always say: that there cannot be a situation, under any agreement, in which we relinquish security control of the territory west of the River Jordan.

That eliminates (1). (2) is obviously unthinkable to anyone who values Israel’s identity as a Jewish state. So this goes on forever or there’s ethnic cleansing.

Moral calculus. A lot of the media back-and-forth concerns the morality of the two sides. The argument comes down to: Hamas targets civilians while Israel takes steps to avoid killing civilians, but Israel’s weapons are so much more effective that they end up killing far more civilians than Hamas does, on the order of hundreds to one.

Another reason for the disparity is that Israel prioritizes civil defense, while Hamas puts military targets in civilian areas and doesn’t even build bomb shelters. As Netanyahu put it on Fox News:

Here’s the difference between us. We are using missile defense to protect our civilians, and they’re using their civilians to protect their missiles.

Charles Krauthammer quoted that line in a WaPo column called “Moral Clarity in Gaza“.

Personally, I see this less as a moral difference between the two sides than a difference in their tactical situations. Gaza has no way to stop the Israeli attack by force. Israel will stop when the number of dead civilians creates enough international pressure. So Gazan civil defense would just enable the Israeli attacks to go on longer, with the same eventual body count. What’s Hamas’ motivation to go that route?

And that brings me to a moral principle that I think deserves more attention: Asymmetric warfare is morally asymmetric. In other words: If you are so much more powerful than your adversaries that your decisions create the gameboard and dictate the moves available to the players, then your actions have to be judged differently. You bear responsibility for the shape of the game itself, and not just for the moves you make.

Friendly frustration. Even pro-Israel commentators at some level realize the tactical and strategic realities. Krauthammer writes:

[Hamas rocket fire] makes no sense. Unless you understand, as Tuesday’s Post editorial explained, that the whole point is to draw Israeli counterfire.

Taken for granted here is that the Israelis are helpless in the face of this masterful strategy: They must fire back, even if that’s what Hamas wants. Perversely, Krauthammer presents Hamas as the player powerful enough to have choices, while Israel is driven by necessity.

Friends of Israel more in touch with reality are frustrated by the Netanyahu government’s lack of vision. Fred Kaplan describes the short-term logic of invading Gaza, but then laments:

The Israeli government seems to have forgotten how to think strategically; at the very least, they have a self-destructive tendency to overplay their hands. … Until this conflict with Gaza, Israel had been enjoying a level of security it hadn’t seen in many years. Terrorist attacks from the West Bank are all but nonexistent. Its enemies to the north—Syria, Hezbollah, and a gaggle of Islamist terrorist movements—are embroiled in their own wars with one another. Egypt is once again in the firm grip of a military government committed to putting down the Muslim Brotherhood and its allies (including Hamas). Iran has—at least for now—frozen its nuclear program, as a result of negotiations led by the Obama administration. … Instead of capitalizing on Israel’s unusually strong strategic position, Netanyahu risks squandering it—destroying what little support he has in the West and making it hard for Arab governments that share his interests (Egypt, Jordan, and, even now, the Palestinian Authority) to sustain their tacit alliances.

At The Jewish Daily Forward, J. J. Goldberg marked yesterday as the moment when the tide turned against Israel. After initially receiving a certain amount of international support — or at least seeing Hamas condemned in equal-or-worse terms

What happened next was something that’s happened over and over in Israel’s military operations in recent years: The government overestimated the depth of its international support and decided to broaden the scope of the operation. … The sympathy Israel won because of the kidnapping and shelling is melting before our eyes. Until the weekend, protests of Israel’s actions were limited to street demonstrations by leftists and Muslims in various cities around the world, with almost no governmental backing. Now governments are starting to switch sides. … Many Israelis will argue in the next few days that the mounting international criticism is hypocritical, that Israel has a right to defend itself and that the fast growing civilian toll is entirely Hamas’ fault. Whatever the merits of the arguments, they have lost their audience.

Meta-discussion. In some ways as interesting as the discussion itself is the meta-discussion about how to discuss such a divisive topic, where the sides are dug in so deeply and so many of the arguments rehearsed and ready to pull off the shelf. Also at The Jewish Daily Forward, Jay Michelson posts “5 Ways To Turn Down the Social Media Flame“. He’s basically rediscovering the three principles of Quaker discussions: Is it true? Is it kind? Is it necessary? And he asks:

If a bunch of privileged Americans with so little at personal stake can’t internalize the importance of multiple narratives, how do we expect Israelis and Palestinians — both of whom are living under threat of imminent death, while I sit behind a screen in Brooklyn — to do better?

And the blog This is Not Jewish gives instructions on “How to Criticize Israel Without Being Anti-Semitic“. Knowing how off-base the line “Democrats think anybody who criticizes Obama is racist” is, I was ready to be skeptical of “Jews think anybody who criticizes Israel is anti-Semitic.” In each case, it’s easy to be a lot more racially or ethnically offensive than you realize, and so get hit with criticism that you deserve, but think you don’t deserve. (“What I meant …” is not a defense. And anything that includes the phrase “if I offended anybody” is not an apology.)

