Category Archives: Articles

What Can You Do About the Senate?

April 11, 2016 – 10:17 am

who to support if you want Democratic control

The current shenanigans with federal judges (which I discussed in more detail in the previous post) underlines the importance of controlling the Senate. Conservative judges, in turn, are responsible for making campaign finance an even bigger mess than it already was, and for opening the door to the voter suppression we’ve seen in recent primaries. So if you want to fix the government, fixing the Senate has to rank high on your list.

Currently Republicans have a 54-46 Senate majority (as long as independents Angus King of Maine and Bernie Sanders of Vermont continue caucusing with the Democrats). That what gives them the power to monkey-wrench the Obama administration and the country as a whole.

Fortunately for the Democrats, though, this fall all the Republican senators from the Tea Party wave election of 2010 are up for re-election, including some who won in reliably blue states (like Illinois’ Mark Kirk). Conversely, the Democratic incumbents are the ones who were strong enough to win when the wave was crashing against them.

So Republicans have to defend 24 seats and the Democrats only 10. That improves Democrats’ prospects of gaining the five seats (or four plus the presidential election, since the vice president breaks ties) necessary to gain control.

Predictions. My usual prediction guru is Nate Silver, but other than a couple of articles about specific races his 538 blog hasn’t weighed in yet on the Senate. Three other election-predicting web sites (Larry Sabato’s Crystal Ball, Cook’s Political Report, and Predictwise) tell similar stories: Democrats are likely to gain Republican seats in Illinois and Wisconsin, and they have an even shot to flip four others: Ohio, Pennsylvania, New Hampshire, and Florida. The only Democratic seat that looks iffy is the one Harry Reid is retiring from in Nevada.

Sabato thinks three other Republican seats — Arizona, Missouri, and North Carolina — could flip if a serious Democratic wave develops. Cook and Predictwise are pessimistic about Arizona and Missouri, but agree on North Carolina. Predictwise sees possible trouble for Republicans in Indiana and Louisiana, but Cook and Sabato disagree.

The three have a minor disagreement about how secure Democratic Senator Michael Bennett is in Colorado (partly because there’s a chaotic Republican primary still to come), but nobody rates that race as a toss-up.

In the PredictIt prediction market, a share that will pay $1 if the Democrats control the Senate is going for 64 cents, compared to 36 cents for Republican control.

This far out, I don’t think anybody’s predictions are all that reliable, but they do give you a sense of where the battle lines are. If the Democrats are going to gain four seats, they need to win in Wisconsin and Illinois, and then take three of the five toss-up states: Nevada, Florida, New Hampshire, Ohio, and Pennsylvania. (That turns a 1-6 disadvantage into a 5-2 advantage, gaining four.) If a Democrat doesn’t win the presidency, Democrats need to take four of the five toss-ups.

The seven key races. In Wisconsin, former Senator Russ Feingold is trying to get his old seat back from the guy who beat him in 2010, Ron Johnson.

In Illinois, two-term Congresswoman Tammy Duckworth is trying to unseat Mark Kirk.

In New Hampshire, Governor Maggie Hassan is running against Senator Kelly Ayotte. New Hampshire Republicans always try to project the Warren Rudman image of an independent-minded person with broadly conservative values, but when push comes to shove, Ayotte does what the Mitch McConnell tells her. So while she’s agreed to meet with Garland for appearance’s sake, she’s holding firmly to the party line of refusing hearings and or a vote.

In Ohio, ex-Governor Ted Strickland faces Senator Rob Portman, who suddenly discovered that same-sex couples deserve a shot at marriage after his son came out of the closet. You can give him credit for having the courage to say so, or you can see it as one more example of a Republican whose compassion ends at the boundaries of his own family.

In Pennsylvania, Senator Pat Toomey is defending his seat against an undetermined Democrat. Joe Sestak, who lost to Toomey by only two percentage points in 2010, is fighting a primary battle with Katie McGinty, the governor’s former chief of staff, who is less well known, but is backed by most of the party establishment.

In Nevada, former state attorney general Catherine Cortez Masto is expected to be the Democratic candidate. In recent polls, she’s been running slightly behind Republican Joe Heck and significantly ahead of 2010 Senate candidate Sharron Angle, famous for her call for “Second Amendment remedies” if Democrats couldn’t be stopped at the ballot box.

The unexpected toss-up is Florida. This is Marco Rubio’s seat, which he decided not to defend to emphasize how committed he was to his presidential campaign. Neither party has picked a candidate yet; the primary is August 30. Polling on both sides has Undecided far ahead of any candidate.

What you can do. Citizens influence elections in three ways: by voting (if there’s a race in your state), giving money (if you have it), and working. Working for a candidate is a lot easier if you live nearby, but in this era of inexpensive long-distance calls, just about anybody can phone-bank for a candidate, and you can always write letters to newspapers in a candidate’s state. If nothing else, you can go to a candidate’s web site, click whatever link asks you to volunteer, and see what they say.

Who to support. The voting part is a no-brainer: If there’s an election in your state, you should vote. Unless you’re rich, though, you’re not going to give significant amounts of money to more than one or two candidates, and even one candidate can absorb all the volunteer time you have. So once you get past voting, you need to be selective: Which candidates deserve your support most?

Well, that depends on what you want.

If you’re sick of watching your candidates lose and you just want to win one you can feel good about, both Feingold or Duckworth are favored, and either can give you a sense of vicarious pride. In 2001, in the mad panic that followed the 9-11 attacks, the Senate voted 98-1 for the Patriot Act. Feingold was the 1. Duckworth flew helicopters in Iraq, where she lost both her legs in a rocket attack. Now she says, “When my colleagues start beating the drums of war, I want to remind them what the true costs of war are.” She also would increase the woeful number of women in the Senate (currently 20 out of 100).

If you want to make the biggest difference, the most toss-uppy toss-up is either New Hampshire, where PredictIt is giving 53-47 odds in favor of Hassan, or Pennsylvania, where Predictwise makes the (still unchosen) Democratic candidate a 48-52 underdog. (The polls in Pennsylvania are dismal for the Democrats, but that’s not unusual when an incumbent is matched against someone who hasn’t nailed down the nomination yet.) I’d pick Hassan here, because all Senate seats have the same power, while New Hampshire is a small state. So one contribution or one campaign worker is likely to have a bigger impact in New Hampshire than in Pennsylvania.

If you want to dream the big dream, I’d try to unseat John McCain in Arizona. It’s remotely possible, and it would make an enormous splash.

If you want to send a message, the senator most responsible for stalling the Garland nomination (other than maybe McConnell, who isn’t up for election this year) is Iowa’s Chuck Grassley, the chair of the Judiciary Committee. Grassley was once thought to be untouchable, and still is seen as a likely winner, but the Garland issue is making him vulnerable. As a result, some high-profile Democrats have been drawn into the race who might otherwise have decided it’s a waste of effort, like former Lieutenant Governor Patty Judge.

Or just roll some dice and pick a race. Whatever you decide to do, you’ll feel better about it than if you do nothing.

By weeklysift | Tagged | Comments (18)

The Broken Senate is Breaking the Courts

April 11, 2016 – 8:08 am

Merrick Garland is just the tip of a dangerous iceberg.

There have been a few cracks, but Mitch McConnell’s blockade of Merrick Garland’s Supreme Court nomination is holding. The quick threat of a primary against Kansas Senator Jerry Moran (when it looked like he might break ranks) not only got him back in line, but served as a warning to any other Republican who might consider taking the Senate’s constitutional duties seriously.

Ironically, the court blockade is one of the indirect effects of the Supreme Court’s dismantling of campaign finance laws, and shows the advantage that development gives extremists in the Republican Party. A few cycles ago, the threat of whipping up a statewide primary challenge from scratch against an otherwise popular incumbent in just a few months (the Kansas Senate primary is in early August) would have been laughable. And it still would be laughable if the far Left made a similar threat against a Democratic senator over some progressive issue. But everything changes when a handful of deep-pocketed donors can call up a potential challenger and say: “We’ve got the money, are you ready to go?”

Jennifer Bendery, Huffington Post‘s congressional reporter, points out that Garland is just the highly visible tip of a much deeper iceberg: The Senate has all but stopped processing judicial nominees up and down the federal court system.

For some broader perspective, consider that Republicans have only confirmed 16 judicial nominees since becoming the Senate majority in January 2015. At this same point in President George W. Bush’s eighth year, when Democrats controlled the Senate, 40 judicial nominees had been confirmed.

… The last time the Senate confirmed a judge was in mid-February, and that was only because McConnell postponed a package of judicial nominees from 2015 into the new year. There are 15 judicial nominees ready for a confirmation vote right now, but only one of those votes has been scheduled. Another 32 are waiting on the Judiciary Committee, which hasn’t held a hearing for a nominee since January. Federal courts, meanwhile, are at 79 vacancies and climbing.

That kind of behavior almost forces the Democrats to respond in kind if the political situation reverses. To do anything else — to let the Senate resume its constitutional duties as soon as a Republican enters the White House — would mean conceding that only Republican presidents are empowered to appoint judges. Such acquiescence would guarantee a conservative judiciary for the foreseeable future.

That exemplifies why it’s nearly impossible to be the Good Government Party once the other side decides to be the Bad Government Party. And so the deterioration I’ve been tracking in my Countdown to Augustus posts goes on.

Last fall, Bendery explored the effects of a broken judicial-appointment system: overloaded judges who burn out and cases that drag on forever. Courts prioritize criminal cases for good reason: A long delay risks either leaving a predator on the streets or wrecking an innocent defendant’s life by letting him rot in jail. But something has to give, as Chief Judge Morris England of the U.S. District Court for California’s Eastern District explains:

What happens is you have to keep pushing civil cases further out. They’ve already been waiting sometimes three to four years. I get concerned when cases are so old. Memories are fading; people are no longer around. It’s not serving anyone trying to get justice.

Take that a step further: As the federal court system continues to deteriorate, any right those courts enforce deteriorates as well. Little by little, we wind up living in a country where “Yeah it’s illegal, but what are you going to do about it?” is a viable strategy.

