Tag Archives: democracy

How Propaganda Works

October 19, 2015 – 8:39 am

Jason Stanley has written an insightful book in the language of philosophers. Let me try to translate.

The popular view of propaganda is that it’s nothing more complicated than repeating the same lie over and over: Just keep telling people that voter fraud is a serious problem, Mexican immigrants are disease-carrying criminals, and more guns will solve the gun-violence problem; eventually they’ll start believing such things and repeating them to their friends. You pound a lie into people’s ears until it starts coming out their mouths.

But why do some falsehoods and misdirections catch on while others don’t? Why are some notions impervious to contrary evidence? How do they win out over truths whose perception ought to be in people’s best interest? Why, for example, will a person be unmoved by a hundred accounts of climate change from qualified experts, then listen to one crank claiming it’s a conspiracy to establish world socialism and think, “I knew it!”

In the marketplace of ideas, not all products are created equal. Some are born with inherent advantages that don’t depend on logic or evidence. How does that work?

In order to explain in an intellectually rigorous way, Yale Philosophy Professor Jason Stanley has to define or redefine a bunch of terms, and then argue that these concepts will survive the slings and arrows that other philosophers are likely to launch at them. For a layman like me, that makes for a slow and repetitive book (though not a tremendously long one: a little less than 300 pages). But while some of the basic ideas are familiar — motivated reasoning, confirmation bias, echo chambers, dog whistles, and so on — it’s rare to see them assembled in such a complete package.

Defining propaganda. Stanley proposes a broader definition of propaganda than just lies; it’s “manipulation of the rational will to close off debate”. In less technical terms, it’s the use of deception, emotion, misdirection, intimidation, or stereotype to eliminate certain facts or points of view from the discussion.

A specific use of a slur, for example, may not contain any false information, but instead pushes out of mind the humanity of the slurred person or group. Having police pay special attention to “thugs” doesn’t sound as bad as racially profiling young black men. Undermining “that bitch at the office” is easier to justify than driving women out of the workplace. The point of view of “thugs” or “bitches” doesn’t seem worthy of consideration.

Democratic propaganda. The canonical examples of propaganda come from totalitarian states like Nazi Germany or Soviet Russia, which had ministries of propaganda and officially sanctioned media like Pravda. But Stanley is more interested in the special problem of propaganda in countries that style themselves as liberal democracies, where ideas are supposed to be debated freely in an independent press in front of a autonomous electorate. In America, the echo chambers have unguarded exits. Why do so many citizens choose to remain inside?

Stanley points up a key difference: In a totalitarian state, you can easily recognize propaganda, but don’t know whether to take it seriously. (When Hitler cast the Jews as vermin he wanted to exterminate, a man in the street might have shrugged and said, “That’s just propaganda.”) In a liberal democracy, we take the news media more seriously, but have a harder time recognizing when it contains propaganda. (Example: Judith Miller’s NYT articles about Saddam’s WMD program.)

Another difference is that while propaganda fits perfectly into totalitarianism, it strikes at the heart of democracy: If citizens are not rational actors who use the democratic system to defend their interests and values, but instead are manipulated into some other kind of public discussion, then what’s the justification for giving them a say at all?

Two kinds of propaganda. Stanley breaks propaganda down into two types: supporting and undermining. Supporting propaganda is in some sense straightforward: It promotes what it appears to be promoting. For example, a government might raise support for its war effort by publicizing real or imagined atrocities committed by the enemy.

What’s more dangerous for a democracy, though, is undermining propaganda: appeals to public values to promote goals that in fact undermine those very values. For example, by popularizing the false belief that America has a significant voter-fraud problem, voter-suppression tactics can be put forward as necessary to defend the integrity of our elections. A laudable democratic value — integrity of elections — is used to undermine the integrity of elections.

Similarly, the false belief that Christians are discriminated against in America justified Kim Davis in denying marriage licenses to gay couples. The democratic values of equality and fairness were invoked to undermine equality and fairness.

Flawed ideology. Those examples raise another key concept in Stanley’s system: flawed ideology. A flawed ideology is a set of false or misleading ideas that are impervious to evidence. If your target audience has a flawed ideology, then your propaganda doesn’t have to lie to them. The lie, in some sense, has already been embedded and only needs to be activated.

For example, suppose you are addressing people who believe (or at least take seriously the possibility) that President Obama’s anti-ISIS policy is intentionally inept, because he’s a secret Muslim. Instead of making that claim explicitly, all you have to do is activate the flawed ideology by calling the President “Barack Hussein Obama”. Your audience will add the secret-Muslim point to whatever other criticisms you make of Obama’s moves in the Middle East.

What’s more, content that is evoked like this (and not explicitly stated) is harder for the listener to filter out. Stanley gives the non-political example: “My wife is from Chicago.” If the speaker says, “I am married”, the listener might consciously consider whether or not that is true. But “My wife is from Chicago” calls attention to the claim about Chicago, sneaking in the idea that the speaker is married.

In mid-conversation, it may be hard for the listener to specify exactly what content has been evoked by “Barack Hussein Obama”, much less consider whether it is true. Similarly, when Newt Gingrich referred to Obama as “the Food Stamp President”, he evoked all the content that had been previously associated with food stamps: that undeserving people get them because they’re too lazy to work, that most of those lazy people are black, that (because he is black himself) Obama is on their side rather than the side of hard-working white people, and so on. Challenging the explicit claim — that food stamp usage increased during the Obama administration — misses the point, because that part is true. In fact, challenging it and letting supporters defend its accuracy only reinforces their impression that the unspoken content must be true as well.

Flawed ideology is social. Once a flawed ideology exists, it gets reinforced by each use. So American Christians who believe they are persecuted closely followed the Kim Davis story, and came away more convinced than ever that they are persecuted.

But where does flawed ideology come from in the first place? Stanley roots flawed ideology in self-interest, particularly our unconscious attraction to comfortable ideas that tell us we are good and justified in what we hope to do. But the ideas most impervious to evidence aren’t just the ones that further our personal interest, but the ones that support our social identity.

Stanley gives the example of the near-universal belief among pre-Civil-War Southern slave-owners that slavery was justified, and that blacks were too lazy, stupid, and childlike to benefit from freedom. To turn away from that complex of beliefs, you would not only have to realize that your own standard of living is based on a great wrong, but you would also have to indict your parents, your church, your teachers, your friends, and your entire community for conspiring to commit that injustice. Literally everyone you had believed to be good might have to be reclassified as evil. So the stakes are far higher than just increasing the labor expense of your plantation or learning to make your own bed. Changing your ideas about blacks and slavery could change everything for you.

No wonder so few people did. Ideas like slavery could not be examined dispassionately, carefully weighing evidence for and against. Hearing persuasive criticisms of slavery would naturally evoke fear of losing your whole sense of self, so you might seize pro-slavery rationalizations like an overboard sailor grabbing a life preserver.

Today, the reason so few Americans leave their unguarded echo chambers is that those echo chambers are communities that define their social identity. As our politics becomes more polarized and entire states see themselves as blue or red, changing your ideas about abortion or race or Islam or guns or capitalism could mean becoming a whole new person with new friends and memberships, maybe living in a new town or neighborhood. Even your family relationships could be shaken.

Some ideologies threaten democracy more than others. As far back as Plato and Aristotle, philosophers have recognized that different forms of government are based on different values. A dictatorship values decisiveness and loyalty, an aristocracy refinement and breeding, a plutocracy wealth. A corporate state reveres efficiency and orderly procedures. Democracies are based on competing values of freedom, fairness, and equality; and a properly functioning democracy fosters a constant debate about how to balance those values and compromise each with the others.

So the propaganda that most threatens democracy isn’t the kind that argues directly for the values of another system — if people really want more efficiency, we should talk about that — but the undermining propaganda that invokes freedom, fairness, and equality to justify actions that diminish freedom, fairness, and equality.