Many of the tips are common sense, if you stop to think about it (i.e., don’t appeal to stereotypes). But I had never made the connection between labeling Israel-supporting Jews as “bloodthirsty” and the pogrom-causing blood libel, in which Jews are accused of literally drinking the blood of sacrificed Christian children. I don’t believe I’ve ever violated that rule, but duh, why didn’t I see that? Also be careful about equating Jews, Israelis, and Zionists, who are three different groups of people.

And finally, it’s crazy to hold your local Jewish community responsible for whatever Israel might be doing. (Just like it was crazy to hold your local Muslims responsible for 9-11.) As John Lloyd points out:

There’s a very large, and often very rich, Russian community in London – and there are no attacks on Russians or their mansions, restaurants or churches because of the Russian seizure of Crimea and sponsorship of uprisings in eastern Ukraine.

All four of my grandparents were German-Americans during the World Wars. None of that was our fault, and I’m willing to let Americans of all other ethnicities make similar claims.

There’s Something About Todd

I strongly advise you not to read this post. Your browser has a Back button. Use it.


I don’t know what it is about Todd Akin.

The whole point of the Weekly Sift is to filter the junk and hype out of the news so that you only read stuff that is worth your attention. But success in that venture depends on my ability to leave something alone once I’ve determined that it’s not worth either your time or mine.

Todd Akin is not worth your time or mine. So you shouldn’t read this post and I certainly shouldn’t be writing it. And yet, I can’t seem to ignore him. I suppose it’s that infuriating combination of ignorance, self-righteousness, and self-assurance. So many intelligent, thoughtful people could be interviewed on TV, but aren’t. And yet, there’s Todd Akin, displayed in my living room! And why am I writing about him? I’m just making it worse.

But I can’t stop myself, so let’s get this over with: In interviews promoting his new book — which I refuse to link to; I still have that much control — he says he knows what he did wrong in his “legitimate rape” interview: It was just a bad choice of words. He should have said “legitimate case of rape” instead, because then the liberal media couldn’t have slandered him by making it sound like he thought a rape could be legitimate.

Let’s plug that into the transcript and see how it plays:

CHARLES JACO: So if an abortion can be considered in the case of, say, a tubal pregnancy or something like that, what about in the case of rape? Should it be legal or not?

REP. TODD AKIN: Well, you know, people always want to try and make that as one of those things: “Well, how do you—how do you slice this particularly tough sort of ethical question?” It seems to me, first of all, from what I understand from doctors, that’s really rare. If it’s a legitimate [case of] rape, the female body has ways to try to shut that whole thing down. But let’s assume that maybe that didn’t work or something. You know, I think there should be some punishment, but the punishment ought to be on the rapist and not attacking the child.

Well, the insensitivity is unchanged: Raped women aren’t real people who deserve our compassion, they’re just a “tough sort of ethical question” that tricky interviewers use to try to trip Akin up — like “Can God make a rock so big He can’t lift it?” or something. And after this tough question gets sorted out by the higher mind, it really just comes down to who to punish — the rapist or the fetus. The woman is a bystander.

The junk science about female physiology is still there; two years later, and he still hasn’t educated himself. And he’s still implying that only violent rape really counts. (What about roofies? Even in Akin’s alternate universe, would an unconscious woman’s body “shut that whole thing down”?)

Most importantly, he’s still saying that women who claim they got pregnant from a rape are probably lying, because “that’s really rare” in “a legitimate [case of] rape”.

So no, I don’t think he fixed anything.

Here’s what’s reprehensible about Todd Akin, and it’s got nothing to do with his choice of words: Even given two years to think about it, he still believes in a legal system in which rape is a viable male reproductive strategy. (They’ll put you in jail if they catch you — and if the woman can prove she didn’t consent — but the law will force your victims to bear your children, so your genes will live on.) He believes in that system so strongly that he’s willing to seek out junk science to justify it.

I’m going to stop writing now. To everyone who made it this far: I’m sorry. I really am. Try to do something more worthwhile with the rest of your day.

Boehner’s Lawsuit and Palin’s “25 Impeachable Offenses”

I could almost feel sorry for John Boehner, if he hadn’t played such a big role in creating his own problems. As Speaker of the House, he is simultaneously

  • one of the most powerful figures in the United States government, answerable to History and to Peter Parker’s uncle: “With great power comes great responsibility.”
  • leader of a majority caucus that wants the United States to become ungovernable, believing that the American people will blame the ensuing chaos on a president the caucus hates.
  • responsible for keeping that caucus in the majority, while knowing that they are delusional and the American people will blame them if they cause disasters too obviously.

