Liberal Media, Conservative Manipulation

One of those facts “everybody knows” is that journalists are liberal. It’s even true up to a point. (Actually, it’s more accurate to say that very few journalists identify as conservatives. 53% call themselves moderates, so the typical journalistic duo is not exactly Marx and Engels.)

But in spite of Sarah Palin’s fantasies of persecution by the “lamestream media”, coverage often tilts in the opposite direction. When conservatives want something like ClimateGate or the ACORN pimp video to become a national story, it usually does, whether it deserves to or not. When public opinion differs radically from the facts — believing, say, that climate scientists are more-or-less evenly divided on global warming, that Saddam was involved in 9-11, or that Al Gore claimed he invented the internet — the error is usually in the direction pushed by conservatives.

It’s hard to see how that could happen unless actual coverage slanted to the right.

Just last week, I gave numerous examples of right-slanted coverage: Unprovoked police attacks on nonviolent Occupy protesters have been covered “even-handedly” (police and protesters “clashed” like mismatched colors) or passively (“mayhem broke out”).

So how does that work? How do left-leaning journalists regularly produce coverage that leans right? Recently, Grist’s David Roberts has written some excellent posts documenting how media bias works against environmentalists. But before we get into that, let’s back up a little: What does it even mean for coverage to slant one way or the other?

The Hallin Sphere Model. “Media bias” usually makes liberals think of the everyday trickery on Fox News. (Recently, Fox labelled  would-be Obama-assassin Oscar Ramiro Ortega-Hernandez “the Occupy shooter” even after police said he had no connection to the Occupy protests.)

I don’t want to minimize the impact of such in-your-face propaganda. (For example, repetition has inured us to hearing President Obama described as “socialist” or even a “Marxist”. It doesn’t raise the kind of ire conservatives felt when President Bush was called a “fascist”.) But the more serious damage is done subtly in mainstream outlets like CNN or the New York Times — news sources that allegedly form “the liberal media”.

A useful way to think about news coverage in general comes from Daniel Hallin’s 1986 Vietnam book The Uncensored War. Hallin says that a factual claim can be reported in one of three ways: as the consensus of knowledgable people, as a controversy that reasonable people might disagree about, or as a deviant claim believed only by a lunatic fringe. Schematically, it looks like this:

A claim in the Sphere of Consensus can be reported as a simple fact, in the journalist’s own voice, without offering a contrary view. So a news story would say “Water runs downhill”, not “According to many scientists, water runs downhill” — balanced later by a quote from an anti-water-runs-downhill spokesman.

But claims in the Sphere of Controversy call for that kind of balance; the reporter should not take sides. So a news story should not say that Obamacare’s individual mandate either is or isn’t constitutional. The reporter should describe arguments made on each side and say that the Supreme Court will rule by June.

Finally, claims in the Sphere of Deviance can be rejected outright in the reporter’s own voice, or just ignored. So an American news story about Al Qaeda will probably not consider that the jihadists might be the good guys. Some people actually hold that view, but they are deviant; they can be ignored.

The boundaries. Politically, it’s very important what claims end up in what spheres.

For example, former Louisiana Governor Buddy Roemer is running for the Republican nomination for president. He’s the only candidate in either party making a serious attack on the dominance of money in politics. But only true political junkies know that, because Roemer’s whole campaign is happening in the Sphere of Deviance. He gets no mainstream coverage and doesn’t appear in televised debates. It’s self-justifying: He gets no coverage because “he can’t win”, and he certainly can’t win if he gets no coverage.

During the health care debate in Congress, no congressperson had to explain why his/her plan was better than a single-payer system, because single-payer was in the Sphere of Deviance.

On its merits, the claim that the planet is getting hotter should be in the Sphere of Consensus and the claim that it isn’t in the Sphere of Deviance. It’s a measurement, not an opinion. But somehow both usually wind up in the Sphere of Controversy.

In short, if you want to bias your coverage, outright lying and distortion is a ham-handed way to do it. It’s much cleaner and more effective to slot claims into the spheres that serve your interests.

Process. Who makes these decisions and how? Journalism professor Jay Rosen believes that it’s an unconscious group process among journalists. They just “know” what is news, what isn’t, and what kind of news it is. Sphere placement is

an intrinsic part of what [journalists] do, but not a natural part of how they think or talk about their job. Which means they often do it badly. Their “sphere placement” decisions … are often invisible to the people making them, and so we cannot argue with those people. It’s like trying to complain to your kid’s teacher about the values the child is learning in school when the teacher insists that the school does not teach values.

No Curia or Politburo holds hearings or announces its rulings. The press makes these decisions collectively, as “an unthinking actor, which is not good”.

Manipulation. As advertisers have long known, people who make unconscious decisions are open to outside manipulation. Maybe “we cannot argue with those people”, but that doesn’t mean that they’re beyond influence by other means.

A year and a half ago I told you about a Kennedy School study documenting that the claim “waterboarding is torture” abruptly moved from the Sphere of Consensus to the Sphere of Controversy in 2004. In 2003, a reporter could have blithely written “Waterboarding is torture.” But a 2004 reporter could only say “Critics claim waterboarding is torture.”

How did that happen? I summarized several sources:

Waterboarding-as-torture didn’t become “contentious” because some new information threw previous judgments into doubt. It became contentious because an interested party — the U.S. government — started contending against it in defiance of all previous objective standards.

In short, journalists didn’t change their ideology or even rethink the specific issue of waterboarding. Instead, outside pressure manipulated their unconscious groupthink about what is controversial.

David Roberts vs. the mainstream press. In recent months, Grist’s David Roberts has been contrasting mainstream reporting of two environmental stories:

  • The Solyndra bankruptcy, which is being widely covered as a “scandal” in spite of the fact that nothing actually scandalous has yet been uncovered. Also, the loss to the public is purely financial and fairly small by U.S. government standards — a half billion dollars.
  • The proposed Keystone XL Pipeline, which promotes the use of tar sands (the most carbon-intensive of fossil fuels) and endangers ground water sources in our agricultural heartland. Environmentalists have been using everything from blogs to civil disobedience to get this story out, but it hasn’t really taken off.