Consequently, the flawed ideology that most threatens democracy is the self-justifying ideology of privileged groups, like the Confederate slave-owners. If our group has some unfair advantage that is based on foreclosing the options of other people, we will naturally want to believe that our advantage doesn’t really exist (there is no inequality), or that it’s actually fair because of the comparative virtues of our people and those who lack our privileges, or that the un-privileged folks are freely choosing not to do the things that (in reality) the system discourages them from doing.

Complexes of ideas that tell us such things — that freedom, fairness, and equality demand that my people keep their privileges — are so welcome that they seem obvious and natural. “Of course,” you say, “I should have seen that myself.” That nagging sense that our way of life is unjust and unsustainable vanishes. We are the good guys, and those who want to take away our advantages are the bad guys.

Former Republican Congressman Bob Inglis frames climate-change denial just that way in this clip from the movie Merchants of Doubt.

It’s not just a head thing. This is very much a heart issue. It’s not the science that’s affecting us. I mean, the science is pretty clear. It’s something else that’s causing this rejection. Many conservatives, I think, see that action on climate change is really an attack on a way of life.

The reason that we need the science to be wrong is otherwise we realize that we need to change. That’s really a hard pill to swallow, that the whole way I’ve created my life is wrong, you’re saying? That I shouldn’t have this house in the suburb? I shouldn’t be driving this car? That I take my kids to soccer? And you’re not going to tell me to live the way that you want me to live.

And along come some people sowing some doubt, and it’s pretty effective, because I’m looking for that answer. I want it to be that the science is not real.

So: personal interest leads to social identification with the people who share those interests; maintaining social identity prevents the examination of notions that would threaten our way of life, leading to flawed ideology; the false information contained in that ideology can be activated and reinforced by propaganda that may contain no false information of its own; with the result that freedom, fairness, and equality seem to demand the maintenance of our unfair and unequal advantages — “You’re not going to tell me to live the way you want me to live.” — even if it ultimately means that others will have their freedom diminished. The resulting beliefs are then almost impossible to refute with evidence, because such an argument is tied to a threat to the believer’s community and social identity.

[Propaganda is a topic the Sift returns to every now and then. My favorite previous articles in this series are “Liberal Media, Conservative Manipulation” and “How Lies Work“.]

By weeklysift | Posted in The Sifted Bookshelf | Also tagged , , | Comments (20)

What the Speakership Battle is About

October 12, 2015 – 9:10 am

The Freedom Caucus wants a speaker who will back its next blackmail play.

Anybody who writes about the chaos in the House Republican caucus should start by admitting how much we in the general public don’t know. The 247 Republicans in the House form a group about the size of a medium-sized church or high school, so decisions can easily turn on the secret meetings of small cliques, phone conversations between leaders of factions, or even the private decisions of individuals. We don’t really know, for example, why Kevin McCarthy pulled out of the race for speaker. [1] We don’t know just how badly John Boehner wants to be done with it all. We don’t know what kinds of pressure can be brought on Paul Ryan to take the job, or whether it will succeed. (For all I know, it may already have succeeded or failed by the time you read this.)

So predicting exactly how events will play out, who’s going to wind up as speaker, how long the process will take, and so on — that’s for Beltway reporters who have inside information, and even they probably won’t know until just a few hours before the public announcements. (That ignorance won’t stop them from speculating, though.)

But in addition to the “inside baseball” of the House Republicans, there is also what stats geek Bill James once dubbed “outside baseball” — the kinds of deductions you can make from publicly available information. Outside baseball can’t tell you what the major players are thinking, but it can describe the external reality they have to deal with.

Getting to 218. Keeping with the Bill James theme, let’s start with numbers: The House has 435 members. The speaker is elected by the whole House, so the winner needs 218 votes. The way that has worked since time-out-of-mind is that the majority party has a private meeting beforehand, decides on its candidate, and then votes for him or her as a bloc on the House floor. (That majority-party meeting is what blew up Thursday, when McCarthy suddenly dropped out.)

But now we run into the Republican Party’s internal friction. The House Freedom Caucus is essentially the Tea Party faction within the Republican caucus. The HFC is generally described as having around 40 members, 36 of whom are listed in the Wikipedia article. So any Republican nominee they decide not to support falls short of 218.

In theory, Democrats could provide the handful of votes necessary to put a less-conservative candidate over the top, but why should they? Why not let the GOP’s squabbles fester and keep making embarrassing headlines? So the prospective speaker would have to offer Democrats some concession in exchange, and that would create an issue that could reverberate through a series of Republican primary challenges across the country: The “establishment Republicans” would rather make a deal with Democrats than with their “true conservative” base.

But the House needs a speaker to function, so at some point in a hung-up process, Democrats might help out just to get the House running again and avoid the bad things — government shutdowns, debt-ceiling crises — that happen when no laws are being passed. Similarly, at some point the non-HFC Republicans might fear the wrath of the country even more than primary challenges, so they’d be willing to deal with Democrats. Up to that point, though — and I think it’s still a long way off — the HFC is in a position to block any speaker it doesn’t like; except Boehner, who is already speaker and doesn’t need to win a new election.

O tempora! O mores! When you realize how easy it is for a small group to disrupt the election of a speaker, you start to wonder why this doesn’t happen all the time. For example, Democrats had only 233 seats in 2007, so any 16 renegade Democrats could have blocked Nancy Pelosi’s election. Democrats also have factions, and radical members from districts so safe they don’t have to fear bad publicity, so why didn’t a couple dozen far-left Democrats hold up Pelosi until she committed to defunding the Iraq War or passing single-payer health care or something?

The answer isn’t anything in the rules, it’s embodied in our political mores and taboos: You just don’t do that. When the party picks its candidate, you back him or her. That’s what it means for a member of Congress to belong to a party.

Or at least, that’s what it used to mean. One long-term issue hardly anybody talks about is the ongoing breakdown in our political systems’ mores and taboos. (I’ve written about it here and here.) In practice, no republic — especially not one with all the checks and balances our system has — can survive for long on its rules alone. It also needs a broad unwritten consensus on the bounds of reasonable behavior. Every year, our political mores and taboos unravel just a little bit more. [2] As a result, Congress gets more unwieldy, and the President [3] and the Supreme Court [4] keep expanding their reach so that the country continues to function.

People argue about this, but to me it’s obvious who’s unraveling the unwritten consensus: the Far Right. Combining a sense of entitlement with apocalyptic exaggeration, Tea Party rhetoric justifies its members in doing whatever it takes to get their way. Same-sex marriage, the national debt, ObamaCare, abortion — they’re all end-of-the-world issues, and God is on the Tea Party’s side. So if getting your way means refusing to do your job, telling outrageous lies, shutting down the government, or threatening to crash the economy, well, that’s just what you have to do.

The Blackmail Caucus. After Republicans took over the House in the wave election of 2010, the newly ascendant Tea Partiers began pushing a new legislative tactic: blackmail.

It’s important to understand the difference between ordinary political bargaining and blackmail. In ordinary bargaining, I push for what I want and you push for what you want; eventually we compromise on something that contains a little of each, balanced according to our relative strengths. But in blackmail, you push for what you want and I push something nobody wants, because I’m counting on you to surrender rather than let it happen.

So, for example, suppose I’ve kidnapped your daughter. I don’t want to shoot her; that wouldn’t accomplish anything for me and could expose me to a death sentence someday. In fact nobody wants me to shoot her; shooting her serves no useful purpose for anybody. But I’m counting on the fact that your distaste for seeing her dead is much stronger than mine, so you’ll do what I want.