To succeed, he needs his caucus to stay in the majority, continue as leader of that caucus, and not sink the country. It’s an impossible job, and it can’t end well for him. But for some reason he loves it and wants to hang on to it. So he is constantly running out in front of the mob so that he can claim to be leading it, hoping that he can divert it from its most destructive (and self-destructive) goals.

That’s why he has to pretend to believe in hare-brained schemes like the government shutdown, so that he’ll be in a position raise the debt ceiling at the last minute and avoid an international economic disaster. He has to tolerate obstruction of government programs the country wants — the Highway Trust Fund is about to run out of money, a threat that combines job destruction with potholes and unsafe bridges; tens of thousands of refugee kids are piling up at the border unprocessed, the Senate worked out a bipartisan immigration compromise Boehner can’t even bring to a vote; and couldn’t the minimum wage go up just a little? — so that he can maybe save a few of them eventually.

The lawsuit. And now he has to sue the President, because otherwise the lunatics he leads will start an impeachment process that will probably be even less popular and less grounded in reality than their last presidential impeachment. They’ll do it right before an election, focusing the public’s attention on what a bad idea it was to give the Republican Party any role in governing the country.

He has to sue the President, even though Obama is begging him to do it. Obama is going all over the country, cracking jokes at Boehner’s expense. He just went to Texas, and said:

You hear some of them … “Sue him! Impeach him!” Really? Really? For what? You’re going to sue me for doing my job?”

Obama loved it. The crowd loved it. It looked great on TV. Every presidential action the House Republicans want to sue or impeach Obama for points to an issue where the real problem is inaction by the Republican House. And Obama’s not up for re-election; they are. No wonder he loves to talk about it.

Now, I don’t know which things they find most offensive — me helping to create jobs, or me raising wages, or me easing the student loan burdens, or me making sure women can find out whether they’re getting paid the same as men for doing the same job. I don’t know which of these actions really bug them.

But Boehner has to do it, because this is where the rhetoric that bounces around in the right-wing echo chamber leads. For five years, Republicans have been telling their base that Obama is “lawless” and his rule is “tyranny“. He “ignores the Constitution” and “makes up his own laws“.

The importance of vagueness. Like most extreme rhetoric, this talk works best when it’s vague, a lesson Republicans keep learning (and forgetting) when it comes to spending: Railing about “government waste” and promising to cut “trillions” from the budget are great applause lines. But when you have to make those cuts specific, hungry people don’t eat, old people pay more for medical care, construction workers lose their jobs, contaminated food gets past the inspectors … and it all becomes a lot less popular. That’s because the notion that we spend trillions building bridges to nowhere, feeding able-bodied people who could easily get jobs, and dishing out foreign aid to countries that hate us is a delusion. If you take big whacks at the federal budget, you’re going to end up making life considerably harder for people a lot like yourself.

But Boehner can’t stay vague forever. When Republican leaders encourage delusional rhetoric about the horrible things Obama and his government have done, eventually the people who believe them are going to ask what they’re doing about it. And the true answer, “I’m raising a bunch of money from suckers like you” is not going to cut it. Sadly, though, actually doing something will force Obama’s critics to be embarrassingly specific. They can’t just sue or impeach Obama for “Benghazi” or “making a mockery of the Constitution”; they’ll have to point to actual events that break actual laws. And then there will be a public hearing where they’ll be expected to offer evidence that these events happened somewhere other than in their fevered imaginations.

What’s worse, everybody will be watching, not just the Republican base. It has all the makings of an embarrassing disaster.

Boehner, naturally, wants to put that off as long as possible. That’s why he floated the lawsuit idea and let it hang in the air for two weeks before saying what it would be about. It’s like walking into a lawyer’s office and announcing, “I’m going to sue that guy!” and when the lawyer asks “For what?” you answer “Give me two weeks and I’ll think of something.”

Eventually he had to announce something, so Thursday he did (though there’s still no text of the proposed complaint). The draft resolution authorizing the suit says

[T]he Speaker may initiate or intervene in one or more civil actions on behalf of the House of Representatives … with respect to implementation of (including a failure to implement) any provision of the Patient Protection and Affordable Care Act

That’s still pretty vague, but in a statement Boehner fleshed it out a little:

In 2013, the president changed the health care law without a vote of Congress, effectively creating his own law by literally waiving the employer mandate and the penalties for failing to comply with it.

So that’s the President’s foremost tyrannical act: He delayed implementation of the employer mandate, one of the provisions of the ACA Republicans hate most. The New Republic‘s Brian Beutler described Boehner’s announcement as “a faceplant”:

Today’s story is that the GOP has spent weeks and weeks accusing Obama of unbridled lawlessness, when they didn’t really have the goods.