That, in turn, creates a temptation to flip the situation around: to get even with your own illegal act, and let the other side beg for justice from the broken courts. And so the back-and-forth of political hardball begets a similar back-and-forth of hardball in everyday life.

By weeklysift | Tagged , | Comments (4)

Where North Carolina’s New Law is Going

April 4, 2016 – 9:48 am

HB2 is just over a week old. But the 5-3 Supreme Court decision that will strike it down is already clear.

When North Carolina’s legislature came together for a one-day emergency session to pass HB2, a state law that struck down Charlotte’s LGBT anti-discrimination ordinance before it could take effect, a lot of us amateur legal buffs wondered: “Didn’t we do this already?”

For the most part we did, and it was all resolved 20 years ago in the Supreme Court case Romer v Evans. Then it was Colorado instead of North Carolina, and Denver, Boulder, and Aspen were playing the roles of Charlotte, Chapel Hill, and Durham. The cities had instituted anti-discrimination protection for gays and lesbians, so in 1992 Colorado’s voters passed Amendment 2, stating that nowhere in Colorado would “homosexual, lesbian or bisexual orientation, conduct, practices or relationships” entitle anybody to claim discrimination in court.

The Colorado Supreme Court struck the law down, holding that it made gays and lesbians into a class of people with diminished political rights: Other Coloradans could petition their local governments for protection against discrimination, but gays and lesbians could not. The state appealed — the “Romer” on the case name is then-Governor Roy Romer, a Democrat — and in 1996 the Supreme Court supported the conclusion of the state court, but with somewhat different logic:

[Amendment 2’s] sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.

Romer is really the first place where the Court said that you can’t pass laws to make gays’ lives harder just because you disapprove of them. It led to the whole series of decisions that culminated in last summer’s Obergefell decision legalizing same-sex marriage nationwide. (It was also the first of many gay-rights decision written by Justice Kennedy, who we’ll get to later.)

So is HB2 obviously unconstitutional, without the need to reinvolve the Supreme Court? Not exactly.

You see, HB2’s authors did something clever: Unlike Amendment 2, the law doesn’t actually mention the people it targets. HB2 is in two parts. The part that got all the publicity was about bathrooms: It doesn’t say anything about transgender people, it just says you can only use the bathroom that corresponds to the gender on your birth certificate.

The other part makes it impossible for a city to pass any kind of LGBT non-discrimination ordinance, but it does so without mentioning LGBT people. Ostensibly, this part of HB2 isn’t about sex or gender at all; it’s about creating a uniform business climate across the state, so that prospective employers have only one set of rules to deal with. North Carolina already had a Wage and Hour Act that uniformized various regulations about wages. HB2 amended it to declare that non-discrimination provisions must be uniform across the state too.

Of course, the only people affected by the change are LGBT folks, because those were the only local non-discrimination ordinances in North Carolina. But the law doesn’t single them out by name. It’s just, like, a coincidence or something.

Again, we’ve been here before (in the 1960s and 1970s) with race and gender discrimination. Slate‘s Mark Joseph Stern explains:

Under Arlington Heights v. Metropolitan, courts must attempt to glean whether a law with a disparate impact on minorities was motivated by discriminatory intent. To do so, courts examine several factors—all of which align chillingly with HB 2. For example, does the challenged law disproportionately affect one minority? (Yes.) Does the “historical background” reveal “a series of official actions taken for invidious purposes”? (Yes—the stated purpose of the law was to overturn Charlotte’s LGBT nondiscrimination ordinance.) Do the events leading up to the law depart from normal decision-making procedures? (Yes; the legislature rammed the law through in record time with minimal discussion.) Does the legislative history reveal governmental animus? (Absolutely: From the start, Republican legislators have vocally supported HB 2 as an effort to disadvantage LGBT people.)

But there’s a still a problem: In all those gay-rights decisions he wrote, Justice Kennedy dodged the question of whether laws concerning gays and lesbians require some form of heightened scrutiny, like laws affecting race and gender do. Laws that affect women or racial minorities may seem to be about something entirely neutral, but because governments have a long history of race and gender bias, courts can’t take that at face value; they have to consider the broader situation in the way Stern describes. Lower courts have sometimes decided that heightened scrutiny was called for — the Colorado Supreme Court did in Romer, for example — but Justice Kennedy has a frustrating way of reaching decisions without resolving the underlying legal issues (something I have complained about repeatedly).

So there is something to decide here: Should North Carolina’s legislature be taken at its apparent word, that this is just about a uniform business climate, unrelated to any animus towards the LGBT community? As Stern points out, that’s a really hard case to make, if the Court lets itself consider the broader context at all. But no particular precedent says it absolutely has to do that.

So this will reach the Supreme Court, and the votes there are already obvious: Roberts, Alito, and Thomas will want to favor HB2, just as they have been on the wrong side of all the gay rights cases. Breyer, Ginsberg, Sotomayor, and Kagan will be want to strike it down, since I believe they all already see sexual orientation as requiring heightened scrutiny. That leaves Kennedy, who will do what he always does: decide the case in favor of gay rights, without laying any principles that will keep the next case from coming back to him.

So that’s a 5-3 vote to strike HB2 down, a margin that will be unaffected by whether Justice Scalia is replaced in time to matter.

By weeklysift | Tagged , | Comments (8)

Crime and Punishment: Did Trump Spill the Beans on the Pro-Life Movement?

April 4, 2016 – 9:14 am

Did Trump get the pro-life position wrong? Or just express it too bluntly?

Fact-checkers tell us that Donald Trump makes mistakes all the time. [1] But Wednesday something unusual happened: He made a mistake he had to back away from.

You can hardly blame him, because his interviewer (Chris Matthews) cheated: He asked follow-up questions and kept badgering for an answer. (Who knew journalists could do that?) After two minutes of dancing back and forth on the topic, Trump let Matthews nail him down:

MATTHEWS: Do you believe in punishment for abortion? Yes or no, as a principle?

TRUMP: The answer is that there has to be some form of punishment.

MATTHEWS: For the woman.

TRUMP: Yeah. There has to be some form.

That statement set off not just feminists, but the anti-abortion folks Trump was trying to appeal to. So Trump had to retreat, ultimately settling on the approved pro-life response: After abortion becomes illegal, doctors should be punished, not women. (He also claimed that MSNBC created the confusion about his views by editing his exchange with Matthews. That should raise his pants-on-fire-lie numbers even higher: The interview was pre-recorded, but aired in its entirety.)

But Trump’s about-face just started a new and even more interesting debate: What kind of mistake did Trump make? Did he get the pro-life position wrong? Or did he spill the beans by stating that position bluntly, without the usual flowery misdirection?

After all, most of Trump’s apparent gaffes have been of the second type: He says what his followers are really thinking, without the caveats and nuanced word choices that make those positions defensible in front of the educated elite. Is that what happened here?

The case for spilling the beans. The essence of the pro-life position is that as soon as sperm meets ovum, you have a fully ensouled human being, with all the God-given rights anybody else has. [2] The natural consequence of this belief is that any abortion, at any stage of a pregnancy, is murder.

Pro-lifers use the word murder in its literal sense, intending nothing metaphoric or hyperbolic. That’s why they so often equate the millions of abortions that have happened since Roe v Wade with the Holocaust.

If you follow where that logic naturally goes, then everybody connected with an abortion is conspiring to commit murder. After all, any mother who paid a man to stick a knife through her baby’s heart would be guilty of murder, so if there is no moral distinction between a baby and a fetus (an “unborn child” or “pre-born baby” in pro-life jargon), any woman who pays a doctor to end her pregnancy must also be a murderer. Why should she go unpunished?

And in fact, in states where pro-lifers have managed to put restrictions on abortion, women do get punished:

Multiple U.S. women — with few options to get themselves to one of their state’s dwindling legal clinics — have been arrested for illegal abortions after they bought abortion-inducing medication online. And thanks to the growing number of laws aimed at protecting “fetal rights,” other women have been punished for doing activities that allegedly harmed their pregnancies. Americans have been charged with murder for allegedly seeking to harm their fetuses by attempting suicide, using illicit drugs, or even falling down the stairs.

A woman in Indiana has been sentenced to 20 years in prison for “feticide”. And if pro-life activists are trying to help her or change the law so that no other women get punished, they’re being awfully quiet about it. As far as that goes, Indiana has a pro-life governor who could commute her sentence at will, if he thought that punishing her was unjust.

But no matter how logically it follows from pro-life assumptions, it seems harsh and cruel to punish women who didn’t want to get pregnant and are just trying to get their old lives back. Nobody likes to think of themselves as harsh and cruel, and besides, it’s bad politics. So pro-lifers deny that’s where they’re headed, even though all the evidence says they’re really headed there.

The counter-argument. When stating a position I disagree with, there’s always a danger that I’ll make a straw man out of it, so I’ll let some prominent pro-lifers state it themselves at length. Here’s how Marjorie Dannenfelser of the Susan B. Anthony List put it on NPR’s Morning Edition:

[T]he pro-life movement has never, for a very good reason, promoted the idea that we punish women. In fact, we believe that women are being punished before the abortion ever occurs. In other words, the early feminists believed this was the ultimate exploitation of women.

The real earliest roots of feminism and the women’s movement really embraced the idea that her innermost soul, in Susan B. Anthony’s words, recoil from the dreadful deed, but thrice guilty is the one who drove her to the deed. And who is that? It’s the abortionist. And that who – is who is the one to be punished when there’s a law against abortion.

Steven Ertelt of LifeNews.com makes a similar point:

the pro-life movement has historically opposed punishing women who have abortions — instead focusing on holding abortion practitioners criminally accountable for the unborn children they kill in abortions.

That pro-woman mentality is partly due to the understand[ing] that the abortion industry preys on women — selling them abortions by lying to them about the humanity of their unborn children and the destructive effects abortion will have.