That pretty well describes the debt ceiling crises of 2011 (when Obama paid the ransom) and 2013 (when he didn’t and John Boehner made the House back down). If the federal government ever hits the debt limit, checks will start bouncing and world markets will lose faith in U.S. bonds, with catastrophic effects for the global economy. (As Henry Blodgett summarized, “In relatively short order, therefore, the United States will stiff about 40% of the people and companies it owes money to.”) Nobody wants that, but Ted Cruz and his allies in the Freedom Caucus believed in 2013 that President Obama wanted it even less than they did, so he’d have to give in and defund ObamaCare. [5]

That was all perfectly legal. Nothing in the Constitution says that a faction in Congress can’t blackmail the rest of the country, but it used to be taboo. Now the Tea Party considers it an acceptable tactic. [6]

The Boehner problem. From the Tea Party point of view, the problem with John Boehner is that he doesn’t have enough backbone to shoot the hostages. So when Obama refused to blink in 2013, Boehner gave in and let a clean debt-ceiling resolution pass the House. Again just last month, when the Freedom Caucus was pushing to shut down the government over Planned Parenthood funding (funding that most of the country supports), Boehner again let a clean continuing resolution come to the floor, which passed with mostly Democratic votes. So the government is funded through December 11, and the current debt ceiling should last until November 5.

After Boehner blinked in the 2013 stare-down, conservatives started rumbling about ousting him as speaker. Part of the reason for announcing his resignation last month was to allow him to keep the government open without fear of retribution: You can’t fire me, I’ve already announced I’m quitting.

The open question is whether Boehner will take advantage of the Party’s inability to replace him, and just ignore the Freedom Caucus going forward. [7] He could, for example, let a clean debt-ceiling bill come to the floor and negotiate a longer-term budget deal with the Democrats.

What the Tea Party wants from the next speaker. Now we’re in a position to understand why I think the contest for the speakership is being completely mis-covered by the mainstream press. Their focus has been entirely on who. Initially, would Kevin McCarthy be more acceptable to the Freedom Caucus than Boehner? And then later, could Paul Ryan or somebody else satisfy them?

All that talk ignores the Freedom Caucus’ published desires: not a who, a what. They want the next speaker committed to backing their next blackmail play, when the debt ceiling comes up again in a few weeks or the government runs out of money in December.

That comes through clearly when you read the questionnaire the Freedom Caucus prepared for speaker candidates. Question #15 seeks a commitment from the new speaker not to allow another continuing resolution and not to allow appropriation bills to pass if they fund “Planned Parenthood, unconstitutional amnesty, the Iran deal, and Obamacare.” Question #13 lists provisions that should be attached to any debt-ceiling increase, including “significant structural entitlement reforms” (i.e., Social Security and Medicare cuts), and seeks a commitment to “not schedule the consideration of another vehicle that contains a debt limit increase”.

A number of the questions concern the process by which bills come to the floor, but the gist of them is that Freedom Caucus members should have an easier time attaching amendments (i.e., ransom demands) to debt-ceiling or government-funding resolutions.

So it’s not about personalities or trust or being “one of us”. The next time the Tea Party tries to hold the country hostage, they don’t want the Speaker to tell them no. It doesn’t matter whether the “no” comes from John Boehner or Paul Ryan or even Freedom Caucus Chair Jim Jordan. Who doesn’t matter. They want a commitment that the next speaker will shoot the hostages.

I don’t think they’ll get it. (I think that’s what Kevin McCarthy meant when he told National Review that HFC members “wanted things I couldn’t deliver”.) If they stick to their guns — and so far I don’t see any reason to think they won’t — then I don’t see anything moving until we get close to November 5, when Democrats and the Republican establishment will have to unite against them, either to elect a new speaker or to back Boehner’s debt-ceiling resolution.

That will energize a string of Tea Party primary challenges against establishment Republicans, which may have been the point all along. The ultimate goal of the Tea Party isn’t to defund Planned Parenthood or even ObamaCare, it’s to complete their takeover of the Republican Party. They’re playing a long game, and even a defeat in the speakership battle could work to their advantage.

[1] In addition to the surface explanation (that McCarthy didn’t think he could put together the 218 votes to win), there’s a conspiracy theory going around. So far it has zero direct evidence behind it, but at least makes some kind of narrative sense (i.e., it would fit right into a political novel like Advise and Consent).

On Tuesday, North Carolina Congressman Walter Jones sent an odd letter to the caucus chair, Cathy McMorris Rodgers:

With all the voter distrust of Washington felt around the country, I’m asking that any candidate for Speaker of the House, majority leader, and majority whip withdraw himself from the leadership election if there are any misdeeds he has committed since joining Congress that will embarrass himself, the Republican Conference, and the House of Representatives if they become public.

The letter has a weird I-know-something vibe to it, but doesn’t even hint at what Jones thinks he knows. The Week‘s columnist Matt Lewis tentatively suggests what it might be:

Many conservatives are buzzing over rumors — and let’s be clear, they are unsubstantiated rumors that both parties deny — that McCarthy had carried on an affair with Rep. Renee Ellmers (R-N.C.).

The Hill reports that congressmen were receiving emails from activists threatening to expose the affair, and that McCarthy was asked about the rumors Tuesday in a meeting with Texas Republicans.

[2] For example, the filibuster has been around just about forever, but generations of senators held a consensus that a filibuster was only appropriate on the one or two occasions in his life when a senator was willing to stake his career on an issue. So, for example, nobody filibustered Medicare.

Today, filibusters are routine, leading journalists to cover them as if the Constitution said that it takes 60 votes to pass anything through the Senate.

[3] If we wind up in a dictatorship, it won’t be because the public is disarmed or the government takes over the health care system, but because the President and the electorate simultaneously lose patience with the logjam in Congress. Imagine President Trump facing the collapse of the economy due to a debt-ceiling crisis and saying, “I’m sorry, you guys, but this is over.”

[4] The connection between congressional dysfunction and the Supreme Court’s expanded role is more subtle, but equally clear. Take Chief Justice Roberts’ decision saving ObamaCare in 2012: He ruled against the individual mandate penalty as a fine, but said it would be constitutional as a tax. In the old days, a judge would then count on Congress to fix the law. But that’s impossible now, so Roberts had a choice between killing ObamaCare and reinterpreting the text as if it had been fixed.

This kind of thing is happening more and more: Rather than give Congress instructions on how to make a law constitutional (knowing that such amendments can’t possibly pass in the current environment), the Court just fixes laws through interpretation.

[5] The other important thing to keep in mind is how against democracy this whole plan was. ObamaCare had been a major issue in the election of 2012, and President Obama had been re-elected handily. (In fact, Democratic candidates for the House also got more votes than Republican candidates, but gerrymandering maintained the Republican House majority.) So Republicans had taken their anti-ObamaCare message to the voters and lost.

[6] President Obama recently made a statement that emphasized just how one-sided blackmail tactics are:

I know, for example, that there are many Republicans who are exercised about Planned Parenthood. … But you can’t have an issue like that potentially wreck the entire U.S. economy, anymore than I should hold the entire budget hostage to my desire to do something about gun violence. I feel just as strongly about that. And I think I’ve got better evidence for it. But the notion that I would threaten the Republicans, that unless they passed gun safety measures that would stop mass shootings, I’m going to shut down the government and not sign an increase in the debt ceiling, would be irresponsible of me and the American people rightly would reject that.

Nothing in the Constitution prevents a president from making a demand like that, but Democrats still believe blackmail tactics should be taboo.

[7] President Obama has gotten much bolder after the 2014 elections, entering what I’ve been calling the aw-fukkit phase of his presidency. Boehner could join him there.

By weeklysift | Posted in Articles | Also tagged , | Comments (10)

The Myth of Republican Governance

March 2, 2015 – 9:48 am

If your ideology says government can’t succeed, why prove yourself wrong?

Any day now, we are often assured, Republicans in Congress will start to take their jobs seriously. It hasn’t happened yet, but soon.

“I think a lot of people better get serious about governing,” Pennsylvania Republican Congressman Charlie Dent said last Friday, after the House failed to fund the Department of Homeland Security past next Friday. It’ll happen. Any day. Any minute.