MaddowBlog‘s Steve Benen goes into more detail: Almost certainly, a federal judge will rule that the House doesn’t have standing to sue. (They’re not the ones being hurt, if anybody is. And if they’re serious, they have the impeachment power and don’t need the courts.) If the merits of the suit are heard and Boehner would happen to win, “the result might very well be the implementation of a policy Republicans don’t like”, unless the case lasted long enough that it had been implemented by then anyway. And implementation would be good for House Republicans because …

Remember, for GOP lawmakers, effective public policy wasn’t part of the equation. The GOP’s priority was failure – they wanted the system not to work. If the employer mandate would have made life difficult for the private sector, then Republicans desperately wanted it to happen so that it would hurt the economy, anger the public, and make the ACA more unpopular, causing a political nightmare for the president.

It’s part of that break-the-country-so-the-president-gets-blamed strategy, which worked so well during the government shutdown. And it makes such a good talking point: I’m suing to force the President to do something I think is bad for the country, because the way that he did what I think is good for the country was tyrannical. Voters love inside-the-Beltway process arguments like that.

Impeachment. But at least Boehner is heading off talk about impeachment. Or is he? Tuesday, Sarah Palin went to the heart of the echo chamber, Breitbart.com, and wrote “It’s time to impeach President Obama“. Impeach him because “Opening our borders to a flood of illegal immigrants is deliberate.” (Picture turning that conspiracy theory into an Article of Impeachment and offering evidence to support it on national TV.) But that’s not all Palin has:

President Obama’s rewarding of lawlessness, including his own, is the foundational problem here. It’s not going to get better, and in fact irreparable harm can be done in this lame-duck term as he continues to make up his own laws as he goes along, and, mark my words, will next meddle in the U.S. Court System with appointments that will forever change the basic interpretation of our Constitution’s role in protecting our rights.

Unless impeached immediately, Obama will “meddle in the U. S. Court System” by doing his job under Article II, Section 2 of the Constitution to “appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for”. No wonder she concludes:

The many impeachable offenses of Barack Obama can no longer be ignored. If after all this he’s not impeachable, then no one is.

Thursday, she elaborated on Sean Hannity’s show and wrote a second column for Fox.

A little less talk, a lot more action. When we see even GOP lawmakers who are recognizing and proclaiming Obama’s violation of the Constitution and then ignoring that Constitution and the power they have to impeach — it gets kind of frustrating for the American people.

Or at least for the segment of the American people who aren’t in on the scam and take yakkers like Palin seriously. But let’s talk more about impeachable offenses:

He has allowed his subordinates and he himself to fraud the American people on these programs, these policies, that he has promised will work or not impact debt or deficit. These have been lies by our president. Yes, those are impeachable offenses.

Remember, the Constitution defines impeachable offenses as “treason, bribery, or other high crimes and misdemeanors”, not “being too optimistic about your proposals”. But don’t worry, Palin has consulted “experts”.

Experts, attorneys, they have a list of at least 25 impeachable offenses.

Now we’re getting somewhere. Surely, every web site that mentions Palin’s call for impeachment (especially her own web site or her Fox or Breitbart columns) will link to that list so we can examine it. Because nobody would just throw a number out there to make herself sound smart, or to create the vague idea that there are specifics somewhere, even though I don’t have time to go into them right now. Otherwise, the 25 impeachable offenses would be like Senator Joe McCarthy’s famous list of Communists in the State Department, which started out at 205 and at various other times was 57 or 81 or ten names long. As history.com reports: “In fact, McCarthy never produced any solid evidence that there was even one communist in the State Department.”

25 “impeachable” offenses. It wasn’t on SarahPAC.com or Foxsnews.com or any other obvious place, but eventually I found the list. It seems to come from a report by the Committee for Justice, which in turn relies on a memo written by nine Republican state attorneys general in 2010. The CFJ was originally an astroturf organization created to support President Bush’s most conservative judicial nominees, though apparently it has found new justifications for its existence over the last five years.

I can see why nobody links to the list: It’s rhetoric, not law, and many of its points depend on “facts” that only exist in the conservative echo chamber.* Like #1:

Obama Administration uses IRS to target conservative, Christian and pro-Israel organizations, donors, and citizens.

Darrell Issa has been investigating this to death for more than a year and so far has come up with exactly nothing: no conservative groups were harmed, no IRS political motives have been found, and no communication channel with the White House has been identified. #5 is about Obama’s

21 separate Executive Orders that attack and undermine your Second Amendment right to keep and bear arms.

You can contemplate these nefarious orders in all their bureaucratic horror here. In #7:

Obama forced ObamaCare on an unwilling public through bribery and lying about its cost.

and also by passing it through the independently elected Congress, which did its own cost estimates. And apparently no one has ever before added a special provision to a bill to get a key senator’s vote. (The allegedly suspect provision didn’t survive into the final bill.)

#8 goes all the way back to Operation Fast & Furious.