Charles Camosy, author of Beyond the Abortion Wars, wrote an op-ed for The New York Daily News:

Isn’t pro-lifers’ refusal to follow the logic of their position a dishonest political game — one played because pro-lifers know that, as Trump just learned, the logically consistent position alienates virtually everyone?

That might be true if women have an uncoerced choice to have an abortion. But as I argue in some detail in my book “Beyond the Abortion Wars,” that’s not how our culture works.

Broadly legal abortion is the product of privileged men.

… Unsurprisingly, the all-male Roe court made women “free” to act like men: to imagine themselves as able to live sexual, reproductive, economic, professional lives as men do. Women’s equality was not about getting equal pay for equal work. Not about getting mandatory family leave and affordable child care. Not about passing strict anti-discrimination laws in hiring practices.

What was essential for social equality, according to those responsible for our abortion laws, was that women are able to end their pregnancies when they are a burden on their economic and social interests. But being pregnant and having a child is often so burdensome precisely because our social structures have been designed by and for people who cannot get pregnant. Notice how, in this context, our abortion laws end up serving the interests of men and coercing the so-called “choice” of women.

Someone who is coerced into having an abortion as a means of having social equality should not be put in jail. Women, like their prenatal children, are victims of our horrific abortion policy. Instead, physicians who profit from the violence of abortion ought to be punished.

Ad hoc. Whenever I listen to anti-abortion rhetoric, I’m always struck by the ad hoc reasoning. Points are made that would seem to have implications for lots of other issues, but somehow those concerns vanish as soon as the topic shifts away from abortion.

The easiest place to start is with the Susan B. Anthony quote. It sounds great, doesn’t it? The head of the anti-abortion Susan B. Anthony list quoting Anthony herself, as if she were carrying forward the great woman’s legacy. Unfortunately, there’s no historical record of Anthony ever saying it, and precious little to indicate that Anthony had a position on abortion at all. Even if the quote were legitimate, isn’t it obvious that “the one who drove her to the deed” is not the abortionist, but the man who got her pregnant? (Odd that nobody ever talks about punishing him.)

Dannenfelser and Ertelt seem to be imagining a world in which doctors run some sort of boiler-room operation that cold-calls pregnant women and tries to sell them abortions. Or maybe abortionists hang around outside gynecologists’ offices (the way anti-abortion activists sometimes surround abortion clinics) trying to talk women out of their firm intention to give birth.

Reality is quite different: There is a strong demand for abortion services and always has been, back to the days when young women would come to the local potion-maker or hedge-witch looking for a miscarriage-inducing herb or tea. It is a fact of life that not every woman who gets pregnant wants to raise children at this point in her life, or maybe ever. [3] And even a family that is raising children already doesn’t necessary want to have more of them.

I can see the woman as a pure victim in some cases (say when a high school girl gets pregnant by one of her teachers, who then arranges the abortion for her and talks her into it), but in many cases an abortion is the result of a mature woman deciding what she wants to do with her life — a possibility that pro-life activists seem to ignore entirely.

Many, like Ertelt, claim she is likely to regret this decision. (An actual survey says 95% don’t.) But where else in our lives do conservatives argue that the government should stop us from making regrettable choices, or punish the people who help us carry them out? Quite the opposite: a basic tenet of conservative philosophy is that people should be free to make their own mistakes … in every case but this one.

Camosy’s argument is even more ad hoc. If the majority of pro-lifers felt this way, the political party where they have so much influence would be working on the issues he accuses the Roe v Wade court of ignoring: “equal pay for equal work … mandatory family leave and affordable child care … strict anti-discrimination laws in hiring practices.” In fact the exact opposite is true, and the Republican opposition to these proposals is not even controversial within the party. As soon as the topic shifts away from abortion, Republican concern about women making coerced choices vanishes.

Do they even believe it themselves? People who genuinely believe something don’t make ad hoc arguments; the things you really believe don’t wink in and out depending on the topic. So I have to wonder: Do pro-lifers themselves believe what they’re saying?

Fred Clark, a turncoat from the pro-life movement, says no. He quotes Dannenfelser’s response as an example of what he calls “the Standard Answer”, and then recalls his own experience.

I relied on the Standard Answer when I was a good, faithful pro-lifer. It made the question go away, just as it was meant to do. The Standard Answer worked very well for me until one day, suddenly, it didn’t.

It stopped working for me because, alas, I started listening to what I was saying.

That led to an “unsettling” realization.

I did not want my questioners to think that I wanted to see these women punished because I genuinely did not want to see them punished. At some basic level — some level at which I had not yet allowed myself to articulate my own thoughts to myself — I did not think that punishing these women would be good, fair, right, necessary or just. I thought punishing these women would be wrong.

Why would I think that? Well, that was the question that the Standard Answer was designed and employed to prevent me from ever asking of myself. …

I came to realize I was incapable of defending the central dogma of the anti-abortion religion my people had adopted as the central pillar of our faith — that a fertilized egg is morally and legally indistinct from a human child or a human adult. If that claim were defensible, then I would have no reason not to want to see those women punished and no reason not to try to convince others that they also should want to see those women punished.

Please note what I’m not saying here. I’m not saying I became incapable of believing this claim about the full personhood of the zygote, but that I became incapable of defending it. I’m not sure that anyone is ever capable of believing this claim. [4]

Anyone with functioning compassion understands what Clark realized: that it’s just wrong to punish a woman who sees no better path into the future than having an abortion. So if that’s where the logic of your position relentlessly leads, but you want to go on thinking of yourself as a good and decent person, you need to obfuscate that logic somehow — not just for other people, but for yourself.

That’s what the rest of us need to understand: When pro-lifers give the Standard Answer, they aren’t even trying to make sense; they’re trying to comfort themselves. They’re trying to minimize the cognitive dissonance that comes from advocating something harsh and heartless while claiming to be good Christian people.

Trump didn’t misstate the logic of their position, he just failed to include the comforting obfuscation they need. No wonder they got so upset.

[1] Of his statements checked by PolitiFact, only 8% are judged True or Mostly True, compared to 78% Mostly False, False, or Pants on Fire. By contrast, 51% of Hillary Clinton’s checked statements rate True or Mostly True, with only 28% Mostly False, False, or Pants on Fire. Bernie Sanders‘ split is similar: 51% to 29%.

[2] A lot of people will tell you that this position is Biblical, but it isn’t. In actual history, anti-abortion politics came first, and the justifying theology came later. None of the Bible passages ensoulment-at-conception people quote supports their position without a lot of interpretation, and many are simple taken out of context.

On the other hand, Genesis 2:7 states pretty clearly that the soul enters the body with the first breath:

And the Lord God made man of the dust of the ground, and breathed into his nostrils the breath of life, and man became a living soul.

That interpretation is reinforced by the fact that the words for breath and soul in Biblical Hebrew are very similar.

[3] In 2012, I described the role that legal abortion played in the choices my wife and I made in “What Abortion Means to Me“.

[4] I made a similar claim in the fifth of my “Five Take-Aways from the Komen Fiasco“.

By weeklysift | Tagged | Comments (39)

Buying Back American Democracy

March 28, 2016 – 8:50 am

Reversing Citizens United might take a decade or more. But that doesn’t mean nothing can be done in the meantime.

A few weeks ago I got an email from an anti-Citizens-United group inviting me to learn about their 10-year plan for amending the Constitution to regain control of money in politics.

I think they wanted to motivate me and give me hope, but in fact I found their message depressing. I know they were trying to be realistic, but maybe I just wasn’t ready for that much reality: Ten years? And a result that soon only if everything goes according to plan!

But they’re right; constitutional amendments face a high bar, and building up the strength to clear that bar can take a long time. The various groups and leaders pushing a constitutional amendment haven’t even united on a text yet, or even an intention: Should the amendment just deal with campaign finance, or should it also cover corporate personhood? Should it ban corporate contributions itself, or just empower Congress to do so? And so on.

I have to admit it: Given where we are, ten years might be optimistic.

But Scalia’s gone. Doesn’t that change everything? OK, maybe a constitutional amendment is still far in the future, but couldn’t the Supreme Court just reverse Citizens United itself? In theory, yes. The Supreme Court could find a case tomorrow, and issue a ruling that said, “Our bad. Let’s just pretend that never happened.”

If the Senate approves Judge Garland, or if Bernie or Hillary gets to replace Justice Scalia with somebody even more liberal, quite likely the Court will soon have a majority that even wants to undo CU. But there’s still a problem: The law isn’t supposed to work that way, and (in spite of decades of conservative complaints about “liberal activist judges”) the four current liberal justices plus Garland or whoever probably will have more legal integrity than to reverse a ruling just because they don’t like it. [1]

The Supreme Court is supposed to work according to a principle called stare decisis, which basically means that old decisions should stand. In general, it wouldn’t do for the laws to keep shifting every time a new justice got appointed, so the Court is obligated to try to make past decisions work, even if the current justices would have decided those cases differently. [2]

So a more liberal Supreme Court may stop the bleeding, in that it probably wouldn’t continue John Roberts’ conservative-judicial-activism project of dismantling campaign finance law completely. But we can’t count on it to reverse old decisions, at least not without trying everything else first.

What exactly are we stuck with? For the time being, then, we’re stuck in the world Citizens United created. And that leaves us with the question: Given that we’re stuck here, is there anything we can do to make our politics less corrupt, and to lessen the undue influence billionaires and corporations have on the political process? In other words: Is there legislation (short of a constitutional amendment) that Congress could pass and that the Supreme Court wouldn’t declare unconstitutional?

Answering that question requires us to understand what exactly we’re stuck with. Basically what it comes down to is:

  • Money is speech.
  • The more political speech the better.

There is even — I hate to admit — a certain logic to this. We don’t put any limits on how much Verizon can spend on convincing us that they have the best wireless network, or how much Pfizer can spend telling us that they have the answer to erectile dysfunction. So why should political advertising be treated worse? The Founders’ intent was that political speech be freer than any other kind, not more restricted.