Roberts comments:

Solyndra and Keystone XL are real things in [a real world], not just dueling narratives. And by any conceivable metric — energy, money, pollution, corruption — Keystone XL is a much more significant phenomenon. Solyndra was a bum loan that will be forgotten within a year as the solar industry continues its explosive growth. Keystone XL is a huge, dirty, expensive pipeline that would run down the middle of the country; it’s being pushed through via a rigged process; and its consequences for our energy system and our climate will last for decades.

Zeroing in specifically on Politico’s handling of the stories, he observed:

Republican talking points are delivered as first-order news. Liberal talking points are wrapped in meta-news about liberals and their talking points.

A few weeks later Roberts isolated a classic example of this pattern from a New York Times story about the EPA’s thwarted attempt to implement higher smog standards:

Environmental and public health groups challenged the Bush standard in court, saying it would endanger human health and had been tainted by political interference. Smog levels have declined sharply over the last 40 years, but each incremental improvement comes at a significant cost to business and government.

So the NYT presents the claim that smog endangers human health as something environmental groups say (Sphere of Controversy), and the claim that decreasing smog involves significant costs as a simple fact (Sphere of Consensus).

But the merits of the two claims are exactly reversed: It’s a provable fact that smog endangers public health, while the net economic impact of higher smog standards is debatable. (Increased costs at the smokestack are balanced by fewer sick days and higher productivity, not to mention that everything in our cities corrodes more slowly.)

That’s media bias in action. But does it happen because Politico and NYT reporters are ideologically anti-green? I suspect not.

Money buys controversy. Like the waterboarding example, environmental issues become “contentious” not because new information throws them into doubt, but because powerful actors contend against them.

In some sense this is not new: Public relations is the science of manipulating the press, and it is at least a century old. But reporters have long known to take official PR releases with a grain of salt. So when American Tobacco insisted that Lucky Strikes didn’t cause cancer, that by itself didn’t make the claim controversial.

Tobacco-causes-cancer, though, was the end of one era and the beginning of another. As outlined in the books Doubt Is Their Product and Merchants of Doubt, the Tobacco Institute and the academic research it funded was the beginning of whole new layer of corporate PR infrastructure.

Today, when you read a “balanced” story about climate change, you are probably hearing the voice of Exxon-Mobil, disguised as an “independent” researcher for an “independent” institute at some university. The economics professor quoted in an article about the deficit might have been hired directly by the Koch brothers or the bank holding company BB&T. The article will not tell you this, and the reporter may not even know. (In an era of massive newsroom lay-offs, who has time to trace the funding of everyone he quotes?)

Simultaneously, corporations and the billionaires who own them have been creating a unified pro-capitalist information infrastructure — Chamber of Commerce, American Enterprise Institute, Heritage Foundation, etc. — as envisioned by the famous Powell Memo of 1971. They have also achieved a vastly higher degree of message discipline within the Republican Party’s elected officials, and established an ideological media empire around Fox News, Rush Limbaugh, the Washington Times, the Wall Street Journal, and other outlets.

The result is what conservative-in-exile David Frum calls “an alternate reality”.

Backed by their own wing of the book-publishing industry and supported by think tanks that increasingly function as public-relations agencies, conservatives have built a whole alternative knowledge system, with its own facts, its own history, its own laws of economics.

And so blatant absurdities are now “controversial” simply because the conservative power structure chooses to assert them: Tax cuts raise revenue. Budget cuts that lay off teachers and cancel public works projects create jobs. White Christian Americans are the real victims of discrimination. Poor people and government regulators created the economic collapse. The Founders intended the Bill of Rights to apply to corporations.

Conversely, if the threat of unlimited corporate campaign spending and smearing by the conservative media empire can cow Democratic leaders into silence, the Sphere of Consensus can be expanded to include any number of shaky ideas, and their alternatives can be consigned to the Sphere of Deviance: Taxing the rich is politically impossible. Social Security is going bankrupt. The EPA costs jobs. Everyone (except the wealthy) needs to sacrifice. We can’t afford a social safety net any more (but we could afford a new war with Iran). And so on.

These ideas move from one sphere to another not because reporters have become more conservative, but because external power has changed their perceptions of which claims will be contested and which won’t.

What can liberals do to counter? Although we don’t dare abandon any battlefields completely, we can’t hope to beat the corporations financially and institutionally. And that’s why we have to be in the streets (and conversely why the Powers That Be smear and intimidate the people who are). When reporters are told that “everybody knows” one thing and “nobody really believes” something else, large numbers of ordinary people have to make it obvious that those claims are wrong.

November 28, 2011 – 1:20 pm Categories: Articles | Comments (17)

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Where Occupy Goes Next and other short notes

With winter coming and mayors prepared to unleash the police as ruthlessly as they can get away with, debate has turned to where the Occupy movement goes next.

Partly this is about constructing an agenda. (Michael Moore’s seems fairly typical.) But Glenn Greenwald writes:

I disagree with the prevailing wisdom that OWS should begin formulating specific legislative demands and working to elect specific candidates. I have no doubt that many OWS protesters will ultimately vote and even work for certain candidates — and that makes sense — but the U.S. desperately needs a citizen movement devoted to working outside of political and legal institutions and that is designed to be a place of dissent against it.

while Julian Sanchez disagrees:

protest, however vital as a consciousness raising tool, can only be a preparation for the more humdrum enterprise of convincing your neighbors with sustained arguments (or being convinced yourself), electing candidates, and all the rest. To imagine protest not as prologue to politics, but as a substitute for it, suggests a denial of the reality of pluralism, and an unwillingness to find out what democracy actually looks like.