Investigators suspect that Fast & Furious was an effort by the Obama Administration to discredit lawful gun ownership in America by purposefully creating gun crimes, thus inducing public outcry for gun control.

“Investigators” like Rush Limbaugh and the NRA, but nobody remotely knowledgeable or reputable. And notice, they don’t even claim to have evidence, they just “suspect”. Congress should impeach Obama because the NRA suspects he did something wrong.

It goes on like that. These are the “expert” specifics behind Palin’s vague impeachment rhetoric. No wonder the Republican chair of the Judiciary Committee said this Sunday:

The Constitution is very clear as to what constitutes grounds for impeachment of the president of the United States. He has not committed the kind of criminal acts that call for that.

Other lists of offenses. South Dakota’s GOP convention passed an impeachment resolution that listed other things, like Obama trading Guantanamo detainees to get Sergeant Bergdahl back from the Taliban or allowing the EPA regulating carbon emissions as the Supreme Court has ruled that the Clean Air Act instructs it to do.

Ted Cruz has put out his own list. He doesn’t mention impeachment, but simply points to “abuses of power”. Cruz’ list has more than 40 entries of similar quality to other lists. For example, President Obama has

Extended federal marriage benefits by recognizing, under federal law, same-sex marriages created in a state that allows same-sex marriage even if the couple is living in a state that doesn’t recognize same-sex marriage.

In other words, Obama is obeying the Constitution’s requirement to give full faith and credit to the”public acts, records, and judicial proceedings” of the states, even ones that allow same-sex marriage. He

Ordered Boeing to fire 1,000 employees in South Carolina and shut down a new factory because it was non-union.

Actually the NLRB did that — because Boeing was breaking the labor laws the NLRB is supposed to enforce — as Cruz’ own reference says. Obama appoints members to the Board, but doesn’t control it.

There’s a lot of stuff like that. It will stir your blood if you’re a Fox-News-watching conservative. But the two-thirds of the country that doesn’t identify as conservative is going to wonder what the fuss is about and why Congress is doing this rather than raising the minimum wage or creating jobs or passing immigration reform or doing something about those refugee kids on our doorstep.

President Obama would love to see those baseless impeachment hearings happen before the fall election. John Boehner would hate it.


* I sympathize with one point: #21, the “kill list” of American citizens who can be targeted by drones or military raids. It actually exists and violates those citizens’ due process rights. But impeachment is a premature remedy, because Congress has done absolutely nothing to protest — and it probably can’t, given that the kill list is one of those War on Terror programs many Republicans like. Impeachment shouldn’t be Congress’ first option; first they could try a joint resolution denouncing the kill list, or a law specifically making it illegal. If they can’t pass that much, they’ve got no business proceeding to impeachment.

 

 

How Threatening is the Hobby Lobby Decision?

The Court’s five male Catholic justices outvoted its three Jews and lone female Catholic. Is that a problem?


It is easy to be confused by the commentary on the Supreme Court’s 5-4 ruling that Hobby Lobby and Conestoga are exempt from the contraception mandate of the Affordable Care Act. The ruling, say some, is narrow; it will affect only a handful of business-owners in a more-or-less identical situation, and their female workers’ coverage will not suffer. No, say others, the consequences of the ruling are sweeping; it puts all workers’ health coverage at the mercy of whatever religions their employers’ corporations decide to adopt, and could have further consequences unrelated to healthcare.

Each of those views is right in its way. Justice Alito’s majority opinion emphasizes its limitations; cases that seem analogous cases, he says several times, may turn out differently. An important point in Alito’s argument is that the government might easily achieve its purpose — covering contraceptive care for women whose employers have religious objections — by pushing the small expense of the coverage back on the insurance companies, as it already does for some religious organizations like churches, hospitals, and colleges. Such a simple fix is probably unavailable if companies object to covering vaccines or blood transfusions, much less seeking exemptions from civil rights laws.

But Justice Ginsberg was not comforted by Alito’s assurances of what may or might happen. Analogous cases may turn out differently, but they might not. Countless numbers of them will work their way through the system for years to come, creating unnecessary chaos as lower courts explore the consequences of Alito’s new interpretations of religious liberty and corporate law.

And who knows? The Court has committed itself to nothing, so maybe those cases will lead to new sweeping rulings by the Court’s increasingly activist conservative (and male Catholic) majority. The government’s “easy” fix to the contraception mandate is itself challenged in a case that the Court will probably hear next year; immediately after the Hobby Lobby ruling, the Court issued an emergency order demonstrating that it takes that case seriously.

What does the ruling say? Here’s the full opinion of the Court — Alito’s 49-page ruling and Ginsberg’s 35-page dissent, plus a few paragraphs from other justices. Law professor Eugene Volokh summarized Alito’s ruling in 900 words, and Ezra Klein got it down to three sentences:

  1. A federal law called the Religious Freedom Restoration Act was written to protect individuals’ religious freedoms — and on Thursday, the Supreme Court ruled that, under RFRA, corporations count as people: their religious freedoms also get protection.