The big problem with Citizens United is that while it does recognize some exceptions to those principles, it ignores situations so similar as to make no difference. For example, CU still allows a ban on quid-pro-quo campaign contributions. In other words, you can’t say to a senator: “I’ll contribute a million dollars to your super-PAC if you vote for this bill that benefits my business” (at least not if somebody in the room is wearing a wire). But if a senator just happens to vote your way a lot and you just happen to spend a pile of money to keep him in office, that’s fine. [3]

In the real world, of course, large contributions are a corruption problem, even if no direct quid pro quo exists or is even implied. Imagine, for the moment, that Senator Inhofe came to his position on climate change honestly. Even so, it’s hard to imagine any Oklahoma citizen getting him to change his mind through evidence or argument, simply because at this point Inhofe knows which side his bread is buttered on. As Upton Sinclair put it: “It is difficult to get a man to understand something, when his salary depends on his not understanding it.”

What that leaves. In short, according to the current interpretation of the First Amendment, the law can’t get between a large contributor and the megaphone he wants to buy or rent to make his point. So what options does that leave?

It’s simple really: The law can try to influence the other players in the system. It can give more power to small contributors, and to people who don’t have enough money to contribute to political campaigns at all. And it can influence candidates to refuse money from corporate PACs and instead focus their fund-raising on the newly empowered small donors.

In other words, if we can’t stop billionaires from spending vast amounts to get their way, we can at least make sure that they aren’t gatekeepers. We can use public money to make sure there is a non-billionaire-approved path to financing a congressional campaign. So yes, there will continue to be billionaire-funded and corporate-funded candidates running for Congress. But those don’t have to be all the viable candidates.

The problem with public financing. In a nutshell: Systems that finance campaigns with public money tend to become status-quo-protection schemes.

In every election there are fringe candidates who run just for vanity’s sake or to promote some crazy point of view. (In recent New Hampshire presidential primaries, we’ve had Vermin Supreme, who could generously be described as a performance artist.) If public financing were available to pay for their campaigns, they’d come out of the woodwork, wasting huge quantities of tax money.

So a candidate-based public financing system needs some way to vet the candidates. Looking at recent presidential candidates, for example, the system would have needed some way to decide that, say, Martin O’Malley and Jim Gilmore were serious in a way that Vermin Supreme wasn’t (even though most of the electorate hadn’t heard of any of them). In practice, such a system tends to favor incumbents (who obviously are serious candidates) and to favor the Republicans and Democrats over any new parties that try to emerge. (If you’re the Republican or Democratic nominee for an office, you’re obviously serious; if you’re nominated by the Rent is Too Damn High Party, maybe not.)

So a candidate-based or party-based campaign-finance system is easily painted as the Washington political establishment voting to subsidize itself. And if the public doesn’t keep close tabs on it, that’s what it can turn into.

Keeping citizens in control. Ideally, candidates in every race from the presidency down to city council would be able to do what Bernie Sanders is doing: raise enough money from small contributors to run a viable campaign. Sanders may not win and he may be outspent, but he has raised enough money to tell the voters who he is and what he wants to do.

Such small-donor financing may just barely be possible at the presidential level, where even low-information voters pay some degree of attention fairly early in the process. But is the waitress or trucker who gives $50 to Bernie Sanders also going to come up with $50 every couple of years for a Senate candidate and a House candidate and a governor and on and on? How will such voters even learn enough about lower-office candidates to know which ones are worth supporting? The way things stand, planning a congressional campaign around these kinds of contributors just isn’t practical. And that’s why Congress seems so corrupt: If you’re serious about running a competitive campaign, you have to either raise money from special interests or be so rich that you’re practically a special interest yourself.

But even at the level of senator and representative, it’s not impossible to raise money from small donors, it’ s just very, very unlikely that you’ll raise enough of it. And that brings us to the idea of small-donor public financing: What if public financing wasn’t focused on candidates or parties, but instead was used to magnify the effect of small donors? In other words, what if your donation of $20 to a candidate qualified that candidate for an additional $100 of public financing?

Such a plan would leave citizens in control, rather than bureaucrats or politicians. If voters wanted to give money to a well-known Republican or Democrat, fine. But if they’d rather give to an outsider major-party candidate, or to a Libertarian or a Socialist, or even to Vermin Supreme, that would be up to them. The public money would follow their lead.

Rep. John Sarbanes of Maryland [4] has a bill to do that. The Government By the People Act has three parts:

  • A $25 tax credit for people who contribute at least $25 to a congressional candidate. Essentially, the government is refunding to you the first $25 of contributions you make. So almost everybody has the means to donate something.
  • A 6-to-1 match of contributions up to $150 to congressional candidates who qualify for the match by agreeing to forego PAC contributions and getting sufficiently many small contributions. So if you give a qualifying candidate $50, his campaign gets $300. [5]
  • Provides additional matching in the home stretch of a campaign for candidates who raise $50,000 in small-donor contributions.

So even under the current Supreme Court interpretations of the First Amendment, no billionaire’s or lobbyist’s rights are infringed. If the Koch Brothers want to spend millions to oust your representative (as they have tried to oust mine), they still can. But a candidate who wants to appeal to the people rather than to monied interests has a plausible path to victory. Sarbanes does the math:

Imagine 35 people gathering at a neighbor’s home, each giving $50. With matching funds, that would add up to $10,500. Do five of those events, and 175 people donate a combined $52,500.

Politicians suddenly would find it worthwhile to spend time in backyards with real voters, rather than in rarefied high-rises with big shots. More importantly, the candidate would have made connections with people who would be willing to knock on doors and help work phone banks, something K Street swells never would do.

Why would Republicans go for this? As the party that benefits most from big-money contributions, Republicans generally get an advantage from the current system. So naturally, most of the current co-sponsors of Sarbanes’ bill are Democrats.

But among voters, Republicans worry as much as Democrats about the corruption of the current system. (That’s why Trump’s pledge to self-finance his primary campaign is working so well for him.) And while any public-financing plan would have a cost, there is a conservative case that this would be money well spent: If it could prevent just one Bridge to Nowhere or one Solyndra loan, the plan would easily pay for itself. That’s why a Republican as conservative as North Carolina’s Walter Jones is on board.

And there’s a self-serving answer to why congresspeople of either party might support such reform: If you build a network of small donors in your district, that network is yours. No one can call you up and threaten to take it away from you if you don’t do what they want. But under the current system, many apparently secure senators and representatives live in terror of getting such a call.

Whether we’re talking about liberals or conservatives, no one goes into politics because they dream of toadying for lobbyists and kissing the rings of billionaires. The dream is of being a real decision-maker, not the puppet of some vested interest.

Summary. We can continue laying the groundwork for an anti-Citizens-United constitutional amendment some time in the far future, and we can continue hoping that a future Supreme Court will see the inherently corrupting nature of huge campaign contributions. But in the meantime, there is an actual piece of legislation that would be a big help.

Politicians who think the current system works in their favor may want to ignore that bill. But their voters — even their conservative Republican voters — see the problem and want a solution. So if we can get the Sarbanes bill on the national agenda, to the point that every candidate will have to take a position on it, lots of people you don’t expect might decide they’d better support it. And even politicians who seem to be securely on somebody’s leash may decide they’d like to chew through that leash.

[1] Just for perspective: During the ten years between Scalia’s death and, Alito replacing O’Connor in 2006, the Court probably had a majority that wanted to reverse Roe v Wade. But it didn’t happen.

[2] A good example of how the process is supposed to work is in Chapter 4 of David Strauss’ book The Living Constitution, in which he describes how Brown v Board in 1954 came to overrule Plessy v Ferguson of 1896. The 1954 Court didn’t just reverse the 1896 Court out of the blue. In between came a long series of cases, in which the Court kept trying and failing to square “separate but equal” with the rest of the American legal tradition. By 1954, separate-but-equal was so full of exceptions and provisos that it couldn’t hold together. So Brown wasn’t just saying that separate-but-equal was a bad idea, it was saying “We tried to make this work and we can’t do it.”

[3] Suppose, say, that Senator James Inhofe is the voice of climate-change denial in the Senate and uses his position as chair of the Environment and Public Works Committee to block any effort to shift America away from its dependence on fossil fuels. And then suppose that his top campaign contributions all come from producers or consumers of large quantities of fossil fuels. The Supreme Court sees no problem there that the law might want to address; quite the opposite, it sees any law that might get in the way of that arrangement as a violation of free speech.

In particular, there are virtually no limits to what a contributor can spend on political “speech” if there is no direct coordination with the candidate. So if, say, the Koch Brothers decide (totally on their own) that (for the good of the country) they want voters to keep electing wise senators (like Jim Inhofe), and if they want to spend vast amounts of their money to say so (whether Jim Inhofe likes it or not), that is simply their First Amendment right.

[4] If the name rings a bell, you’re probably thinking of his father, Senator Paul Sarbanes.

[5] To me, that sounds like a 5-to-1 match, with your original dollar making the sixth. But apparently that’s not how they figure. I’m making my math consistent with the examples Sarbanes gives.

By weeklysift | Tagged | Comments (16)

Tick, Tick, Tick … the Augustus Countdown Continues

March 21, 2016 – 9:13 am

If we can’t make our republican system of government work, eventually the people will clamor for a leader who can sweep it all away. Many of them already do.

In the 2013 post “Countdown to Augustus” I laid out a long-term problem that I come back to every year or so:

[R]epublics don’t work just by rules, the dos and don’t explicitly spelled out in their constitutions. They also need norms, things that are technically within the rules — or at least within the powers that the rules establish — but “just aren’t done” and arouse public anger when anyone gets close to doing them. But for that public anger, you can often get an advantage by skirting the norms. And when it looks like you might get away with it, the other side has a powerful motivation to cut some other corner to keep you in check.

… As Congress becomes increasingly dysfunctional, as it sets up more and more of these holding-the-country-hostage situations, presidents will feel more and more justified in cutting Congress out of the picture.

We know where that goes: Eventually the Great Man on Horseback appears and relieves us of the burden of Congress entirely.