Of course, they were very serious about governing during the George W. Bush administration. But nobody — not even Bush’s closest relatives — want to think too hard about those days now.

And then the Obama landslide of 2008 made Republicans almost irrelevant for two years. Suddenly there was no point trying to take responsibility for anything, and Republicans discovered the invigorating thrill of pure nihilism. They were free to propose nothing and say no to everything, even their own ideas from that era we don’t talk about any more.

So when Obama based his healthcare proposal on Romneycare, Romney opposed it. McCain turned against the McCain-Lieberman cap-and-trade plan, and voted against his own immigration reform. Republicans were all mad as hell and they weren’t going to take it any more — whatever it was.

But when the low-turnout election of 2010 made John Boehner Speaker of the House, it was time to get serious and get back to governing responsibly. Wasn’t it? [1]

Then followed four years of playing chicken with the well-being of the Republic. That series of crises culminated in the government shutdown of 2013, when the executive branch was very nearly put in the impossible situation of being obligated to carry out Congress’ appropriations bills, but forbidden to raise the money by either taxing or borrowing. Crazy ideas like the trillion-dollar coin bounced around, because they were no crazier than everything else that was happening.

At the time, Republicans’ poll numbers dropped, and there was some thought that the voters might punish the party in 2014. But in fact the exact opposite happened: The voters gave them control of the Senate too.

But now, with control of both houses, they have something to prove. Don’t they? In January as the new completely-Republican-controlled Congress opened, John McCain expressed the party line:

I think a majority [of Republicans] recognize that we have to govern responsibly. We have to show that we can be a productive party, and that, I think, will have a direct effect on whether we’re able to elect a Republican as president in 2016.

Two months later, DHS is living paycheck to paycheck, because House Republicans are mad as hell about immigration. They don’t have a coherent plan to undo President Obama’s executive actions, and they certainly don’t have an immigration plan of their own [2], but they’re mad! They have to do … something.

Meanwhile, we’re now up to 50 votes repealing ObamaCare, and not a single one on a Republican plan to replace it. Republicans nearly all acknowledge that parts of ObamaCare should be kept. (The part about pre-existing conditions, for example.) But coming up with a plan that actually does that? Making the compromises necessary to pass it into law? You’ve got to be kidding.

Discipline. In years past, the voters played the wait-til-your-father-gets-home role in American politics. A little bit of posturing and headline-grabbing was fine, even expected. But if a political temper tantrum gave the public reason to doubt the basic functions of government, somebody would pay come the next election.

Democrats, media pundits, and would-be grown-ups among the Republicans (i.e., McCain, Boehner, and McConnell) keep trying to invoke that discipline. But think about it: In 2013, for the sake of a plan that never had any chance of working, the Republican back-benchers shut down the government and very nearly broke the full faith and credit of the United States. And 13 months later, the voters gave their party more power.

We live in a new world, where Dad isn’t coming home and there’s no reason the kids should ever finish their vegetables and go to bed.

It’s time we understood how this new world works.

The difference between the parties. A cynical view of politics says that the two parties are just mirror images of each other, rival gangs competing for territory like West Side Story‘s Jets and Sharks.

But there is one key difference between the two: Democrats believe that government can change people’s lives for the better, and that we can do things together that we can’t do for ourselves. Together, we can have parks and libraries and public schools and clean air. We can soften the dog-eat-dog aspects of the capitalist system so that ordinary people have a chance. We can insure each other against disasters from hurricanes to cancer.

Republicans believe that government can only screw things up.

So when Republicans govern well, they refute themselves. If a Republican official solves a problem — like Mitt Romney did with health care in Massachusetts — it just creates an appetite for more government.

And that’s bad. To really prove the point that government can only screw things up, Republicans elected to office need to screw things up.

Turnout, not persuasion. In the old model of politics, there were “swing voters” — voters not identified with either party, who were open to persuasion. Each side had its partisans, but the one that convinced the swing voters would win.

One thing that swing voters found convincing was performance; that was where the discipline came from. If you made the United States look like a joke, they’d vote you out.

But that’s not how it works these days. Overwhelmingly, the people who care about politics enough to vote are identified with one party or the other, no matter what that party does. Today the question isn’t who you’ll vote for, it’s whether you’ll vote. (That’s how, for example, Mitt Romney got zero votes in some inner-city precincts of Philadelphia and Cleveland. Similarly, there were evangelical churches in the South where if you voted, you voted against Obama. So parties don’t bother trying to convince either set of voters, they just get their own to the polls.)

Take a look at how that works out in the vote totals for House races. (Data from Wikipedia.)

year Republican Democratic Total House split
2008 52,249,491 65,237,840 117,487,331 178-257
2010 44,827,441 38,980,192 83,807,633 242-193
2012 58,228,253 59,645,531 117,873,784 234-201
2014 40,024,866 35,626,309 75,651,175 247-188

A few things to notice:

  • Republicans got their biggest House majority in 2014, when they polled the fewest votes.
  • When there’s a big turnout, the Democrats win the popular vote, but when turnout is small, Republicans win. Another way to say the same thing is that the Republican vote is steadier than the Democratic vote. The lowest Republican vote (2014) is still more than two-thirds of the highest (2012), while the lowest Democratic vote (2014) is barely more than half the highest (2008). Conclusion: The people who might or might not vote are overwhelmingly Democrats.
  • Gerrymandering has locked in a certain amount of Republican advantage, so that winning the popular vote in 2012 didn’t get the Democrats control of the House.

Demographics. The big story after the 2012 election was that demographic trends favor the Democrats. The percentage of the country that is white shrinks every year, and Democrats are favored by non-whites. Young voters (who will be around for a while) trend Democratic, while old voters (who won’t) trend Republican. Christian voters (shrinking) trend Republican, while no-specified-religion voters (growing) trend Democratic.

Salivating over those delicious trends, Democrats started trying to predict the date when Texas turns blue. A report by College Republicans said that their party had to change: compromise on immigration and gay marriage, reach out to Hispanics, blacks, and young people.

None of those changes happened in 2014, and yet the GOP won big. How? The rising demographic groups didn’t vote.

Comparing yesterday’s exit polls to those of 2012, the first thing that jumps out at you is a big shift in age demographics: under-30 voters dropped from 19 percent of the electorate in 2012 to 13 percent in 2014, while over-65 voters climbed from 16 percent in 2012 to 22 percent in 2014. That’s quite close to the age demographics of 2010.

Rather than continue its inexorable decline, the white vote increased from 72% in 2012 to 75% in 2014.

And that’s the secret to the lasting Republican congressional majority, and maybe to electing a Republican president in 2016: Don’t try to convince swing voters that Republicans can govern better than Democrats (or even govern at all). Just keep the rising demographic groups from voting.

No hope, no change. A portion of the blame/credit for the low turnout among minorities and youth in 2014 has to go to the intentional voter suppression Republicans have been focused on since 2010. They discovered that you don’t have to formally disenfranchise people to keep them away from the polls, you just have to make voting harder and less rewarding. Make people who don’t own cars (and so have no reason to already have a photo-ID drivers license) jump through an extra hoop. Make college students vote where their parents live. Gerrymander districts so that election results are a foregone conclusion. Shorten poll hours, make sure the lines are long in Democratic precincts, and so forth.

Marginal voters tend to have less slack in their lives than the more established non-urban whites of the Republican base. Getting to the polls is tougher, and standing in line for hours might mean you get fired or the kids are left unsupervised. So sure, each new hurdle in front of the voting booth is going to discourage more Democrats than Republicans.

That all has some effect, and will probably have more and more as it becomes normal and fails to provoke the backlash that motivated blacks (in particular) in 2012. But the real secret to lasting Republican power is motivational, or rather, de-motivational: Ruin people’s hope that politics can change their lives for the better.