Some Democratic politicians would like Occupy to raise enthusiasm for them the way that the Tea Party has for the Republicans, but movement activists are wary of being co-opted. Van Jones is recruiting (presumably Democratic) candidates “to run under this 99% banner“, provoking Occupy DC’s Kevin Zeese to write “Van Jones Can’t Occupy Us“.

Cenk Uygur has announced Wolf-PAC as a vehicle for pushing not candidates but issues like a constitutional amendment against corporate involvement in politics.

Mitt Romney’s first ad of this cycle quotes President Obama as saying: “If we keep talking about the economy, we’re going to lose.”

The problem: Obama was quoting a John McCain aide in 2008, not talking about his own 2012 campaign.

A Rick Perry ad quotes Obama as saying, “We’ve been a little bit lazy I think over the last couple of decades.” Perry replies: “That’s what our president thinks is wrong with America? That Americans have gotten lazy?”

And Romney piles on: “[Obama] said that Americans are lazy. I don’t think that describes Americans.”

The problem: Again, context. The fuller Obama quote makes it clear what he means: Previous administrations have been lazy about trying to attract overseas investment in the U.S., and he’s trying to correct that in his administration.

Well, if that’s how the game is played now, let’s play it. ThinkProgress assembles a collection of Mitt Romney “quotes”.

This speaks for itself:

And this (the world’s lightest material) is just cool:

Does it seem to you that conservatives have the advantage in the scurrilous-viral-email department? They do.

The U.C. Davis pepper-spraying cop has become an iconic image. A whole tumblr is devoted to photo-shopping him into all the other iconic images.

I’m becoming a fan of Noah Smith’s economic blog Noahpinion. This article raises an interesting thought: What if the values conservatives claim to love (hard work, individual responsibility, etc.) are promoted better by a liberal welfare state than by a conservative dog-eat-dog utopia?

November 28, 2011 – 1:18 pm Categories: Short Notes | Comments (5)

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Listen Local

Southern New Hampshire isn’t exactly New York or Seattle when it comes to the local music scene, so I was impressed and very pleasantly surprised Saturday at the Nashua Holiday Stroll.

Every year on the Saturday evening after Thanksgiving, Nashua shuts down Main Street  and turns it into a big open-air festival, with several music stages, ice sculptures, your typical festival fried-dough vendors, and local shops staying open to hand out freebies of one sort or another.  It’s supposed to remind everybody that we really do have a downtown, so you aren’t absolutely required to do your Christmas shopping at the big box stores on the outskirts.

It’s only two blocks from my apartment, but somehow I’ve managed to miss it the last couple years. I had gotten it into my head that the entertainment was pleasant, but not all that interesting — mainly traditional music of one genre or another, with a pop cover band or two thrown in for the teen-agers.

And, like many middle-aged folks, I had lost touch with the kind of bands you might hear in local bars and clubs. It’s a vicious cycle. If you don’t go, you never find out who these bands are, so nothing strikes you even when you do think to check an event calendar.

Two birds, one stone. This year’s Stroll featured a bunch of young local bands doing original music: Sitting Ducks, Merrimack, Matt Jackson, Tom Flash, Mild Revolution — and I’m sure I missed a few. Again and again, my wife and I said to each other, “I’d go out to hear these guys.”

Which brings me to this week’s challenge: Find out something about your local music scene. The logic behind Listen Local is the same as Eat Local and Shop Local: I’ve got nothing against Lady GaGa, but even if you buy her album at a local music store, most of your money whisks out of the community so fast it doesn’t even wave.

Being a fan of a local band is a real face-to-face relationship that builds other face-to-face relationships. Every local band that succeeds inspires countless younger musicians and strengthens a culture of creativity. And your money stays home. Local musicians are likely to spend your money locally, so some of it may even come back you.

Use the comments to give a shout out to local musicians you enjoy, wherever you are.

November 28, 2011 – 1:13 pm Categories: This Week's Challenge | Comments (2)

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Refraining From Violence

I want to be very clear in calling upon the Egyptian authorities to refrain from any violence against peaceful protesters. The people of Egypt have rights that are universal. That includes the right to peaceful assembly and association, the right to free speech, and the ability to determine their own destiny. These are human rights. And the United States will stand up for them everywhere.

— President Barack Obama,
January 28, 2011

In this week’s sift:

  • Now Look What You Made Me Do. When police attacked peaceful protesters in cities around the country this week, the media’s unwillingness to “take sides” insured that Middle America would blame the protesters.
  • Will the Court Throw Out Obamacare? The Supremes will rule on the Affordable Care Act’s constitutionality sometime between now and June. Two conservative appellate judges just gave us a preview of what they might do.
  • Paterno and the Bishops. Comparing the Penn State scandal to the Catholic Church scandal, it’s clear that the public attitude towards sexual abuse has changed.
  • Last (two) week’s most popular post. Jobless Recoveries Are Normal Now had 322 views.
  • This week’s challenge. At your church, business, club, or other institutions, raise this question: Where do we do our banking? Many institutional accounts might be ineligible for credit unions, but could your institution move to a local bank more likely to keep your money in the community?

The length of this week’s main articles crowded out Short Notes. As compensation, I offer this amazing photo from Iceland: The full moon illuminates a waterfall, the moonlight creates a rainbow in the spray, and between the foreground of the bow and the background of the starry night sky shine the Northern Lights.

As the Christmas carol says: “O, that we were there.”

November 21, 2011 – 1:18 pm Categories: Weekly summaries | Comments (2)

Now Look What You Made Me Do

The last two weeks have seen a widespread violent crack-down on non-violent protesters, the like of which has not occurred in the United States in many years. So far the police have been using non-lethal weapons like pepper spray, rubber bullets, tear gas, sonic cannons, and the old-fashioned nightstick, so there is not a body count to report. But the difference between this suppression of dissent and the ones in Cairo that President Obama denounced as far back as last January is largely of degree and not of kind.