The immediate motivation for that post was the debt-ceiling crisis of 2013, when Congress was threatening to blow up the global economy unless President Obama signed off on the repeal his signature achievement, ObamaCare. Various bizarre ways out were proposed, including minting a trillion-dollar coin to deposit with the Federal Reserve.

I had previously raised the declining-norms theme in “Escalating Bad Faith“, about the tit-for-tat violation of norms relating to presidential appointments and the filibuster, going back several administrations. And I returned to it in 2014 in “One-and-a-half Cheers for Executive Action” as Obama tried to circumvent the congressional logjam on immigration reform.

The historical model I keep invoking is the Roman Republic, which didn’t fall all at once when Julius Caesar crossed the Rubicon or his nephew Octavian became the Emperor Augustus, but had been on such a downward spiral of norm-busting dysfunction for so long (about a century) that it was actually a relief to many Romans when Augustus put the Republic out of its misery. In “Countdown” I pointed out the complexity of that downward trend:

About half of the erosion in Rome was done by the good guys, in order to seek justice for popular causes that the system had stymied.

So now we are experiencing a new escalation in norm-breaking: The President has nominated a well-qualified judge to fill a vacancy on the Supreme Court, and the Senate is simply ignoring him.

At various times in American history, individual senators of both parties have postured about the Senate’s prerogatives, usually in the abstract, and usually in an attempt to influence the president to choose a nominee more to their liking than the ones they suspected he had in mind. But in the long history of the American Republic, we have never been in this place before. The Senate has never simply ignored a nominee for the Supreme Court.

The gravity of this may not be apparent to most Americans. Day to day, the country is continuing just fine without a fully staffed Court. Justice Scalia died over a month ago, and his absence isn’t causing anything in particular to go wrong. In some ways it’s like operating a nuclear power plant with the emergency-response systems turned off: As long as there’s no emergency that needs a response, nobody notices.

But what happens if the 2016 election comes out like the 2000 election? What if the outcome hangs on some dispute that only the Supreme Court can resolve? As hard as it was on the country when the Court’s poorly reasoned 5-4 decision in Bush v Gore handed the presidency to the man who lost the popular vote, imagine where we would be if the Court had tied 4-4 and been unable to reach a decision?

Constitutional crises are rare in this country, but they happen, and only the Supreme Court can resolve them in a way that preserves our system of government. Legally, a tie at the Court means that the lower-court opinion stands, whatever it was. But in a true crisis, would a lower court have the prestige to make the other branches of government respect its decision?

Go back to the Watergate crisis, and the Court’s order that the Nixon administration turn over to Congress its tapes of Oval Office conversations. At the time, some advised Nixon to defy the Court and burn the tapes. What would have happened next is anybody’s guess, but the unanimity of the Court’s decision gave it additional moral force, and Nixon complied — even though the tapes led quickly and directly to his resignation. If that decision had split 4-4, along what were seen to be partisan lines, history might have played out differently. Nixon might have reasoned that he wasn’t defying a lower court, he was just breaking the tie.

Disputes between lower courts also happen, and if the Supreme Court can’t resolve them, we wind up with different laws applying in different jurisdictions. Imagine, for example, if the availability of ObamaCare or whether you could get married, depended not on which state you live in, but which federal appellate district.

What if appellate courts disagree about jurisdiction? If a government computer in Utah captures a phone conversation between Georgia and Wisconsin, that one case might lead three courts to rule simultaneously on whether the Fourth Amendment has been violated. Whose order should be followed?

Scenarios like that show why leaving a vacancy at the Court is playing with fire. Maybe we’ll get away with it this time. Maybe nothing that can’t be put off or papered over will happen between now and whenever the Senate starts processing nominations again — say, next year. (Or maybe something will happen, and some other branch of government will decide to seize whatever illegitimate power it thinks is necessary to keep the country running.)

But an optimistic reading of the situation only works if we ignore the larger trend. This is not an isolated incident, and we will not return to “normal” after it resolves. Once broken, a norm is never quite the same. The next violation is easier, inspires less public outrage, and usually goes farther. Jonathan Chait elaborates:

It turns out that what has held together American government is less the elaborate rules hammered out by the guys in the wigs in 1789 than a series of social norms that have begun to disintegrate. Senate filibusters were supposed to be rare, until they became routine. They weren’t supposed to be applied to judicial nominations, then they were. The Senate majority would never dream of changing the rules to limit the filibuster; the minority party would never plan to withhold all support from the president even before he took office; it would never threaten to default on the debt to extort concessions from the president. And then all of this happened.

More likely than a return to the prior status quo is that blockades on judicial appointments will become just another “normal” tactic. After all, the Constitution may assign the Senate the duty to “advise and consent” on nominations, but it sets no time limit. Founding-era commentary, like Federalist 78, may envision a Court that is above politics. (The whole point of a lifetime appointment is to make any political deal with a nominee unenforceable. Once a justice is in, that’s it; he or she is beyond reprisal and requires nothing further from any elected official.) It may take for granted that the Senate will consider nominees on their individual merits, rather than on which partisan bloc chooses them. But the Founders didn’t explicitly write any of that into the rules, so …

If Hillary Clinton wins in November and Republicans retain the Senate, they may feel shamed by their promises to let the voters decide the Court’s next nominee and give her a justice. Or maybe not — maybe some dastardly Clinton campaign tactic, or reports of voter fraud on Fox News, will make them rescind their promise. The Supreme Court could remain deadlocked at 4-4 for the remainder of her term, causing federal rulings to pile up and further fracturing the country into liberal and conservative zones with dramatically different constitutional interpretations.

Conversely, if a Republican wins the White House while Democrats retake the Senate, the new Senate majority leader may decide that, rather than let Republicans reap the benefit of their new tactic, he’ll just push it further. Chait describes what either course leads to:

A world in which Supreme Court justices are appointed only when one party has both the White House and the needed votes in Congress would look very different from anything in modern history. Vacancies would be commonplace and potentially last for years. When a party does break the stalemate, it might have the chance to fill two, three, four seats at once. The Court’s standing as a prize to be won in the polls would further batter its sagging reputation as the final word on American law. How could the Court’s nonpolitical image survive when its orientation swings back and forth so quickly?

… The Supreme Court is a strange, Oz-like construction. It has no army or democratic mandate. Its legitimacy resides in its aura of being something grander and more trustworthy than a smaller Senate whose members enjoy lifetime appointments. In the new world, where seating a justice is exactly like passing a law, whether the Court can continue to carry out this function is a question nobody can answer with any confidence.

Our awareness of our dissolving norms ought to be sharpened by the current presidential campaign. Donald Trump makes a lot more sense as a candidate when you realize that he’s not running for President, he’s running for Caesar. His fans and followers are looking for that Man on Horseback who will sweep away all the rusted-over formalities and just make things work.

The Washington Post provides the following graph, based on data from the World Values Survey. It’s disturbing enough that 28% of American college graduates think it might be good to have “a strong leader who doesn’t have to bother with congress and elections”, but among non-graduates it is actually a close question: Democracy still beats authoritarianism, but only 56%-44%.

Vox has several graphs like this one, showing that frustration with democracy is increasing:

The pundits, representing an educated class that still mostly thinks democracy is a good idea, are horrified whenever Trump breaks one of the norms of American political campaigns by endorsing violence, or insulting entire religions or ethnic groups, or talking about the size of his penis during a televised debate. Yet his popularity rises, because here is a man who won’t be bound. He refuses to be tied in knots by rules or traditions or archaic notions of courtesy and honesty and fair play. His willingness to break our taboos of public speech symbolizes his willingness to break our norms of government once he takes power — not one at a time, like Mitch McConnell, but all of them at once. And lots of people like that.

Some of the biggest applause lines in a Trump speech are when he imagines exercising powers that presidents don’t have (if Ford tries to move an auto plant to Mexico, he will impose punitive tariffs until they back down), or using American military power for naked aggression (if Mexico won’t pay for the wall he wants to build, he’ll attack them), or committing war crimes (if terrorists aren’t afraid of their own deaths, he’ll have to kill their families).

Establishment Republicans are currently wringing their hands about the prospect of Trump leading their party into the fall elections. They are searching party rules for norm-bending ways to deny him the nomination in spite of the primary voters. But long-term, the way to stop Trump and future prospective Caesars is simple: Make democracy work again.

It’s not rocket science: End the policy of blanket obstruction. Pass laws that have majority support rather than bottling them up in the House or filibustering them in the Senate. Seek out workable compromises that give each side something to take pride in, rather than promoting an ideal of purity that frames every actual piece of legislation as a betrayal. Stop trying to keep people you don’t like from voting, or gerrymandering congressional districts so that voting becomes irrelevant. Come up with some workable campaign-finance system that lets legislators pay attention to all their constituents, rather than just the deep-pocketed ones.

In short, don’t just follow the rules in the most literal way possible, grabbing every advantage they don’t explicitly forbid; govern in good faith, fulfilling to the best of your abilities the duties you have been entrusted with.

They could start by holding hearings on Judge Garland, as if he were a presidential nominee and one of the most widely respected judges in the country (which he is). By itself, that may not save the Republic, but it would be a welcome gesture of good faith.

The 2016 Republican primaries, in which none of the establishment candidates seemed to understand where the real threat was coming from until it was too late, have a lesson for politicians of both parties: The most important fight of our era is not the Republicans against the Democrats, the liberals against the conservatives, or even the collectivists against the individualists. The battle we have to win is the Catos and Ciceros against the Caesars.

If the American Republic is going to survive, its mechanisms have to work. If they don’t work — if the system stays as clogged as it has been these last few years, and each cycle of attack-and-reprisal gums things up worse — then eventually someone will sweep it all away. Maybe not Trump, maybe not this year, but someone, someday sooner than you might think possible. That would be a tragedy of historic proportions, but crowds would cheer as it happened.

By weeklysift | Tagged , , , | Comments (36)

My Racial Blind Spots

March 14, 2016 – 9:19 am

What if I had to answer that debate question?

“What racial blind spots do you have?” CNN’s Don Lemon asked Bernie Sanders and Hillary Clinton.