  2. The requirement to cover contraception violated RFRA because it mandated that businesses “engage in conduct that seriously violates their sincere religious belief that life begins at conception.”

  3. If the federal government wanted to increase access to birth control — which they argued was the point of this requirement — the Court thinks it could do it in ways that didn’t violate religious freedom, like taking on the task of distributing contraceptives itself.

Alito clearly thinks (or wants us to think) that his ruling is narrowly targeted:

This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice.

But Ginsberg’s dissent begins:

In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.

And later she explains:

Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private. Little doubt that RFRA claims will proliferate, for the Court’s expansive notion of corporate personhood—combined with its other errors in construing RFRA—invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith.

Ginsberg sees four dangerous new principles in Alito’s ruling:

  • Originally, the Religious Freedom Restoration Act of 1993 was meant to restore an interpretation of the First Amendment’s free-exercise clause that the Supreme Court backed away from in 1990. Alito has cut the RFRA loose from history of First Amendment interpretation, giving future Courts broad license to expand the notion of religious liberty.
  • Alito has granted RFRA rights to for-profit corporations, extending the legal fiction of corporate personhood into a previously unexplored realm, and blowing away the long-observed distinction between for-profit corporations and specifically religious organizations (like churches) created to serve their members.
  • The meaning of a “substantial burden” on religious liberty has been significantly weakened and made subjective.
  • The “corporate veil” — the legal separation between corporations and their shareholders — has been turned into a one-way gate. The rights of the shareholders now flow through to the corporation, but the debts, crimes, and responsibilities of the corporation still don’t flow back to the shareholders.

Let’s take those one by one.

The RFRA goes beyond any previous history of First Amendment interpretation.

For decades, the Court applied what it called the Sherbert test to First Amendment, religious-liberty-infringement cases: A law could require a person to violate his/her religion — say, by working on the Sabbath — only if the law was the least restrictive way to achieve a compelling government interest. But in 1990 it backed away from that principle in the Smith decision: If a law had a larger purpose and didn’t specifically target a religion, it didn’t have to be quite so accommodating.

Congress then passed the Religious Freedom Restoration Act to reinstate the Sherbert Test by statute. That’s what the law says and that’s how it has been interpreted. But you can’t justify the Hobby Lobby decision from the pre-Smith precedents, because you run into the 1982 Lee decision, concerning whether an Amish employer had to pay Social Security taxes:

Congress and the courts have been sensitive to the needs flowing from the Free Exercise Clause, but every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on the employees.

Alito doesn’t answer Lee, he just blows it away:

By enacting RFRA, Congress went far beyond what this Court has held is constitutionally required.

In other words, in spite of its name the RFRA doesn’t “restore” anything; it’s a revolutionary assertion of new religious rights unrelated to the First Amendment. How far do those new rights go? Alito doesn’t say. A more detailed analysis of this issue is in Slate. Daily Kos’ Armando has an interesting response: If the RFRA really does mean what Alito claims, then the RFRA itself is an unconstitutional establishment of religion.

The RFRA extends to for-profit corporations.

The RFRA uses the word person and doesn’t define it, so Alito argues that the definition must come from the Dictionary Act of 1871, which says

the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.

Worship of Mammon

(If the Dictionary Act rings a bell in your head, here’s where you’ve heard of it before: The way the Defense of Marriage Act affected thousands of laws in one swoop was by amending the Dictionary Act’s definition of marriage.) But Ginsberg points out that the Dictionary Act “controls only where context does not indicate otherwise.” Since “the exercise of religion is characteristic of natural persons, not artificial legal entities” the context of a law concerning the exercise of religion already excludes corporations.

Alito wants to claim his ruling only applies to “closely-held corporations”, but that’s not what the Dictionary Act says. If Bank of America wants to admit that it worships Mammon — a religion at least as old and popular as Christianity — it can claim free-exercise rights.

Alito’s reasoning has already had one very unintended consequence: A Guantanamo detainee was previously denied protection of the RFRA, because a court decided that the meaning of “person” in his case was not the Dictionary Act definition. Now that the Supreme Court has gone on record saying the “person” in the RFRA has the Dictionary Act meaning, he is claiming his case should be re-considered.

The meaning of “substantial burden” was weakened.

ObamaCare didn’t require the owners of Hobby Lobby to use, manufacture, distribute, or even necessarily buy contraceptives. They were merely required to provide health insurance that would cover contraceptives if the employees decided to use them. If Hobby Lobby employees agreed with the owners’ scruples, no violation of those scruples would take place.

Ginsberg did not find this burden “substantial”.

It is doubtful that Congress, when it specified that burdens must be “substantial,” had in mind a linkage thus interrupted by independent decisionmakers (the woman and her health counselor) standing between the challenged government action and the religious exercise claimed to be infringed.