You would not suspect this from the coverage in the mainstream American media, which has been doing it’s usual even-handed he-said/she-said thing. Protesters “clash with police” reports the New York Times, not specifying that protesters’ eyes clashed with police pepper spray or that protesters’ heads and stomachs clashed with police nightsticks. “Violence erupted” said New York Magazine, as if violence were some volcanic process independent of human decisions.

AllVoices anchor Veronica Roberts reported that Iraq veteran Scott Olsen suffered a fractured skull “after he was caught in the violence that erupted between police and protesters”. Olsen was not “caught” in anything; he was protesting peacefully when police shot him in the head with a tear gas canister (perhaps intentionally). (He may have suffered brain damage and was still unable to speak several days later.)

(Even this morning’s NYT article about the coverage of Occupy Wall Street says nothing about the coverage of police attacks. The Times seems unaware that there could be an issue here.)

But this shouldn’t be a contest between my rants and the rants on Fox News. The only way to appreciate what is going on is to look at the pictures and watch the video for yourself. In this video, the camera-holder is slowly walking parallel to (and maybe 60 feet away from) a line of unthreatened Oakland police when one of them decides to shoot him with a rubber bullet — apparently just because he can.

Here, a UC Davis policeman calmly pepper-sprays students who are sitting on the ground, immobile. Other police watch and do nothing.

BTW, you should see how this incident ends: Starting at about the 5 minute mark, the police see that the crowd is neither retreating nor attacking, and they start to lose their spirit and look confused. Using the human mic device, a protester invites them to retreat, and they do, leaving the quad in control of the protesters. It’s a stunning example of how nonviolence works.

At UC-Berkeley, students are peacefully behind a line of police who suddenly start using their nightsticks.

Here, a young woman with her hands at her sides, surrounded by people armed with nothing more than cameras, is pepper-sprayed in the face by police in riot gear. The LA Times reports the incident in he-said/she-said terms: “Occupy Portland organizers allege law enforcement took an inappropriate and heavy-handed approach.”

In Seattle, police pepper-sprayed this 84-year-old former school teacher. Local TV news even-handedly reported that “mayhem took place” and “chaos erupted in downtown Seattle”.

Retired Philadelphia police captain Ray Lewis (who was arrested in New York Thursday) put it a little differently: “Corporate America is using our police departments as hired thugs.”

I have read many claims by police that protesters threatened or assaulted them in some way. With all the video cameras out there, you’d think someone would capture assaults on police if they were really happening with any frequency. I’ve looked for such video, but I can’t find it.

On YouTube, the query “occupy protesters assault police” led me to this local TV-news report from Toledo, which shows two protesters at a city council meeting “assaulting police” by flailing helplessly as they’re being dragged away. So far that’s the worst protester violence I’ve found video of.

In public-opinion terms, this “even-handed” coverage is anything but. Obviously, the reason there is an incident at all is because people are protesting, so if “violence erupts”, the reader’s natural inclination is to think that protesters caused it. Similarly, when ABC News reports that nine cities have already spent more than $10 million responding to the protests, the protesters seem to be to blame.

What actually costs money, though, is the cities’ extreme now-look-what-you-made-me-do over-reaction to the protests. The protesters are not demanding to be surrounded by armies of police in riot gear earning overtime. City mayors and police chiefs are making those choices, which are justified by what, exactly? Where is the bad example of a city that under-responded and suffered some awful consequence?

Virtually every “problem” offered as an excuse to break up the occupation protests is actually made worse when the police attack. Are the protesters “trashing” the public parks? Well, here’s what the Occupy Oakland site looked like the morning after the police violently “cleared” it.

Mayor Bloomberg has cited complaints about noise as a reason to drive protesters out of Zuccotti Park — with noise cannons. As the NYT’s Nicholas Kristof observed:

Sure, the mayor had legitimate concerns about sanitation and safety, but have you looked around New York City? Many locations aren’t so clean and safe, but there usually aren’t hundreds of officers in riot gear showing up in the middle of the night to address the problem.

When the unprovoked and counter-productive violence of the authoritarian reaction is masked by “even-handed” coverage, though, the natural reaction of the news-watching public is to grumble at the protesters who are causing trouble and wasting their tax money.

And as the mainstream media coverage suffers from false equivalence and fake even-handedness, the coverage from the right-wing media — Fox News, Rush Limbaugh, the Washington Times, the New York Post, the Weekly Standard, and (now that Murdoch owns it) the Wall Street Journal — drips with vitriol.

For weeks, Fox News has pushed two related lines of propaganda on a daily basis: invoking a Woodstock drug-taking dirty-hippy stereotype of the protesters, and de-humanizing them by focusing on their animal functions — urination, defecation, sex, etc. Karl Rove’s Crossroads PAC has put out an anti-Elizabeth-Warren ad tying her to the occupations, where “protesters attack police, do drugs, and trash public parks.”

Unsurprisingly, when one side’s propaganda goes uncorrected, the other side’s public image suffers. A PPP poll shows Occupy Wall Street’s popularity declining.

This combined police-and-media attack exposes a long-term weakness in the Left: We lack solidarity. When media coverage goes against some group we sympathize with, we distance ourselves rather than stand up for them.

The Right has dug-in, billionaire-financed infrastructure, so it will defend its clan from media attacks (as it has done with Herman Cain) even if the target is clearly in the wrong (like BP). Compare the Left’s reaction to the Dean Scream: Objectively, the scream meant nothing, but suddenly it was embarrassing to be associated with Dean, so his support melted.

It’s important that those of us who sympathize with the goals of Occupy Wall Street not melt away. Ordinary Americans have started protesting against the way that the rich (especially the parasitic financial community, which on the whole adds little if anything to our economy) have captured all the economic growth. In response, the rich have leaned on City Hall to call out the police to rough them up (except in New York, where no leaning was necessary because a finance-industry billionaire already is City Hall), and the corporate media has covered these events in a way that distributes the blame unfairly on the protesters.