Their answers weren’t all that impressive, and I suppose I shouldn’t have expected them to be. After all, the question resembles the standard “What is your biggest weakness?” challenge that job interviewers have been throwing at applicants forever, usually with disappointing results.

Probably nobody’s answer to Lemon’s question would be 100% accurate, because your biggest blind spots are always the ones you aren’t aware of, what Donald Rumsfeld used to call the “unknown unknowns“. If you can describe a blind spot, you’ve already taken a step towards filling it in.

So while it would be easy to stand in judgment over Bernie and Hillary’s answers, the more interesting question is: How would I answer Don Lemon? What are my racial blind spots?

Blind spots come mainly from the holes in a person’s experience, and I certainly have some. As a white person, I have been in the racial majority almost everywhere I’ve gone. I grew up in a mostly white neighborhood, went to mostly white schools, and earned my living in mostly white workplaces. In stores I (mostly) stand in line with other whites. If I find myself sitting next to a stranger at a bar, it’s usually another white. On TV dramas, I mostly watch white people deal with the problems of other white people. And on TV news shows — Don Lemon notwithstanding — I mostly watch whites interview other whites.

Being white may not be mandatory in my world, but it is normal.

I understand that not every white person’s experience is that limited. You might have been the one white guy on your high school basketball team, or the lone white waitress at a Mexican restaurant, or something like that. But I never was.

And that (lack of) experience gave me this blind spot: Thinking about race seems optional to me.

It’s not that I don’t think about race, or about the ways that non-whites’ lives are different from mine. Those sorts of issues come up all the time on this blog. I’ve written about how the Obamas’ experience in the White House has been different than other First Families. I’ve researched the racial history that my formal education swept under the rug. I wrote about Trayvon Martin and Ferguson. I’ve explained what dog whistles are, and how to notice them.

But I think about that stuff when I choose to. I have, for example, read Maya Angelou’s I Know Why the Caged Bird Sings. And while I was reading, I thought a lot about growing up black in the Jim Crow South. But as soon as I put that book down, Angelou’s reality vanished for me as completely as Westeros does when a Game of Thrones episode ends.

And so, I have a hard time grasping that thinking about race isn’t optional for American blacks. To be black in America is to be constantly aware that many of the people around you are white, and that they might at any moment start reacting strangely to your blackness.

I just finished reading Democracy in Black by Eddie Glaude Jr. Mostly it’s a book about politics written by a Princeton professor. But a few personal stories sneak in. At one point in his childhood, Glaude’s family moved from the black part of their small Mississippi town to the “good” part, a section occupied by whites and a few upwardly mobile black families. On his first day in the new neighborhood, Glaude and another boy were playing in the dirt with their toy trucks, until the boy’s father came out and yelled at his son: “Get over here. Stop playing with that nigger.”

Another story concerned Glaude’s son Langston, who he sent to Brown. Langston’s urban studies class was assigned to visit a rich Providence neighborhood and make various observations. But in a wealthy neighborhood, a young black man sitting on a park bench with a notebook draws police attention, and being an Ivy League student or the son of an Ivy League professor is no excuse. With a hand on a weapon, a policeman intimidated Langston until he voluntarily left.

You can listen to stories like that (which nearly all blacks seem to have) and think: “Those are just isolated incidents. I’ll bet that doesn’t happen very often.” But how often would it have to happen before you came to the conclusion that you had to be on your guard all the time?

Blacks can never “check out” of race. They can’t say, “Today I’m just going to be a human being and forget about being black.”

But I can forget about race whenever I want, and so sometimes it seems strange to me that they don’t. “I don’t see race,” a lot of whites say, and I know what they mean: Of course I notice that the new guy at work is black, but it’s not a thing. I’m not going to go all In the Heat of the Night on him and act like black people shouldn’t have these sorts of jobs. I’m not going to harass him or insult him or treat him badly in any conscious way. If somebody makes it a thing, it’s not going to be me.

Because that’s how my blind spot tempts me to think about race: It’s optional. I can choose not to think about being white and he can choose not to think about being black, and then there won’t be any race problem.

But the new guy can’t just stop thinking about being black, any more than I could stop thinking about being white if somebody dropped me into the middle of Africa. What’s more, he shouldn’t, for the sake of his own safety. What if, when the policeman put his hand on his gun, Langston Gaude hadn’t thought about being black, and instead had thought about being an American citizen in a place where he had every right to be? Might he not have become the next Eric Garner or John Crawford?

That’s what “the talk” is about: Making sure that when the police show up, your black son will never forget that he’s black.

If you’re black in America, you never know when your blackness is going to become an issue. And if it is becoming an issue, you’d better not be slow to catch on, because you’ll need to implement some strategy — challenge, retreat, deflect, avoid — before things get out of hand.

Of course, race wouldn’t seem optional to me if I didn’t also have a second blind spot: a belief that unconscious racism doesn’t count. If I’m not trying to be a racist, well, that should be good enough. So of course it would be wrong for me to say (or even to think) “I don’t want to hire that guy because he’s black.” But if I just have a bad feeling about him, while one of his white competitors impresses me for no quantifiable reason — what’s wrong with that? Don’t I have a right to have hunches about people?

Sure I do. But before I act on those hunches, I ought to take into account the ways my thinking and feeling have been shaped by the cultural stereotypes built up over centuries. Even today, being black in America is like playing golf on a course that is more sandtrap than fairway. Getting to the green isn’t impossible, but just about anything blacks do exposes them to negative judgment, because there’s a very narrow path between lazy and pushy, between too sloppy and too flashy, between looking stupid and being a know-it-all, between refusing to stand up for yourself and being scary. That cellphone he’s taking out of his pocket looks like a gun because … well, it just does. And when Barack Obama acts like he’s President of the United States, it looks uppity. Who does he think he is?

We may not call people niggers any more, but the stereotypes that were designed to keep niggers in their place are still with us.

But if unconscious racism is something I have to take into account, then I have to think about race all the time. And that’s another thing to project onto blacks and resent: Why do they make everything about race? Why can’t we just be people together?

There’s an answer to that, but I hate to hear it: One big reason we can’t just be people together is that I don’t know how. I know how to pretend that I’m doing it. I know how to act as if I didn’t notice race. I know enough not to use certain words or tell certain kinds of jokes. I think I know how to get past my unconscious racism with individual people, eventually, once I get to know them. (But whether that’s true or not, you’d have to ask them.)

But I don’t know how to be people together with everyone, regardless of race. All I know is how not to notice when I’m failing. I can just take all that evidence and shove it into a blind spot.

By weeklysift | Tagged | Comments (14)

Peak Drumpf

March 7, 2016 – 8:59 am

Donald Trump seems to be riding high. But the right anti-Trump message is finally getting out.

I’ll go out on a limb and say we’re at Peak Trump* here. There’s no real sign of it yet in the polls, and he may yet get a bounce out of the unpopular GOP establishment taking the gloves off against him. Even if Saturday’s voting didn’t go as well for Trump as Super Tuesday, none of his Republican rivals has any obvious path to the nomination. So it’s still possible that the GOP will stumble its way to a Trump candidacy in the fall.

Pundits have been predicting the end of Trump from the moment he announced, and so far all of them have been wrong. But I have a simple reason for believing that the threat of President Trump is finally receding: The right anti-Trump message has emerged and is starting to catch on.

The bad boyfriend. Up until now, arguing with Trump supporters has been like telling your 17-year-old daughter that her 29-year-old boyfriend is no good for her: It’s obvious to you, but everything you say just reinforces the me-and-him-against-the-world mystique that has been driving the relationship from the beginning.

So it didn’t work to laugh at the sheer absurdity of President Trump. Pointing out that he was violating all standards of political decorum — or that his facts were wrong and his proposals nonsensical — didn’t work. Being offended on behalf of Mexicans or Muslims or blacks or Jews or the disabled or Megyn Kelly didn’t work. His target supporters don’t identify with any of those groups, and Trump-supporting women probably think Kelly is a little too smart and pretty and full of herself.

Trump supporters are mostly white straight Christians — many (but not all) working class or less educated — who feel like all the trends are running against them and nobody will speak up for them. The fact that the same people who look down on them disapprove of Trump, and that Trump hasn’t been afraid to piss off all those other groups (and didn’t apologize when he was condemned for it) — that just made his supporters love him more.

You know what finally gets through to the 17-year-old? Meeting her boyfriend’s previous three teen-age girlfriends, the ones he dumped when they got pregnant. They look just like her — or at least they used to, before the single-mom lifestyle started to drag them down. Realizing that he told them all the things he’s telling her … that starts to mean something.

And that’s the message that’s emerging: Not that Trump is crude (which he is) or racist (which he is) or a proto-fascist (which he is) or unprepared for the presidency (which he is) or any of that. But he’s a con-man, and he hasn’t been conning Mexicans or Muslims or Megyn Kelly (who is too smart to fall for his bullshit). No, his career is all about conning the kind of people who support him now.

The Trump University scam. An article in Time describes the victims of his Trump University scam (who are now suing him) like this:

They seem to be middle-class or lower-middle-class people anxious about their financial situations and aspiring to do better. In other words, they are the exact group that Trump the candidate is trying to appeal to. … [Trump University] shortchanged thousands of vulnerable consumers, a large portion of whom were elderly, targeted with messages that Trump University was their ticket to avoiding spending their final years working as greeters at their local Walmart.

Trump U raked in $40 million ($5 million of which went straight to Trump) by promising that Trump would handpick mentors (“terrific people, terrific brains … the best of the best”) who would teach his “secrets” of how to make quick money in real estate. Under Trump’s guidance, you’d turn fast profits on deals that wouldn’t expose you to any risk, because somebody else would finance them. (You know: the same way Mexico is going to pay for that wall.)