People get involved in politics because they believe it can stop a war, save a school, jail the bankers who wrecked the economy, open doors for their racial group, give working people a chance, or secure their future against disasters of all sorts. They run away from politics when it looks like one of those pointless internet flame wars. Life is short and energy is limited. If politics is a waste of time, people who aren’t already committed to it will stay away — especially if their lives are hard enough already.

So when the marginal voters would vote against you, dysfunction becomes a strategy. Republican ideology already says that government can’t do anything but screw up. So if Congress is seen as just a bunch of jokers, that proves their point. If even the most obvious bill becomes impossible to pass, and the federal government lurches from crisis to crisis without doing anything that helps people … what better voter suppression is there?

Democrats need hope and change to motivate people to be active and vote. Republicans need no hope and no change to keep them tuned out. And they’re getting it.

That’s how we have the perverse polling we’ve seen: Just before the 2014 election, National Journal found only 9% approved of the job Congress was doing while 80% disapproved. In a Pew Research poll, disapproval of the Republican Party has been consistently running 68/23 neighborhood, compared to Democrats’ somewhat less unfavorable 60/32 split. And that led to increasing the Republican House majority and giving them control of the Senate too.

Why? National Journal has the answer: Americans wish the parties would co-operate more, but don’t believe they will. So:

More of those surveyed looked outside the political system for changes that might improve their lives.

What next? Whether or not we stop paying FBI agents next Friday, don’t expect Republicans in Congress to stop playing games with the government. And yes, it will drive down the popularity of Congress and of the Republican Party.

But so what? That dysfunction will also convince more Americans to lose faith in politics. More and more, voting will become that pointless thing old white people do. And why would you campaign for a candidate or donate to a campaign, unless you represent a special interest that needs to buy a favor?

Winning the House in 2010 gave Republicans the power to screw things up in Washington. And marginal voters responded to the screwed-up state of politics by staying home in 2014 and giving Republicans control of the Senate as well. Maybe they now have the power to screw things up on a grand enough scale to elect a Republican president in 2016.

But, then, surely, with control of both Congress and the White House, Republicans will have to take governing seriously. Won’t they?

Don’t count on it.

[1] It’s worth giving some thought to exactly what “responsible governing” would mean, so that it isn’t just thrown around as a buzzword.

In general, responsible governing means compromising to find a way forward that can be passed into law, rather than turning everything into a test of ideological purity. Finding a workable compromise is something a politician should be proud of, not a shameful act that can only be accomplished under the threat of a dire emergency.

Responsible governing also means being for something, rather than just criticizing everybody else’s solutions. Don’t like President Obama’s immigration plan? Fine. Tell me yours.

Above all, responsible governing means an end to hostage-taking, i.e., threatening to do something that nobody wants if you don’t get your way. Compromise means weighing what I want against what you want. But when one of us starts threatening to do things that nobody wants, we’re playing a different game entirely. The debt ceiling is the clearest example of a hostage — nobody really wants to see the United States default on its legal commitments — but nobody wants to see DHS shut down either.

It’s weird that the people most committed to ideological purity and most opposed to compromise claim to be representing the point of view of the Founders. The Founders were champion compromisers. The United States wouldn’t exist at all if they weren’t.

[2] Marco Rubio had an immigration plan, but has been making what Bloomberg Politics called an “apology tour” for daring to pass it through the Senate. If it had become law, hara-kari would have been his only honorable option.

By weeklysift | Posted in Articles | Also tagged | Comments (19)

Republicans have a story to tell. We’re stuck with facts.

November 10, 2014 – 10:07 am

In his recent Senate campaign in my state, Scott Brown talked a lot about securing the border. That’s the southern border, the one with Mexico, the one that’s over 2,000 miles away from New Hampshire. He connected the border issue to both terrorism and Ebola, neither of which we have here. And it almost worked. As a carpetbagger from Massachusetts, running against a likeable woman we’ve been electing governor or senator since 1996, in a state Obama won twice, Brown nearly pulled it off, losing 51.6% to 48.3%.

This happens at a point in the economic cycle when things are looking reasonably good: Unemployment, GDP growth, and the federal budget deficit have all escaped from the scary territory they were stuck in for so long after the housing bubble popped, and all are trending in the right direction. The stock market is at an all-time high. American combat troops are almost out of Afghanistan and Iraq, and the country is as close to peace as it has been since 9-11. And while Fox News has managed to create a series of faux scandals to excite its viewers, by the very real measure of indictments and convictions, the Obama administration has been the cleanest one we’ve seen in a long time, comparing very favorably with, say, the Reagan administration.

Compounding the mystery, Brown’s near-miss is a rare failure in the national Republican trend. Their victory doesn’t just bring control of the Senate, but sweeps into office some pretty radical folks, like Joni Ernst in Iowa, another state Obama won twice. Sam Brownback, whose tax-cutting mania has pretty well wrecked the fiscal health of the state of Kansas without providing any of the private-sector economic boost he promised, got re-elected governor.

Meanwhile, voters were making some liberal choices on ballot measures: Oregon, Alaska, and D.C. all legalized marijuana; Arkansas, Alaska, Nebraska, and South Dakota raised the minimum wage; Washington tightened gun control; and Colorado defeated a personhood amendment to limit abortion. And the national brand of the Republican Party, as Rand Paul put it, “sucks”. A pre-election poll by NBC and the Wall Street Journal showed the party’s favorable/unfavorable rating far underwater: 29%/47%, as opposed to the Democrats’ narrower 36%/43% split.

So there’s no real evidence that the public is getting more conservative, or seeing Republicans in a better light, but still they’re electing more and wackier Republicans. What’s up with that?

The City on a Hill. I was home sick on Wednesday, so I spent the day reading a short new book called Narrative Politics by Frederick Mayer. Mayer is a professor at Duke and the book is published by Oxford University Press, so it’s more academic than popular. But it is readable and has a clear point: Political scientists like to talk about voters who rationally weigh their interests, and tug-of-war struggles between institutional powers like unions or the Chamber of Commerce or the NRA. Meanwhile, pundits and campaign consultants like to talk tactics: ad buys and gaffes and moving the conversation away from your opponent’s issues and towards yours. But they all underestimate the power of stories to evoke a public response and channel that response into actions like contributing and campaigning and voting.

Mayer begins and then later concludes with the story-telling in Martin Luther King’s “I Have a Dream” speech. King never comes out and says, “I have a story to tell”, but his speech revolves around an implicit story I might retell like this:

From the beginning, the reality of America has been trying to catch up with the dream of America. From Jefferson, who wrote that “all men are created equal” but continued to own slaves; to Lincoln, who won a war to end slavery, but could not deliver full freedom; to the civil rights movement of King’s own day, which had its victories, but still left much to achieve; to the future that King could see in his dream, and would later see from “the mountaintop“, in which the promise of equality would be fulfilled.

The story of America was the story of progress towards an ideal. That story connected to a great past, was continuing right there in Washington where King was speaking, and would carry forward to a successful conclusion in the future. It was mythic, it was inspiring, it was motivating. And today’s Democrats have nothing like it.

Republicans do. Like King, they don’t say outright, “Once upon a time …” and start telling their story explicitly. But it’s always there in the background. It can be hard to pick up on, because most speakers just allude to the story rather than re-tell it, assuming that their supporters and potential supporters already know it. I’d tell it like this:

American is and always has been the “shining city on a hill” that Ronald Reagan talked about.* Its Constitution gave the world a model of liberty. Its free society gave opportunity to immigrants whose path to success had been blocked by the class system of Europe. Its capitalist economy and the industrious virtue of its citizens gave the world a new model of productivity and prosperity. The heroism of its soldiers and the determination of its statesmen saved civilization from both fascism and communism.

But now, the City on the Hill is threatened by barbarians at the gates. If the City were focused and united, no horde could stand against it. But the virtue that still exists in many of its citizens is mixed with corruption. Many have lost sight of the golden vision of the Founders and have forgotten the glorious history that followed. Many have lost the virtues of industry and self-reliance, and have no ambition beyond soaking up the productivity of others. Many do not understand the uniqueness of the City and why its values must be defended.