We can’t let that be the end of the story.

November 21, 2011 – 1:13 pm Categories: Articles | Comments (9)

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Will the Court Throw Out Obamacare?

Last Monday, the Supreme Court announced something that’s been obvious for a while now: It will rule on the constitutionality of the Patient Protection and Affordable Care Act, nicknamed the ACA or Obamacare. This was inevitable, because four appeals courts have ruled on the Act and disagreed: three said it was constitutional, and one said not. Since a federal law can’t be constitutional in some parts of the country but not others, the Supreme Court needs to straighten this out.

The rulings so far. At the district court level, rulings tended to be political: Judges appointed by Republican presidents invalidated the law while those appointed by Democrats upheld it. (The most polemic invalidation was Reagan appointee Judge Roger Vinson’s in the Pensacola District.) Fortunately, the appellate courts were more, well, judicious in their rulings. In particular, the D. C. appeals court ruling two weeks ago gives a good model of the two most likely ways the Supreme Court might go.

Like the Supremes, the D.C. court had a conservative majority: a Reagan appointee (Laurence Silberman), a Bush II appointee (Brett Kavanaugh), and a Carter appointee (Harry Edwards). Both the majority opinion and the dissent were written by the conservatives.

The majority opinion (by Silberman, supported by Edwards) upheld the constitutionality of the ACA. The dissent (Kavanaugh) didn’t rule on the constitutional issues, saying that the courts could not intervene until the law has fully taken effect in 2014.

Both opinions are well thought out, and I believe the Supreme Court will back one or the other of them.

The issues. The controversial part of the ACA is the individual mandate: It requires people to buy health insurance and penalizes them if they don’t. This notion was proposed by the conservative Heritage Foundation in the 1990s as an alternative to Medicare-like proposals for universal health care, because it keeps the health insurance industry private. Newt Gingrich supported the mandate then, and Mitt Romney made it the center of his Massachusetts healthcare plan.

Now, however, conservatives claim it is unconstitutional for this reason: Article I, Section 8 of the Constitution lists the powers of the federal government, and conservatives hold that none of those powers can be stretched to cover the individual mandate.

Supporters of the law claim that it is authorized by Section 8’s Commerce Clause

Congress shall have Power… To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes

plus the Necessary and Proper Clause

Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers

In other words, Congress can regulate the interstate market in health care, and in carrying out that mission, Congress has found it necessary and proper to mandate that people buy health insurance.

It’s not a tax. The annoying thing about this whole debate is that Congress could have avoided it by wording the law differently. If it had called the mandate a tax instead of a penalty (in other words, we’re going to tax people who don’t have insurance) it would have fallen under the sweeping power to tax that Section 8 gives Congress:

The Congress shall have Power to lay and collect Taxes

One reason Judge Kavanaugh gives for delaying a ruling until after 2014 is that in the meantime Congress could make the whole issue moot with this minor rewrite of the law.

The who-pays-what-to-whom would be identical. The difference is purely moral: Under the ACA as it stands, an uninsured person is breaking the law, for which s/he is assessed a penalty (collectable by the IRS on the income tax form). If the mandate were a tax, an uninsured person could obey the law by paying the tax (in the same amount on the same form).

The administration has argued that this makes no practical difference, so the courts should rule the ACA constitutional under the taxing power. But judges aren’t buying it. Who’d have suspected: You can’t tell a judge that it makes no difference whether a person obeys or breaks the law.

Or maybe it is a tax. The main reason not to rule on the ACA until 2014 is the Anti-Injunction Act, which says that a judge can’t issue an injunction to prevent a tax from going into effect. If a tax is invalid for some reason, the proper process is for the government to begin collecting the tax and for the courts to get involved only after people to sue to get their money back.

The point, I think, is to keep one or two renegade judges from screwing up the whole government by shutting off its revenue.

I know what you’re thinking: If the mandate is a penalty and not a tax, what does the Anti-Injunction Act have to do with it? Well, apparently there’s a penumbra of some sort, so that if a non-tax is sufficiently tax-like, the Act applies. (You can tell from the D.C. court ruling that Silberman and Kavanaugh had a long argument about this. I confess to skimming this part of their opinions.)

Action vs. inaction. Sooner or later, though, either now or after it takes effect in 2014, the Court is going to have to rule on whether the Commerce Clause authorizes the individual mandate.

Anyone who wants to invalidate the ACA has to deal with the long history of courts interpreting the Commerce Clause loosely and expansively. Under current precedents, Congress can regulate economic activity within a state if that activity is part of a larger interstate market, and it can even regulate non-economic activity (like limiting the quantity of wheat that a farmer can grow for his own use) if some larger scheme of economic regulation depends on it. Commerce-clause justifications have only been rejected when the obvious intention of the law was to regulate local, non-economic activity (like keeping guns away from schools) on the vague justification that the activity has some eventual impact on interstate commerce.

So the basic commerce-clause justification of the ACA goes like this: Healthcare is an interstate market, so Congress has a legitimate interest in regulating it. The scheme implemented in the ACA is a legitimate attempt to regulate that market. That scheme falls apart without the individual mandate, so the mandate is necessary and proper to carry out Congress’ commerce-regulating power.

The counter-argument is that none of the precedents cover the ACA’s individual mandate, because they all concern some kind of activity, while the mandate is regulating inactivity. Simply by existing, the ACA claims, you affect the interstate healthcare market. So upholding the ACA is breaking new ground and substantially expanding the power of the government. If the ACA is upheld, what couldn’t Congress force people to do?

Judge Silberman’s ruling. Silberman agrees with the counter-argument up to a point, but not all the way to its conclusion. The precedents don’t cover inactivity, but the whole activity/inactivity distinction is itself new. It’s not in the Constitution, and it’s not implied by the precedents. So it’s not exactly conservative to toss the law out on these novel grounds.