In fact, the instructors had no real estate experience, had never met Trump, and their training was in how to up-sell students into ever-more-expensive courses: from free afternoon presentations to expensive weekend workshops and then to even more expensive mentorships — none of which would lead to any easy real-estate scores. Trump’s secret to gaining limitless wealth was always just over the horizon, in the next course.

the playbook [for Trump U instructors] spells out how that [weekend] session was meant to up-sell those $1,495 attendees into mentorship programs costing $9,995 to $34,995. It even uses the term “set the hook” to describe the process of luring people at the free preview session to take the three-day $1,495 course. Once their quarry was on the hook for $1,495, the message to be hammered home beginning on the second day of that program was that three days wasn’t nearly enough time to get the students out there making Trump-like deals. Only the more expensive mentorships could do that.

As in his campaign, Trump’s alleged wealth was part of the con: He didn’t need your money; he was going to give Trump U’s profits to charity. But he didn’t. (CNN also can’t figure out what happened to the money Trump supposedly raised for veterans’ charities.)

The Tampa scam. If Trump U were a unique example, Trump’s attempts to explain it away might be believable. But there’s also Trump Tower Tampa, the glorious-but-imaginary condo project pictured to the right. TTT bilked a bunch of middle-class and upper-middle-class Floridians out of their deposits –including a number of retirees who have no way to make that money back. According to Trump, the building was going to be

so spectacular that it will redefine both Tampa’s skyline and the market’s expectations of luxury.

Except he never built it. In fact, he was never going to build it. All he invested in the project was his name, which he licensed to the developers. When the project went bust in the Florida real estate crash — isn’t a real estate genius like Trump supposed to foresee things like that? — he walked away with his licensing fees ($3 million and a lawsuit that claimed he should get another million) and lost nothing.

But his insulation from any possible loss wasn’t revealed to the buyers before they signed their contracts. Quite the opposite.

At a gala reception attended by 600 dignitaries and well-heeled guests, Trump continued to give the impression that he was actively involved in the project. He had a “substantial stake,” he told reporters, and would have increased it but for the fact that the tower was selling so well.

When the project went bankrupt without having built a single condo, the big losers were the people who had trusted the Trump name enough to put down deposits. Jay Magner, the owner of a dollar store, says:

I lost $130,000. I didn’t know people could take your money and not build the building.

Jay McLaughlin, a physical therapist from Connecticut, also lost his money:

The main reason we went into this was Trump. We had no idea he was just putting his name on it and not backing it financially.

The Baja scam. The same story played out with the Trump Ocean Resort Baja Mexico, south of Tijuana. It was supposed to be a luxury resort with a view of the Pacific. Trump licensed his name to the project, and marketed it as if the whole idea had been his to start with. With his help, the developers collected millions in deposits, mostly from Californians. But when it went bust, Trump told a different story to the LA Times:

Trump told The Times that the developers were to blame, saying he merely licensed his name to the 525-unit oceanfront project and was not involved in building it.

Maybe the condo buyers would have wanted to know that fact before they plunked down their money. And those blameworthy developers — shouldn’t a real estate genius like Trump be vetting those guys? Isn’t that precisely the kind of thing the Californians dreaming about their Trump oceanfront condos were trusting him to do?

Do you think he told them that he knew nothing about the developers other than the fact that they paid him money? Or did he claim that they too were “terrific people, terrific brains … the best of the best”?

And you know how Trump claims he never settles lawsuits? He settled that one. Lawyers for his victims said they were “very pleased with the outcome”.

There is no you-and-Trump, except in your mind. That’s the message that is eventually going to get through to Trump’s supporters: It’s not you-and-him against the world. In reality, there is no you-and-him against the illegal immigrants who want to steal your job, against the Muslim terrorists who want to kill you, against the Republican establishment that’s been selling you out, or against the politically correct liberals who keep calling you a bigot. It’s not even you-and-him against the Megyn Kellys who wouldn’t go out with you in high school, or who got to be cheerleaders when you didn’t.

That 50-foot wall between us and Mexico, or the trade deal that will bring all those jobs back from China, or the deportation force that will round up 11 million undocumented immigrants and send them back to Mexico — those are like the luxury condos in Tampa and Baja, or the real estate profits that Trump U graduates were supposed to start making. They’re fantasies he dangles that will never manifest in reality. Afterwards, when you remember how few details he gave you and how quickly he changed the subject whenever anybody tried to get those details, you’ll wonder why you ever believed in them.

That’s how it is when you get conned.

You-and-him is a fantasy he’s happy to let you believe in until he gets what he wants. Then he’ll be on to his next scam, and the marks in that scam will look a lot like you — just like the marks in his previous scams look a lot like you.

The wrong arguments. The stories of Trump’s previous cons have been out there for a while, but they’re only beginning to get the attention they deserve. Up until recently, Trump’s rivals had been ignoring him while they maneuvered towards a 1-on-1 match-up they believed they’d win, while his critics had focused on his apparent political weaknesses — his basic ignorance of anything related to public policy, his loose relationship with the facts, his conservative apostasy, his bigotry, and his un-presidential temperament.

What those critics didn’t appreciate was that Trump’s supporters share a lot of those weaknesses. Denigrating Trump also denigrated a lot of his target audience, and bound them closer to him. If he’s stupid, then they’re stupid — and they’re sick of being called stupid.

Even less effective were the articles written by people who are afraid of Trump. Trump’s target audience are people who feel small and ignored. But if Trump inspires fear, then identifying with Trump lets them experience the thrill that people are afraid of them. What could be more appealing?

Donald Drumpf. But now critics are starting to realize that you have to take out Trump’s apparent strengths. That’s the essence of John Oliver’s amazing takedown. Oliver shows clips of Trump fans enthusing about their hero: He tells it like it is. He says what he means. He’s telling the truth. He’s funding his own campaign. He’s strong and bold. He’s a great businessman.

And then Oliver systematically pops all those bubbles. The Donald Trump we think we know is the “mascot” for the Trump brand, which is a triumph of marketing and image-making over reality.

Oliver reviews the scams I detailed above, and closes by exploding the hype of the Trump brand: It’s not even really his family’s name. Generations ago, an ancestor changed it from Drumpf, which Oliver describes as “the sound made when a morbidly obese pigeon flies into the window of a foreclosed Old Navy.”

Drumpf is much more reflective of who he actually is.

So if you are thinking of voting for Donald Trump, the charismatic guy promising to make America great again, stop and take a moment to imagine how you would feel if you just met a guy named Donald Drumpf, a litigious serial liar with a string of broken business ventures and the support of a former Klan leader who he can’t decide whether or not to condemn.

Would you think that he would make a good president, or is the spell now somewhat broken? And that is why tonight, I am asking America to make Donald Drumpf again.

Oliver has acquired the web site donaldjdrumpf.com, where you can buy this attractive hat.


Even Romney. Mitt Romney has always been a little tone-deaf, and I doubt Donald was quaking with fear when Mitt announced he would speak out. But even his unprecedented denunciation of Trump (skip the first 2:30 of the video, or just read the transcript) — when was the last time a party’s most recent nominee publicly denounced its current front-runner in such vitriolic terms? — eventually found the right note:

But you say, wait, wait, wait, isn’t he a huge business success? Doesn’t he know what he’s talking about? No, he isn’t and no he doesn’t.

Look, his bankruptcies have crushed small businesses and the men and women who work for them. He inherited his business, he didn’t create it. And whatever happened to Trump Airlines? How about Trump University? And then there’s Trump Magazine and Trump Vodka and Trump Steaks and Trump Mortgage. A business genius he is not.

… I predict that despite his promise to do so, first made over a year ago, that he will never ever release his tax returns. Never — not the returns under audit; not even the returns that are no longer being audited. He has too much to hide.

… Here’s what I know. Donald Trump is a phony, a fraud. His promises are as worthless as a degree from Trump University. He’s playing the members of the American public for suckers. He gets a free ride to the White House and all we get is a lousy hat.

I’ll add this to Romney’s point about Drumpf’s taxes: He won’t release them because they’ll prove he’s not as rich as he says he is. That’s part of the scam too.

Suckers. The right response to a Trump supporter isn’t to show fear or get angry or paternalistically explain what the facts actually are or how the world really works. The right response is pity: You poor sucker.

Identifying with Donald Trump isn’t making his fans look strong. It’s showing everybody just how weak and foolish they are. This obvious flim-flam man has taken advantage of their insecurities, and is conning them the way he has conned so many people like them in the past.

Those poor suckers. They think Trump is standing up for them. But nobody is laughing at them harder than he is.

* While doing the final edit on this post, I discovered George Will is also talking about “Peak Trump“. Given Will’s record as a seer, that gave me a moment of doubt. But I’m sticking with my prediction.

By weeklysift | Tagged | Comments (47)

Trump is an opportunistic infection

February 29, 2016 – 8:34 am

For decades, the GOP has been killing off its demagogue-detecting and bullshit-rejecting antibodies. Now it’s helpless.

As Donald Trump moves ever closer to their party’s nomination for president, many Republicans are trying to understand or explain what has happened. Various metaphors have been thrown around: It’s a “hostile takeover“, or a “class war“, or a “populist uprising“.

Here’s a more accurate comparison: Trump is like the opportunistic infections that attack people whose immune systems have been compromised. A healthy political party could have thrown off Trump’s candidacy with barely a sniffle, but today’s GOP is in grave danger.

Over the last few decades, the Republican Party has been systematically destroying all the habits and mores and traditions and standards that keep a political party stable and allow it to play a constructive role in governing a great republic like the United States. Those things function like antibodies: They may be invisible to the naked eye, but they head off outbreaks of all sorts of destructive nonsense.

Now they’re gone, and Donald Trump is running wild.

How did this happen? For years now, the Republican Party has increasingly been winning elections (at every level short of the presidency) by misinforming voters and appealing to their darker passions. It has pandered to believers in baseless theories like Birtherism and the gun-confiscation conspiracy, while ridiculing the scientific community’s warnings about climate change. It has claimed that racism is a thing of the past — “things have changed dramatically” John Roberts claimed while striking down the heart of the Voting Rights Act — and that the only real bigotry today is “political correctness” and discrimination against whites and Christians.