The City needs a renewal within and a crusade without, led by those who understand the world-historic significance of the City and its ideals. Without such a renewal and such a crusade, it will fall, and the light it brought to the world will be extinguished. But with such a renewal, its virtues can be restored, its enemies can be routed, and its golden past can live again.

[* I’ve described before how Reagan altered the city-on-a-hill image that goes back to the Mayflower.]

It’s easy to poke holes in this story, but before we do, let’s take a moment to appreciate its sheer diabolical beauty. For example, the story itself contains no prejudice other than nationalism, but it easily adapts to whatever bigotry a listener brings. Those lazy citizens who expect someone else to support them, do they have a certain complexion? The threatening barbarians, is that Arabic they’re speaking? Spanish? The corrupt citizens, might they be gay? Or atheists? Or Jews?

Maybe. Maybe not. Bigotry is harnessed, but deniable.

Similarly, the story can unite people who disagree, because the renewal it calls for can be anything. Does the lost vision the Founders include a fundamentalist style of Christianity? Or a robber-baron style of capitalism? Or what the League of the South calls “Anglo-Celtic culture“? Maybe some of that lost virtue is sexual: Men are having sex with other men, and women don’t know their place any more. They want to be free to have sex with whomever — barbarians, even — and escape the consequences of their sin through birth control or abortion.

No wonder the City is in danger.

What it explains. It’s only in the context of the City/Barbarians story that you can really understand the intensity rank-and-file conservatives feel about issues that (at first glance) have nothing to do with their lives. Why should straight people care so much about whether gay people get married? Or New Englanders fear Guatemalan children? Why do so many people have an opinion about academic theories like American exceptionalism? Why should well-fed families begrudge a poor family its Food Stamps? Why do people without young children feel such strong hostility towards public schools and their teachers? Why are those ISIS beheadings so much more horrifying than the beheadings that are normal Saudi executions? Why did the Ebola panic get so out of hand?

These things are not issues in the usual political sense. They are signs of the corruption of the City, omens of the barbarians’ arrival, and warnings of the havoc they’ll unleash if they get here.

The story also explains the bizarre animus people feel towards President Obama, and their willingness to believe absolutely anything about him: He’s Kenyan, he’s Muslim, he’s gay, he pals around with terrorists, he’s Marxist, he wants to kill your grandmother, and on and on. Obama’s fundamental sin is that he’s not one of us. He wants to open the gates and invite the barbarians in. Fox News’ “psychologist” Keith Ablow laid it out:

[Obama’s] affinities, his affiliations are with them. Not us. That’s what people seem unwilling to accept. He’s their leader … we don’t have a president. … We don’t have a president who has the American people as his primary interest.

Sure, you can go all academic-historian and explain why the story isn’t true. You can explain that the City was always corrupt, that its prosperity depended as much on slavery and genocide as on virtue and Godliness. You can point to the virtues of the people the City wants to exclude, or the ways they have been exploited, and the debts to them that a just city would want to honor. And it won’t matter. Because a story like this doesn’t have to be true, it just has to feel true.

And if you come from a certain segment of American society  — the one I came from, for example — it does.

The lost age of upward mobility. I grew up in that segment of the white working class that expected to move up. Our expectation rested on a bunch of things that don’t exist any more.

To start with, there was my father’s job. He worked in a locally owned factory that wasn’t unionized, but had to compete for workers with factories that were. So a man who worked there (they were nearly all men in those days) could support a family and have a little money left over. Education wasn’t required; Dad had a high-school diploma, but others didn’t. And yet his job was secure in a way that is hard to imagine now. The factory itself was stable from one decade to the next — no thought of robots or China, or a junk-bond deal to liquidate its assets. So if you were reliable and worked hard you could do what Dad did: keep that job until you were ready to retire.

At every stage in my young life, I knew that if I was successful, the next stage would open up. If I did well in high school, I could go to college. It didn’t require luck or massive family savings or big loans. Community college was practically free, and the state university system was barely more expensive. You could just about work your way through college with a part-time job during the academic year and a full-time job in the summer. At worst, you might have to take a year off to work and save (at a working-class job that paid enough to let you save). So if college was part of your plan, money wasn’t going to stop you.

Once you got to college, if you chose a reasonable major and did well, you’d get a job when you graduated. Not delivering pizzas or telemarketing, but a real white-collar job with a career path. Or maybe you’d go on to graduate school and train for a higher profession. In a lot of fields, you could again work your way through. (I got a math Ph.D. by teaching calculus and getting a fellowship from the NSF. I came out debt free.) Or maybe you’d take on some debt to become a doctor or get an MBA, but that was an investment; it would pay off in no time. Once again, if you did well, there were jobs. The economy moved slowly enough that the job you’d pictured when you started grad school would still exist when you finished. And you could imagine (falsely, as it turned out) that it would still be there when you retired.

Life had what the stock-market analysts call visibility (“the extent to which future projections are probable”). You could make a plan and carry it out.

Undoubtedly, things were less certain if you weren’t white or spoke with a foreign accent. And women were just entering a lot of professions in those days, so they had no idea what to expect. But for a native-born white man, the good life was there for the taking. Nobody was exactly giving it to us — at each stage we had to work and succeed, and some of us fell by the wayside. But if you did succeed, the prize would be there. You could count on it.

None of that is true any more.

Today. As I write this I’m in my late 50s, watching my friends limp towards the end of their careers. A lot of them are one re-organization or one leveraged buyout away from unemployment, with no guarantee anyone would hire them at this age.

And their kids … I have no idea what to tell them. Even the most brilliant and energetic can’t predict where they’ll be in a few years. States have gotten out of the business of providing inexpensive high-quality higher education. There are no “safe” majors any more, no degrees that will guarantee a good first job, or even just one that will cover student loan payments. And the jobs themselves … even if you get one and everything seems fine, it can vanish like smoke. Maybe the office will move to Bangalore, or your whole profession will be replaced by an iPhone app. It doesn’t matter how smart or hard-working or well qualified you are. You could be scrambling for survival by this time next week.

Exactly whose fault this is … that’s a complicated question. Maybe the 1%, or the politicians, or technology, or globalization, or just the faceless forces of History. When the average person tries to figure it out, he just throws up his hands. Why? He doesn’t know why. But he knows this: It just feels wrong. And it didn’t used to be this way.

We used to be safe in a City on a Hill, but now there are barbarians at the gates. …

It feels true. That deep anxiety that never quite goes away. The sense that everything you’ve relied on could go “pop!” at any moment. That’s just how you’d feel in a city that was about to fall.

Nothing in the Democratic message addresses that.

What Democrats lack. Everything the Democrats support is on the wrong scale: We want to raise the minimum wage, and subsidize your health insurance, and pay women the same as men, and cut back the war on minor drugs, and create jobs building infrastructure, and put a little less carbon in the air. All good stuff. If you can get it isolated in a ballot question, it will probably pass. But none of it says, “Those are the people I want running things. I’m going to go out and take action to see that they do.”

George Lakoff summarizes the current Democratic strategy like this:

Use demographic categories to segment the electorate, categories from the census (race, gender, ethnicity, age, marital status, income, zip code), as well as publicly available party registration. … Poll on which issues are “most important,” e.g., for women (or single women), for each minority group, for young people, and so on. This separates the issues from one another and creates “issue silos.” … Assume that people vote on the basis of material self-interest and design different messages to appeal to different demographic groups.

What that misses is precisely the caring-about-things-that-don’t-directly-affect-you that the Republican story inspires. If you make minimum wage, then vote Democrat, because we’ll give you a raise. If you’re a poor woman who might get pregnant, we’ll defend your access to abortion. If you’re gay, we’ll support your right to fair treatment. If you’re Hispanic, we might not deport your nephew. If you’re young, we’ll help you deal with your student loans. But if you’re none of those things — or if you are, but not identifying strongly with your categories today — why should you care? What binds all those people together with all the other Democrats and offers them a role in the drama of history?