What’s more, he rejects the basic conservative frame that the mandate is an individual-liberty issue:

Appellants’ view that an individual cannot be subject to Commerce Clause regulation absent voluntary, affirmative acts that enter him or her into, or affect, the interstate market expresses a concern for individual liberty that seems more redolent of Due Process Clause arguments. But it has no foundation in the Commerce Clause.

… it is irrelevant that an indeterminate number of healthy, uninsured persons will never consume health care, and will therefore never affect the interstate market. Broad regulation is an inherent feature of Congress’s constitutional authority in this area; to regulate complex, nationwide economic problems is to necessarily deal in generalities. Congress reasonably determined that as a class, the uninsured create market failures; thus, the lack of harm attributable to any particular uninsured individual, like their lack of overt participation in a market, is of no consequence.

Silberman finds no obvious place to limit Congress’ Commerce Clause power here, but notes that Congress is subject to a “political check”. In other words: This is one of many areas where Congress has the constitutional power to do all kinds of crazy things, and it’s up to the voters to see that they don’t. If Congress only had the power to do wise things, we wouldn’t need to have elections.

What will the Supreme Court do? I think that Silberman and Kavanaugh have blazed the two possible paths that an honest conservative judge can follow: Unless you want to invent some new restriction that isn’t in either the Constitution or the case law, you have to find the ACA constitutional. Your only other option is to punt the ball to 2014 or 2015 by invoking the Anti-Injunction Act.

Now, the Roberts Court has shown itself to be political. Its maneuvering around Citizens United, where it made a ruling more sweeping than either side was asking for, is a case in point. In that vein, I find it disturbing that the Court has chosen to review not just the individual mandate of the ACA, but also its Medicaid expansion, which none of the appellate courts had a problem with. That hints at another activist ruling, where the Court answers a question no one is asking.

Still, Silberman’s reasoning will be hard to reverse, particularly since his opinion quotes both Roberts and Scalia. So I believe the Court will take either the Silberman or the Kavanaugh route.

But the choice between them will be based on politics, not law. The Court’s decision, which may not come out until June, will frame the healthcare issue for the fall election. (Kavanaugh already hints at this by suggesting that a future president could decide not to enforce the mandate if he believes it to be unconstitutional.)

The decision will be determined by the Republicans’ electoral prospects: Will it be better for them to have the issue hanging, or to know that the ACA will take effect unless a new Congress reverses it or a new president refuses to enforce it?

So I’m taking the moderately cynical view of the Roberts Court. I don’t think they’ll throw the ACA out just because they dislike it politically, but which of the valid legal options they’ll take will be determined by politics.

November 21, 2011 – 12:55 pm Categories: Articles | Comments (3)

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Paterno and the Bishops

I generally try to avoid topics that are already over-covered in the media, but I do want to say a couple things about the Penn State scandal.

First, if you’re not a college football fan, it’s hard to appreciate what a shock this all has been, and why it’s drawing so many comparisons to the Catholic clergy’s pedophilia scandal. Maybe the person in the best position to comment is sexual-abuse-prevention activist and College Football Hall of Fame quarterback Don MacPherson:

The program under Joe Paterno is considered one of the cleanest in college football, boasting high graduation rates and on-field performance. … Penn State stood above in the hypercompetitive and often unscrupulous world of college sports, and this served as a recruiting tool and an assurance to parents of promising high school football players. It’s also not hard to understand why parents of troubled young men would want their sons to have the influence of the environment that Penn State and [Paterno assistant coach and accused child rapist Jerry] Sandusky provided.

Many other college coaches … well, let’s not slander them by name, but I would just roll my eyes if I heard a similar story about them. Their whole careers display an it-doesn’t-matter-if-you-don’t-get-caught approach to life. If exposing some crime would threaten the image of their programs, of course they’d look the other way. But Joe Paterno? That’s disturbing on a deeper level.

Second, the comparison between the Catholic Church and the Penn State football program points up something else: American society has changed since the Catholic Church scandal broke. There was a certain amount of wagon-circling around Paterno and his program, but not really that much by comparison to the pedophile-priest scandal. (The Catholic League’s Bill Donohue is still circling the wagons.)

Instead, a lot of people who clearly wanted to defend Paterno largely skipped past denial and went straight to how-could-this-have-happened shock and grief.

This ESPN clip comes from the day after the scandal broke. ESPN analyst and former Paterno linebacker Matt Millen (while he wants to give Paterno a chance to defend himself) is already wrestling with the cognitive dissonance of it — at one point going silent because he will start crying otherwise.

Millen’s reaction goes straight to the heart of why this story is upsetting: It overturns our comfortable notion that good people only do good things and bad people only do bad things. It’s obvious that for all these years, Paterno has been a moral voice in Millen’s head, calling him to live by a higher standard. And Jerry Sandusky … I’ll let Millen tell it:

Jerry Sandusky is your next door neighbor. He’s the guy you’ve known your whole life. He’s a helpful guy. He’s a light-hearted guy. He’s a smart guy. He’s a willing-to-help person. He’s everything you want. That’s the thing that just … could you see it coming? I mean … I’ve sat here. I’ve known the guy since 1976. I’ve been in meetings with him. He’s been in my home.

But all that doesn’t lead Millen to say “It can’t be true!” Instead he asks himself: “Could you see it coming?”

This mystery is part of what McPherson is confronting in his article The Myth of the Monster Pedophile: Sandusky wasn’t a child rapist pretending to be a nice guy, and he wasn’t a nice guy suddenly possessed by a child-raping demon. He was genuinely a nice guy in some settings and genuinely a child rapist in others. That’s what’s so disturbing.

November 21, 2011 – 12:34 pm Categories: Articles | Comments (8)

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Seemingly Moral

No Sift next week. The Weekly Sift returns on November 21st.