But Alito did:

The belief of the Hahns and Greens implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is immoral for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another. It is not for the Court to say that the religious beliefs of the plaintiffs are mistaken or unreasonable.

But surely any clever person can find a link of some sort between whatever they don’t want to do and the commission of some act they consider immoral by someone else. Alito is encouraging Christians to develop hyper-sensitive consciences that will then allow them to control or mistreat others in the name of religious liberty, a pattern I described last summer in “Religious ‘Freedom’ Means Christian Passive-Aggressive Domination“.

I focus on Christians here for a very good reason: Given that this principle will produce complete anarchy if generally applied, it won’t be generally applied. Contrary to Alito’s assertion, judges will have to decide whether the chains of moral logic people assert are reasonable or not. For example, elsewhere in his opinion he brushes off the objection that corporations will claim religious benefits to increase their profits:

To qualify for RFRA’s protection, an asserted belief must be “sincere”; a corporation’s pretextual assertion of a religious belief in order to obtain an exemption for financial reasons would fail.

But how would it fail, if “it is not for the Court to say” whether asserted religious beliefs are unreasonable? If Randism is repackaged as a free-market-worshipping religion, won’t any regulation infringe on it? Who could claim that Koch Industries is “insincere” in its Randism?

In practice, a belief will seem reasonable if a judge agrees with it. That’s what happened in this case: Five male Catholic judges ruled that Catholic moral principles trump women’s rights. Three Jews and a female Catholic disagreed.

The nature of corporations was re-imagined.

Ginsberg:

By incorporating a business, however, an individual separates herself from the entity and escapes personal responsibility for the entity’s obligations. One might ask why the separation should hold only when it serves the interest of those who control the corporation.

Alito brushes away this separateness:

A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.

Alito waves his hand at employees, but his ruling only applies to owners, i.e., rich people. So in Alito’s reading of corporate law, corporations protect rich people’s rights while shielding them from responsibilities. It is a way to write inequality into the law.

friend-of-the-court brief written by “forty-four law professors whose research and teaching focus primarily on corporate and securities law and criminal law as applied to corporations” says Alito’s “established body of law” doesn’t work the way he says, and that making it work that way will open “a Pandora’s box”.

The first principle of corporate law is that for-profit corporations are entities that possess legal interests and a legal identity of their own—one separate and distinct from their shareholders. … [T]he most compelling reasons for a small business to incorporate is so that its shareholders can acquire the protection of the corporate veil. … Allowing a corporation, through either shareholder vote or board resolution, to take on and assert the religious beliefs of its shareholders in order to avoid having to comply with a generally-applicable law with a secular purpose is fundamentally at odds with the entire concept of incorporation. Creating such an unprecedented and idiosyncratic tear in the corporate veil would also carry with it unintended consequences, many of which are not easily foreseen.

The brief spells out some of the foreseeable consequences: battles between shareholders (perhaps spilling into court) about a corporation’s religious identity, weakening of the shareholders’ shielding against the debts and/or crimes of the corporation, corporations whose religious identities exempt them from certain laws might obtain advantages over their competitors, minority shareholders might sue a management that refused to take on an advantageous religious identity (because it failed to maximize profit), and many more. They conclude:

Rather than open up such a Pandora’s box, the Court should simply follow well-established principles of corporate law and hold that a corporation cannot, through the expedient of a shareholder vote or a board resolution, take on the religious identity of its shareholders.

Conclusion: The Box is Open.

More cases are already in the pipeline, cases that object to all forms of contraception, not just the four Hobby Lobby’s owners view as abortion-causing. One objects to paying for “related education and counseling”, so even seeing your doctor to discuss contraceptive options might be out. Religious employers are already asking to be exempt from rules about hiring gays and lesbians. Photographers and bakers want to be free to reject same-sex marriage clients. Beyond that, who can say what plans are being hatched in religious-right think tanks or corporate law offices?

The Court did not endorse these claims in advance, but it laid out sweeping new principles and did not provide any tests to limit them.

 

Actually, David IS Goliath

Powerful forces aligned behind Dave Brat and against Eric Cantor


When previously unknown Dave Brat beat House Majority Leader Eric Cantor in the Republican primary Tuesday, pundits struggled in vain to find appropriate historical parallels. In America, majority leaders just do not lose primaries … until now.

Since then, the conventional-wisdom storyline has been David vs. Goliath: A grass-roots candidate with virtually no resources overthrew one of the most powerful insiders in the country. But that’s not exactly true; the more accurate story is that one branch of the Billionaire Party had an unexpected victory over the other branch.

Let’s start with the David. The quick description says Brat is an economics professor from Randolph Macon College in Ashland, VA. That’s true, but there’s more to that story. Brat is director of the BB&T Moral Foundations of Capitalism Program at RMC, one of those ethically suspect programs where billionaires pay a university to teach a particular point of view; in this case, that free-market capitalism is morally superior to all other systems.