That’s the kernel of truth behind the charge that Democrats want to “divide America“, or that they try to win by offering “free stuff“. In one sense, those charges are laughable; it’s Republicans who have the big Us-against-Them story, and they are no less willing to offer free stuff to their constituencies. But Democratic strategy and messaging atomizes America. We may have a message for you as a unique combination of demographic categories. But we don’t have an identity to offer you as an American.

Even Lakoff’s proposal doesn’t really fix that problem. He offers a more unified set of principles and ways to advocate them, but the narrative element and the connection to our underlying anxiety is still missing. You can’t fight a story with principles, any more than you can fight it with facts or debunking or appeals to demographic interests.

You fight a story by telling a better story, one that does a better job of ringing true both factually and emotionally, one that draws people in and makes them want to tell that story to others. At the moment, we don’t have a better story. We’ve just got facts.

After you lose, you ought to spend some time in the wilderness, rethinking how you got here. During my time in the wilderness, these are the questions I’m going to be thinking about:

  • What is the real story of America? the one that’s based on actual history rather than fantasy?
  • How is that story playing out here and now, in the lives of everybody?
  • How do we want that story to come out?
  • What would it mean to be on the right side of that story, playing a role you’ll be proud to remember in your old age?
  • How can we offer Americans that kind of role?
By weeklysift | Posted in Articles | Also tagged | Comments (29)

Vote. It’s not nearly enough, but it’s something.

November 3, 2014 – 7:22 am

If you’ve got friends who think they’re “protesting” by not voting, send them this from the Young Turks:

And while we’re on the subject, let’s address the “Both parties are owned by Wall Street” or “neither party represents me” argument: It’s true. There’s lots of stuff I want out of government that neither party is even proposing: single-payer health care, ending the perpetual war, reining in the NSA, enforcing the antitrust laws,  … I could go on.

What that proves isn’t that voting doesn’t matter, but that voting is not enough. In addition to voting, we need to be educating ourselves and our friends, challenging cultural assumptions, mobilizing support around an agenda for more radical change, launching primary challenges to get better Democrats on the ballot, pushing better forms of voting (like instant runoff) and more.

We need to use the political process, and we need a movement like Occupy … plus whatever else you can think of. Not one or the other. Both.

Not voting isn’t a protest, it’s a retreat. Not voting means abandoning the small amount of power the system allots you.

You have a choice tomorrow. There’s one party with a way-too-small response to global warming, and another that that says climate scientists are part of a global conspiracy; one party that keeps the perpetual war simmering reluctantly, and another that would eagerly boil it over; one party that sells out to Wall Street on certain key issues, and another that is 100% owned and operated by Wall Street and the fossil fuel industry; one party with a half-hearted response to economic inequality, and another working to increase inequality; one party that won’t stand up to the theocrats, and another that stands with them. In the near term, one or the other is going to control the government. Which should it be?

Would I like a different choice? Sure I would. But in the meantime I’m going to make the choice I have. Because this one’s simple: Do you want more Ruth Bader Ginsburgs on the Supreme Court or more Anthony Scalias? That decision is going to be made by voters. So don’t you want to be a voter?

Vote. It’s not nearly enough. But it’s something.

By weeklysift | Posted in Articles | Also tagged , | Comments (14)

Not a Tea Party, a Confederate Party

August 11, 2014 – 9:56 am

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

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

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

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

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

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

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

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

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

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

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

A still from The Birth of a Nation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Endnotes

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

Calhoun way up high

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

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

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

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

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

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

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

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

By weeklysift | Posted in Articles | Also tagged , , , | Comments (233)

More Than Just Affirmative Action

April 28, 2014 – 10:57 am

The Court has decided to trust majority rule to defend minority rights. That didn’t work very well the last time.

It’s hard to appreciate this week’s Supreme Court decision on affirmative action without knowing about a case from the 19th century.

The Civil Rights Cases. In 1883, just a few years after Union troops stopped occupying the states of the former Confederacy, the Supreme Court ruled on five cases it combined into the Civil Rights Cases (Wikipedia, text of decision). Eight justices ruled unconstitutional the Civil Rights Act of 1875, which banned racial discrimination in “accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement”. The Court said that Congress had overstepped its power, because the 13th and 14th Amendments only gave it “corrective” power to reverse state laws that denied blacks their civil rights. Congress couldn’t legislate directly to guarantee those rights.

And then the Court went on to make a more sweeping statement:

When a man has emerged from slavery, and, by the aid of beneficent legislation, has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the laws, and when his rights as a citizen or a man are to be protected in the ordinary modes by which other men’s rights are protected.

In other words, if the former slaves needed this kind of protection, they should seek it from their state governments, the way white people would. No doubt that sounded very reasonable to most whites, even most Northern white liberals: Slavery was over; the former slaves were citizens now; they should avail themselves of the protections the law had made for other citizens.

But Douglas Blackmon observed in Slavery By Another Name that things didn’t quite work out that way.

Civil rights was a local, not federal issue, the Court found. The effect was to open the floodgates for laws throughout the South specifically aimed at eliminating those new rights for former slaves and their descendents. … [A] declaration by the country’s highest courts that the federal government could not force states to comply with the constitutional requirement of the equal treatment of citizens, regardless of race, opened a torrent of repression.

As reasonable as it may have sounded at the time, from the perspective of history the Civil Rights Cases decision was the opening bell for the Jim Crow era. Due process and equal protection under the laws had become pro forma rights; if a state preserved certain outward appearances, it need not provide any real equality. Or, more accurately, the state continued to have a moral obligation to provide equality, but the federal government had no authority to enforce that obligation. The lone dissent of Justice John Harlan (not to be confused with his grandson, John Harlan II, a 20th-century Supreme Court justice whose opinions figure as precedents in this week’s ruling) was prophetic:

[I]f the recent amendments are so construed … we shall enter upon an era of constitutional law when the rights of freedom and American citizenship cannot receive from the nation that efficient protection which heretofore was unhesitatingly accorded to slavery and the rights of the master.

Harlan also was the lone dissent in the 1896 Plessy v Ferguson decision that enshrined separate-but-equal. He deserves to be more famous than he is.

Michigan. Now let’s talk about this week’s decision, Schuette v Coalition to Defend Affirmative Action. Like most race cases these days, there has been a back-and-forth that makes the underlying principles hard to sort out: Until 2003, the University of Michigan used race as a consideration for admission to both its undergraduate program and its law school. That year, the Supreme Court ruled on both: It threw out the undergraduate system in the Gratz decision but upheld the law school system in Grutter.

Both cases hung on the same issues, and Justices O’Connor and Breyer were the swing votes. Previous cases had identified only one interest that could justify affirmative action by a state university: the overall educational advantage provided by a diverse student body. In other words, the state couldn’t favor one race for the simple purpose of giving that race an advantage, but it could decide that a diverse student body provides a better education for everyone. (Imagine studying the Civil War in an all-white classroom versus a classroom where other races are represented. Probably the discussions would be very different, and a university might legitimately decide that the mixed-race classroom experience is better.) But the Court insisted that the particular plan to promote diversity had to be narrowly tailored for that purpose, rather than resembling a racial quota system. The law-school plan passed muster under the narrowly-tailored standard; the undergraduate plan didn’t.

But Michigan’s anti-affirmative-action groups weren’t satisfied with a split decision, so in 2006 (as a direct response to Grutter), a referendum added an amendment to the Michigan Constitution banning “preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin” in education, hiring, or contracting by the state or any public institution under the authority of the state. Overall, the amendment passed with a clear 58%-42% majority, but the exit poll showed major demographic splits: White men voted for it 70%-30%, while non-white women opposed it 82%-18%. If you work out the numbers, the entire margin of victory came from white men (42% of the electorate), while everyone else split almost evenly.