There’s no better way to justify relations founded on violence, to make such relations seem moral, than by reframing them in the language of debt — above all, because it immediately makes it seem like it’s the victim who’s doing something wrong.

— David Graeber
Debt: The First 5,000 Years (2011)

In this week’s sift:

  • Jobless Recoveries are Normal Now. One very instructive graph and the disturbing conclusion you can draw from it: The fundamental nature of recessions has changed, and most of the policies we fight over have nothing to do with it.
  • The Cain Scandal After a Week. Scandals just have entertainment value until they start driving your supporters away. So far that’s not happening.
  • The Death of the Follow-up Question and other short notes. Herman Cain’s China problem, a food-industry insider defects, a true blue supporter of the family is a deadbeat dad, the iPod of government, SB-5 is going down tomorrow, the importance of the smart grid, a couple particularly stunning scenes from nature, and more.
  • Last week’s most popular post. Nonviolence and the Police, with 329 views.
  • This week’s challenge. Remember to vote in your local elections tomorrow. Also, Saturday was Bank Transfer Day, when people all over the country closed their accounts at too-big-to-fail banks and moved their money to community banks or credit unions. If you missed, it’s not too late. AlterNet’s Lynn Parramore gives a step-by-step.
November 7, 2011 – 2:29 pm Categories: Weekly summaries | Comments (1)

Jobless Recoveries are Normal Now

This might be the most important graph in American economics, but in the popular media hardly anybody talks about what it means.

It comes from the blog Calculated Risk (which has been updating it for a long while now), and is based on data from the Bureau of Labor Statistics.

Each colored line represents a different recession in the American economy since World War II, starting with the 1948 recession (in blue). The longest and deepest (in red) is the current recession. The curves are scaled according to the percentage of jobs lost, to make the different recessions more comparable. (Otherwise the 1948 recession would look small just because the economy was smaller then.) The horizontal scale is months, and the recessions are lined up so that Month Zero is when employment bottomed out.

For the purposes of the graph, a recession starts when the number of jobs peaks, and it ends when employment returns to that previous high. That’s a little different than the definitions most economists use. Typically, economists say a recession is over when GDP starts rising again, which is why the Wikipedia says the current recession ended in June, 2009. But employment is what is known in the trade as a “lagging indicator”. In other words, even after the recession is technically over, you’ve still got a lot of jobless people wandering around.

At its simplest level, this jobs-based graph just verifies something you probably already feel in your bones: This recession is longer and deeper than anything we’ve seen since the Depression, and it’s not over yet.

But that’s not what I want to point out. Instead, I want you to notice this: The last three recessions have a different shape from the others. The earlier recessions are short and sharp. Jobs go away fast and come back fast. The job market hits a definite bottom, and 8-10 months later everything is back to normal.

But the recessions of 1990 and 2000 look like smaller versions of the recession we’re in. In each of them, the bottom is flat rather than sharp, and employment doesn’t come all the way back for a long time after that — two years for the 2000 recession and nearly-two-and-counting for the current one.

Therefore: The job market is changing in some long-term way that has little to do with our month-to-month political squabbles. The 1990 recession starts and ends under President Bush the First. The 2000 recession gets started under Clinton and its long, slow recovery happens under Bush II. The worst of the current recession is on Obama’s watch, but the shape and depth of the curve was already well established when he took office.

It’s hard to find a Republican/Democrat pattern here. About all you can say for or against Obama, for example, is that the deep recession curve that had already developed under Bush II has gone on to have the same shape you’d expect from the previous two recessions.

Other simple explanations similarly fall flat. For example, we had a modest budget surplus and no wars at the beginning of the 2000 recession, but a huge deficit and two wars going into the current recession. But the two curves have the same shape.

I’m going to go on to list some characteristics and possible explanations for the new-style recession, but I don’t claim to have answers for it. (There are things I’d like to see done, but ending this article with any policy proposals I can think of would do a disservice to the data. I’m pointing to something solidly real, and my “solutions” would be speculative.) Mainly, I want to offer two principles for critiquing anybody else’s proposals:

  • If you’re not talking in terms of decades, you’re not dealing with the real problem. Whatever the causes are, they’ve been brewing since at least the late 1980s.
  • You can’t fine-tune your way out. Any change in policy that is going to make a dent will have to be big and fundamental. If the pattern is unaffected by the differences between Clinton and Bush, or Bush and Obama, we’ve either got to think a lot bigger or accept these long slow recessions as fate.

The old recession pattern. OK, now let me try to express the change in words rather than curves. The old-style recessions fit the inventory-correction model of the business cycle in a manufacturing economy.

To say that in English: Good times cause everybody to get too optimistic at the same time. (GM builds too many cars, contractors put up too many new subdivisions, Sears stocks too much merchandise, and so on.) When this over-optimism starts to become apparent, everybody slams on the brakes at the same time.

So orders drop, factories get shut down, and workers get laid off. But it’s all temporary. After a few months, retailers manage to sell off their overstocked inventories and need to order new stuff again. Then the workers get called back, the factories re-open, and the recession is over.

The last few recessions haven’t looked like that in several ways.

Bubbles. First, financial bubbles play a much bigger role in setting the recession off. The current recession starts with the housing bubble, the 2000 recession with the dot-com bubble, the 1990 recession with the savings-and-loan crisis.

Psychologically, it’s the same cause: Good times make people over-optimistic. But in the old model it was producers who became too optimistic about what they could sell, so they produced more than the market could consume.

In a bubble, on the other hand, it’s speculators who become too optimistic. So condos are built in Florida not because anybody expects people to live in them, but because speculators think they can flip them to other speculators for a quick profit. Or mortgages are written without any expectation that the payments will be made, because investment bankers have figured out a way to package those mortgages into CDOs that the ratings agencies will stamp AAA.

That’s a very different problem than GM building too many Corvettes or Sears stocking too many washing machines.