Probably, Brat genuinely believes this Randish philosophy. And propagandizing students with his personal opinions makes Brat no worse than professors of many other viewpoints. But unlike those other professors, Brat is paid not to change his mind. He may be a genuine proselyte, but he’s also a hired shill.

Other shills hired by the same people are the stars of right-wing talk radio. As Politico has reported, talk radio runs on a political version of payola:

A POLITICO review of filings with the Internal Revenue Service and Federal Election Commission, as well as interviews and reviews of radio shows, found that conservative groups spent nearly $22 million to broker and pay for involved advertising relationships known as sponsorships with a handful of influential talkers including [Glenn] Beck, Sean Hannity, Laura Ingraham, Mark Levin and Rush Limbaugh between the first talk radio deals in 2008 and the end of 2012. Since then, the sponsorship deals have grown more lucrative and tea party-oriented, with legacy groups like The Heritage Foundation ending their sponsorships and groups like the Tea Party Patriots placing big ad buys.

Dick Armey has described the system — known as “embedded media”– more bluntly:

The arrangement was simply FreedomWorks paid Glenn Beck money and Glenn Beck said nice things about FreedomWorks on the air.

Brat spent only $200K or so on his campaign (compared with $5 million by Cantor). But (in what the NYT calls “a unique and potent alignment of influential voices in conservative media”) he got the kind of support money supposedly can’t buy from talk-radio personalities like Ingraham and Levin. Not only did they talk him up regularly on their shows (and dis Cantor), but Ingraham lent her star-power to a Brat rally. Thom Hartmann refers to this arrangement as a “dark money machine” and says:

Once you’ve realized that David Brat wasn’t just some random college professor but was actually the hand-picked candidate of the libertarian billionaire class and its army of talk radio hosts, it’s easy to see another one of the major reasons Eric Cantor lost. We’re living in a brave new world of dark money politics, and in this day and age, doing what Eric Cantor did – hanging out with the Chamber of Commerce, K Street, and Wall Street – only gets you so far. If you want to win these days, you need to win the support of the Kochs, their libertarian billionaire friends, and their allies in the talk radio world.

So while Cantor spent more-or-less transparently — receiving contributions and then buying ads — money got spent invisibly around Brat: The Koch-supported candidate got pushed by talk radio personalities who have sweetheart deals with Koch-funded groups.

That’s not exactly grass roots.

The other misperception about the Brat/Cantor race is that it was all about immigration, where (despite blocking House consideration of the bipartisan Senate immigration bill) Cantor was painted as pro-amnesty. That dynamic was certainly part of the campaign, but if you have a half-hour to burn, it’s worth listening to Brat’s stump speech.

Immigration certainly comes up, along with the I-can’t-believe-he’s-an-economist explanation that cheap labor from immigrants is to blame for the slow growth in jobs. (Cheap unskilled immigrant labor might lower the wages of unskilled jobs, but basic supply-and-demand says that lowering wages would increase the number of such jobs. Since the number of people employed only recently got back to pre-recession levels, immigrant competition can’t be the main reason the job market is so tough.) But Brat’s indictment of Cantor runs much deeper: He’s the Chamber-of-Commerce candidate, while Brat is running against TARP and bailouts and all the other ways that government fixes the game in favor of big business.

If he’s elected, we’ll see if anything comes from that populist rhetoric, or if Brat only implements the cut-spending-on-the-poor and let-corporations-pollute aspects of Randism.

Thomas Frank, whose What’s the Matter With Kansas? detailed the conservative bait-and-switch between populist social-issue rhetoric and cut-taxes-on-the-rich votes in Congress, is skeptical. Yesterday in Salon, he wrote:

The clash of idealism and sellout are how conservatives always perceive their movement, and what happened to Eric Cantor is a slightly more spectacular version of what often happens to GOP brass. That right-wing leaders are seduced by Washington D.C., and that they will inevitably betray the market-minded rank-and-file, are fixed ideas in the Republican mind, certainties as definite as are its convictions that tax cuts will cure any economic problem and that liberals are soft on whoever the national enemy happens to be.

Which is not to say that such betrayals don’t really happen. But Frank finds their inevitability not in universal human corruptibility, but in the fundamental tenets of conservatism itself: Anyone who believes the free market should control all aspects of life will eventually sell his vote to the highest bidder.

So the cycle goes on, uprising after uprising, an eternal populist revolt against leaders who never produce and problems that never get solved. Somehow, the free-market utopia that all the primary voters believe in never arrives, no matter how many privatizations and tax cuts the Republicans try. And so they seek out someone even purer, someone even more fanatical. They drag the country into another debt-ceiling fight, and this time, they say, they really mean it! But what never occurs to them is that maybe it’s their ideals themselves that are the problem.

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