Rather than change its own plutocratic policies, the GOP has scapegoated undocumented immigrants for working-class impoverishment. (If you’ve been losing at poker and wonder if someone’s been cheating you, don’t accuse the Mexican who’s been sweeping the floor. Look at the guy with all the chips.) It has pushed self-serving economic fantasies like “tax cuts pay for themselves” and biological fantasies like the female body “shutting down” to make pregnancy-by-rape impossible. It has looked the other way while hucksters and con-men fleeced its faithful. It has struck down any traditional notions of fair play; beating Obama has been the important thing, and only wimps appeal to gentlemanly traditions and rules of decorum. (If it’s OK to yell “You lie!” during the State of the Union, what’s wrong with endorsing a shout-out that Ted Cruz is a pussy?)

In short, the GOP has devolved from the Party of Lincoln — or more recently the Party of Eisenhower — to  the Party of Truthiness. (Truthiness, coined by Stephen Colbert, is the seductive notion that what your gut wants to believe must be true, independent of any facts or science or expert opinion.) The result is that the party’s base has no immune system that would reject a candidate like Trump.

All the weapons another candidate might use to take Trump down have been systematically dismantled. Are his “facts” wrong? Mitt Romney already burned that bridge in 2012. Do experts say his proposals are nonsense? There are no experts any more; if you feel a need for expert support, go invent your own experts like the Koch brothers and right-wing Christians do. Are his speeches full of racist dog-whistles? Politically correct nonsense! Racism ended in the 60s, except reverse-racism against whites. And if Republicans had to expel anybody who dog-whistled about Obama, there’d be no party left. Are there echoes of fascism in his giant rallies and cult of personality? In his celebration of real and imaginary violence against hecklers? In his fear-mongering about unpopular ethnic or religious groups? In his implication that specific policies are unnecessary, because all will follow from installing a Leader with sufficient Will? More nonsense: There is no fascism any more, unless you mean liberal fascism or Islamofascism.

With all the legitimate arguments of political discourse unavailable, other candidates were left to fight each other and wait for Trump to go away. And when Marco Rubio recently decided he finally had to take Trump on, the only weapon at hand was to tease him like a third-grader, suggesting that he wet his pants during a debate.

While many “establishment” Republicans fruitlessly look for a miracle drug to cure Trump fever without also taking down Cruz, Rubio, and half their Senate candidates, others are beginning to surrender. It’s just one election; maybe it won’t be so bad.

But this is where the compromised-immune-system analogy has something to teach: People whose immune systems have been crippled by AIDS or chemo-therapy seldom catch just one disease. Even if some massive dose of political antibiotics could flush Trump out of the Republican system, the underlying problem is still there: The Republican base cannot detect and reject hucksters. It cannot tell fact from fantasy. It values posturing and bombast over the skills necessary to govern a republic. It seeks scapegoats rather than solutions. It winks and nods at racism and white entitlement.

As long as that remains true, new Trumps will arise in 2020 and 2024, and any qualified Republican candidate offering real solutions will be defenseless against them. The Republican Party doesn’t just need to find a way to deal with Donald Trump. It needs rebuild its immune system.

By weeklysift | Tagged , | Comments (27)

The Apple/FBI question is harder than it looks

February 22, 2016 – 8:55 am

Nothing about the Apple vs. the FBI showdown is as clear-cut as it initially appears.

There’s a way of telling the story that makes Apple sound completely unreasonable, and could even justify Donald Trump’s call to boycott the company: The FBI needs to get information off the iPhone of one of the San Bernardino terrorists (Syed Rizwan Farook), so that it can check whether there are additional conspirators or direct operational links to ISIS. The only damage in the FBI having that information is to the privacy of a dead terrorist. But Apple is fighting a court order that instructs the company to help the FBI, in a case that could well wind up at the Supreme Court. Senator Tom Cotton draws this conclusion:

Apple chose to protect a dead ISIS terrorist’s p‎rivacy over the security of the American people.

Sounds pretty bad. But that story falls apart in a bunch of ways. First, CNN’s national security analyst Peter Bergen argues that the information on that particular phone is probably not all that important.

What might be learned from Farook’s iPhone? Of course, we don’t know, but it’s likely that it wouldn’t be much beyond what we already know from the couple’s Facebook postings, their Verizon phone account, their computers seized by police, the evidence found at their apartment complex and the fulsome confession of their friend Enrique Marquez, who allegedly provided them with the rifles used in their massacre and also allegedly knew of their plans to commit a terrorist attack as early as 2012.

No evidence has emerged that Farook and his wife had any formal connection to a terrorist organization, and the plot involved only the couple and the alleged connivance of Marquez. What might be found on Farook’s iPhone therefore is more than likely simply only some additional details to buttress the overall account of what we know already.

Bergen thinks the FBI is pushing this case purely to establish a precedent for future cases. In public-relations terms, Farook is the least sympathetic target the FBI is likely to get, so why not have the public battle here?

He notes that Apple’s side of the argument is not so clear-cut either: Apple has cracked iPhones for the government many times in the past, and responds to court orders concerning iPhone data that has been backed up to iCloud. So what great principle are they standing on?

These revelations suggest the possibility that the facts of this particular case aren’t as important as the larger principles at stake and that both Apple and the U.S. government are using the San Bernardino case as something of a test of the question: Should tech companies give the FBI any kind of permanent backdoor?

And then things get technical: What’s different about this iPhone (as opposed to the ones Apple has previously made available to the government) is that it’s a more recent version, the 5C, whose security features Apple touted. So Douglas Rushkoff sums up what the FBI wants of Apple:

They’re saying, “We want you to reveal that the promise you made about this phone turns out not to be true.”

In an open letter to its customers, Apple emphasizes that it isn’t breaking faith with them:

For many years, we have used encryption to protect our customers’ personal data because we believe it’s the only way to keep their information safe. We have even put that data out of our own reach, because we believe the contents of your iPhone are none of our business.

Summing up a few of the technical details: Apple doesn’t have the information on Farook’s iPhone, doesn’t have his passcode, and doesn’t have a software tool that recovers the data without the passcode. What, then, could Apple do for the FBI? One security feature of recent iPhones is that the data on an encrypted phone is wiped if an incorrect passcode is entered 10 times in a row. This prevents breaking into a phone by what is called a “brute force” approach, where you connect the phone to another computer that just runs through all possible passcodes. (If we’re talking about the typical 4-digit iPhone passcode, that’s only 10,000 possibilities, which wouldn’t take very long. I’ve seen estimates varying from half an hour to an hour.)

What the court has ordered Apple to do is provide the FBI with what is basically a software patch to circumvent that auto-erase feature. Once they have that, the FBI can crack the phone.

Apple’s response is that it has never written such software, and it doesn’t want to.

The FBI may use different words to describe this tool, but make no mistake: Building a version of iOS that bypasses security in this way would undeniably create a backdoor. And while the government may argue that its use would be limited to this case, there is no way to guarantee such control.

In other words, there won’t be any way to un-ring that bell: Once Apple has software that circumvents its security features, what happens to that software after the FBI has Farook’s data? At a minimum, it’s available to court orders in future cases. And if it’s available to American court orders, why couldn’t it be available to Chinese court orders? Or Iranian court orders? The principle that protects a terrorist today could protect a dissident tomorrow. And if Apple doesn’t stand on a principle, it becomes a kind of court itself, deciding case-by-case which governments deserve its help in which situations.

Worse yet, what happens to the security-circumventing software after this case? What if Apple’s internal security fails, and the software (or enough hints to allow some hacker to reproduce the software) gets out? It could even wind up in the hands of terrorists who decrypt information that helps them plan some future attack.

That’s how you wind up with a story where Apple is the hero: They’re bravely fighting to maintain our privacy. That’s how Edward Snowden put it in a tweet:

The is creating a world where citizens rely on to defend their rights, rather than the other way around.

But Douglas Rushkoff is skeptical of that story too.

It would be a mistake for people to think of this as “The People” against government security. That’s a ruse. Really, it’s the world’s biggest corporation versus the world’s most powerful military. That’s what we’re looking at.

And while I do believe that we people should defend our right to privacy, I don’t see the individual’s right to military-grade encryption. I see Visa companies, or Bank of America’s need to use it on my behalf, if Chinese hackers are using it to buy condoms on my Visa card…

For me to have something that the full focused attention of the Pentagon – which I’m sure is involved – and the FBI… To have something that they can’t break into… Imagine a real-world metaphor for that. “Oh, you’ve got a lock in your house that’s so powerful that if they brought the freakin’ army, and tanks, they couldn’t get in?”

There is certainly an economic angle here: The big tech companies — Apple, Google, Microsoft, etc. — were deeply embarrassed when Snowden revealed how complicit they all were in the NSA’s legally and morally dubious snooping on people who had done nothing to draw suspicion to themselves.

In that sense, Apple’s position (supported by Google and some other tech companies) is a sort of repentance: We have sinned in the past, but we have seen the light now and will sin no more. But the issue isn’t moral, it’s market-based: We need customers to believe we’re on their side, rather than the side of the government that wants to spy on them.

And finally, there’s a technological-inevitability angle on this: If more-or-less unbreakable encryption is possible at a price people are willing to pay, someone will provide it. (In response to Rushkoff: I don’t really need a lock and a door that tanks couldn’t break through, but if I could cheaply get one, it might be tempting.) If the U.S. government won’t let American companies provide those secure products, then they’ll be made in other countries.

So the United States can’t really stop that industry, it can just give it to some other country.

So that’s where I end up: siding with Apple in this specific case, but not making a hero out of Apple CEO Tim Cook. Right now, market forces put Apple on the side of personal privacy. Meanwhile, the FBI is trying to order the tide back out to sea. Law enforcement would do better to start adjusting to the future now.

DISCLAIMER: I don’t think this is affecting my view — I believe I’d feel the same way if Microsoft were taking a similar stand — but I should mention that I own Apple stock, as well as various i-gadgets. However, I am not currently using my iPhone’s encryption capabilities to hide any illegal activities.

By weeklysift | Tagged , | Comments (21)