Bubble-popping recessions are harder to recover from because there is no “normal” to get back to. The NASDAQ stock index peaked over 5000 in March, 2000. That level was justified by visions of limitless future profits that turned out to be imaginary. So even 11 years later, the NASDAQ is still only about half what it was.

Inventory recessions are like taking a wrong turn. Bubble recessions are like dreaming something and then waking up. You can’t just go back.

Job destruction. Partly due to changes in the economy and partly due to changes in the social contract, businesses are now actively looking for ways to get rid of their workers. So the old model (where GM laid off some workers until things got better, then hired them back) looks quaint now.

These days when you lose a job, it’s gone. The company has probably closed the factory for good, merged with a competitor, or otherwise re-engineered its process to get along without you. When demand comes back, your former employer will open a new factory in Mexico or subcontract to a supplier in China or buy robots. At best, it might only threaten to do those things so that it can hire you back as a temporary contractor at half your old rate.

[BTW, this week I ran into a joke that is probably from the 50s or 60s. Union leader Walter Reuther and industrialist Henry Ford II are touring a new highly mechanized Ford plant. “Tell me, Walter,” Ford says, “How do you plan to get these machines to join your union?” Reuther replies: “The same way you’re going to get them to buy your cars.”]

Job recovery takes longer now because the economy has to create brand new jobs, not just re-start the old jobs. This means that the experience of being unemployed is completely different. The laid-off GM worker could collect unemployment, fix up the house, coach Little League, and be reasonably certain to go back to work in a few months.

Today the unemployed have to have a plan, and searching for a new job can be harder and more stressful than working. Worse, the new job often pays significantly less than the lost one.

Inequality. A long-term trend in back of the other trends is increasing inequality. As more and more money flows to the 1%, they don’t need more goods and services; they need more investment opportunities. That restless cash looking for a home pumps up the bubbles, funds the mergers, and buys the robots. But it doesn’t create new markets that need more workers.

What should we do? I’m not sure, but it needs to be much bigger and very, very different from anything currently on the table.

November 7, 2011 – 2:27 pm Categories: Articles | Comments (7)

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The Cain Scandal After a Week

When I was putting the Weekly Sift together last Monday morning, I had a decision to make. Politico had raised the Herman Cain sexual harassment charge the night before. Should I call your attention to it or not? I decided not to.

For most of the week, it was the top news story. And yet, when I did my headline-scan this morning, it was nowhere to be seen. The most recent opinion polls show Cain still at or near the top of the Republican field, as if nothing had happened. (Though one poll shows his favorability ratings among Republicans dropping from 66% to 57% — still higher than, say, Rick Perry, who had no scandals this week.) Cain’s Intrade shares bottomed out below 5o cents (indicating a 5% chance of him getting the nomination) on Saturday, and were rising sharply towards 65 cents this morning. Then another accuser announced a press conference and they dropped to 35 cents.

So the conventional wisdom doesn’t know what to think. If we’ve heard everything, Cain will weather the storm. If we haven’t, who knows?

Here’s the yardstick I’m using to decide what’s a big deal and what isn’t: Politically, a scandal is only important if it changes people’s minds. Which means: As satisfying as it might be for me to speculate about what Cain did or did not do and whether that does or does not dynamite all the moralistic foundations of his candidacy, my opinion makes no difference in this matter, because I was never going to vote for Herman Cain anyway.

Politically, this only matters if it changes the minds of Cain’s supporters and potential supporters. And so far, I don’t think it has.

Not that Cain’s audience doesn’t care about sexual misconduct. Quite the opposite, they’ll turn on him quickly if they start believing that he pressures women for extra-marital sex, especially if some of the women turn out to be white. (They’ll tell you that supporting Cain proves they’re not racist. But I don’t believe they’re that not-racist.)

But what would it take to convince them? They aren’t going to believe “the liberal media”. And even if one or more women come forward, Republican primary voters will say that they just wanted money, which they’re being paid (probably by all-around boogeyman George Soros) to come out of the woodwork.

As Dahlia Lithwick points out, Cain’s defenders have already gone far beyond just saying “we don’t know what happened” or “innocent until proven guilty” and are instead attacking the whole notion of sexual harassment. They know Cain is innocent because sexual harassment is a “scam” (Fred Thompson) and “a lawyer’s ramp, like racial discrimination” (John Derbyshire). The mere possibility of lawsuits “drains the humor and humanity from the workplace” (Kurt Schlichter), presumably because it’s so darn hard to make a female subordinate laugh without hinting that you want to have sex with her. Rand Paul agrees, saying he will no longer “tell a joke to a woman in the workplace, any kind of joke, because it could be interpreted incorrectly”. Lithwick concludes:

Nobody is suggesting these claims [against Cain] are necessarily true. But to claim that they must be false because all women lie and all harassers are just joking is a terrifying proposition.

Here’s the sad truth: If you care about sexual harassment and are willing to take a woman’s testimony against a powerful man seriously, you’re probably already a Democrat. So your opinion on the Cain scandal doesn’t count.

[I anticipate a sneering comment from some conservative about Bill Clinton and Paula Jones. You need context to understand Democrats’ dismissal of Jones: Jones’ story was marketed by the same people who claimed the Clintons had murdered Vince Foster. She was the Nth attempt to drum up a scandal against Clinton, after the first N-1 had been bogus.]

So there are only a few ways Cain’s harassment scandal becomes important: if there’s an embarrassing photo, if so many women come forward that the Wilt Chamberlain racial stereotype starts to apply, if people other than the victims (especially powerful men) come forward with supporting testimony, or if the pressure throws Cain so far off his truthy style that he looks guilty to his supporters.

So far all the furor is coming from people who never liked Cain anyway. Unless that changes, the scandal just has entertainment value. Politically, it doesn’t matter.

November 7, 2011 – 2:13 pm Categories: Articles | Comments (1)

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