So you wind up with two separate levels of dispute: affirmative action itself, but also the limits of democracy. In other words, if the majority doesn’t get its way for some reason, under what circumstances can it change the rules?

The Political Process doctrine. The history of the Civil Rights movement since 1883 has been a story of the white majority changing the rules whenever the black minority seemed about to rectify some disadvantage. If the 15th Amendment gave blacks the right to vote, poll taxes and literacy tests could take it away, while grandfather clauses protected poor or illiterate whites from disenfranchisement. If Arkansas couldn’t keep blacks out of Little Rock’s Central High, the governor could shut the school down. Slavery By Another Name is about how Southern whites circumvented the elimination of slavery itself by inventing bogus crimes that blacks could be convicted of and then sentenced to hard labor.

The Supreme Court cases on race — from the Civil Rights Cases to Brown and beyond into enforcing Brown‘s requirement of integrated schools — revolve around the Court’s increasing realization that it couldn’t deal with state and local governments under the assumption of good faith. The white majority simply did not want blacks to receive due process and equal protection under the laws, and any high principles announced by the Court would be examined for loopholes rather than implemented.

As a result, the Court evolved what came to be called the Political Process doctrine: If a minority achieves one of its goals through the ordinary decision-making process — courts, school boards, elections, etc. — and the majority responds by changing the rules to move the decision to a different body where the minority will lose, that rule-change deserves special scrutiny from the courts. If there was no compelling reason to change the process beyond frustrating the minority, the change is invalid.

Justices Sotomayor, Ginsberg, Scalia, and Thomas all agree that the Political Process doctrine applies to this case. Sotomayor and Ginsberg want to invoke it to invalidate the Michigan constitutional amendment, while Scalia and Thomas want to take this opportunity to reverse the doctrine entirely. The plurality opinion (written by Justice Kennedy, and joined by Roberts and Alito), is another example of something I complained about two weeks ago: covertly reversing decisions without appearing to do so. After Schuette, the Political Process doctrine is dead. While it remains as a precedent, it’s hard to imagine a situation where it could be invoked.

And that development has consequences beyond affirmative action.

The opinions. The plurality opinion (representing Kennedy, Roberts, and Alito) was written by Justice Kennedy. If you’ve been reading the Sift since last summer, you know I don’t think much of Justice Kennedy’s writing style and the muddled mind it seems to represent. (Lower court judges seem not to know how to apply Kennedy’s rulings, which tells you something.) I suspect that’s why the Chief Justice chose Kennedy to write this opinion rather than doing it himself. Any judge who tries to invoke the Political Process doctrine in the future will have to glean some principles of application from Kennedy’s opinion; probably they will just throw up their hands and decide the case on some other basis.

Kennedy reminds us that “It cannot be entertained as a serious proposition that all individuals of the same race think alike”, that there are no clear legal standards for determining the interests of a racial group, or even of defining who is in or out of the group, and so on. If the Court allows that there are racial interests that prevent rule changes, race might be dragged into any number of issues in order to freeze the process in place.

In short, if racial majorities decide to act in bad faith, judges are simply not clever enough to catch them. Kennedy concludes:

Democracy does not presume that some subjects are either too divisive or too profound for public debate.

as if anyone had ever made that claim.

Scalia’s dissent (joined by Thomas) is painful to read, because as he gets older, Scalia is less and less able to pretend that he respects anyone who disagrees with him. So his opinions increasingly contain more attitude than law. But at least he does go through the relevant precedents, explaining why they were all wrongly decided. I would love to hear Justice Scalia’s opinion on the Civil Rights Cases, or whether rule changes that disadvantage a minority should ever be thrown out by the Court. Most of all, I want to hear how he will square all this with what he rules in the upcoming Hobby Lobby case, where the minority seeking protection is abortion-opposing Christian employers.

Justice Breyer’s concurrence shows more honest inner conflict than any of the others. He wants to support both the democratic process and minority rights, but has to come down on the side of democratic process.

the principle that underlies [the Political Process doctrine precedents] runs up against a competing principle, discussed above. This competing principle favors decisionmaking through the democratic process. Just as this principle strongly supports the right of the people, or their elected representatives, to adopt race-conscious policies for reasons of inclusion, so must it give them the right to vote not to do so.

Justice Sotomayor’s dissent (joined by Ginsberg) is as long as all the rest put together, probably because she alone is arguing that the Court needs to pay attention to nuance. Like Scalia, she takes the precedents seriously, but she wants to apply those precedents rather than reverse them. She also thinks the Court needs to consider where the Michigan constitutional amendment fits in the long history of changing the rules to short-circuit minority victories.

As a result of [the amendment], there are now two very different processes through which a Michigan citizen is permitted to influence the admissions policies of the State’s universities: one for persons interested in race-sensitive admissions policies and one for everyone else. A citizen who is a University of Michigan alumnus, for instance, can advocate for an admissions policy that considers an applicant’s legacy status by meeting individually with members of the Board of Regents to convince them of her views, by joining with other legacy parents to lobby the Board, or by voting for and supporting Board candidates who share her position. The same options are available to a citizen who wants the Board to adopt admissions policies that consider athleticism, geography, area of study, and so on. The one and only policy a Michigan citizen may not seek through this long-established process is a race-sensitive admissions policy that considers race in an individualized manner when it is clear that race-neutral alternatives are not adequate to achieve diversity. For that policy alone, the citizens of Michigan must undertake the daunting task of amending the State Constitution.

But that point of view lost. As in last summer’s Voting Rights decision (in which Chief Justice Roberts announced the profound legal principle that “things have changed”) the history of racism and racial progress in America is not considered relevant by the Roberts Court. Going forward, the Court appears ready to assume good faith on the part of the white majority. Let’s hope it works out better this time.

By weeklysift | Posted in Articles | Also tagged , | Comments (5)

Democracy By Coincidence

April 21, 2014 – 9:47 am

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

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

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

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

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

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

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

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

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

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

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

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

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

Here’s what they concluded:

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

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

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

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

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

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

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

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

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

By weeklysift | Posted in Articles | Comments (2)

Themes of 2013: Minority Rule

December 30, 2013 – 10:20 am

It’s hard to remember now how 2013 began: with the Republicans (having believed their own skewed-polls rhetoric) in shock at having lost the 2012 presidential election by five million votes, and having lost even the aggregate House of Representative tally by 1.3 million (even if gerrymandering gave them a majority of seats). But … but … but … the deficit … unemployment … Benghazi … Obama is the worst president ever … real Americans are conservatives …

How could it have happened?

Demographics. The closer they looked at the exit polls, the worse it got. Sure, Obama got 93% of the black vote; everybody expected that. But also 71% of Latinos and 72% of Asians. (Asians? Aren’t they supposed to be the model minority? Don’t they have more makers than takers? How could they side with the Kenyan usurper?) 60% of 20-somethings and 55% of 30-somethings. 70% of folks who list their religion as “none”.

All those groups are growing. The groups that kept the election from being a complete blow-out are the ones that seem to be shuffling off center stage: Over-65s went for Romney 56%-44%. White men voted Republican 62%-35%. (In Teddy Roosevelt’s day, white men were the electorate. How can you get 62% of white men and lose?)

So 2012 wasn’t just a loss for Republicans, it was a loss that augured bigger losses in the future. All the predictions Jonathan Chait had made the previous February in “2012 or Never” seemed to be coming true, and it was looking like Never. As the balls fell and the corks popped to welcome 2013, Republicans were asking: What do we have to do to become the majority again?

Change? Some answers seemed obvious. (The best collection of these answers was put together by College Republicans.) Stop talking about Hispanic immigration as if it were the barbarian invasion of Rome. Tone down the anti-gay rhetoric (not because the gay vote is so pivotal, but because homophobic hate-mongering turns off young straights). Stop pandering to the radical fringe on abortion and other social issues. Come up with competing conservative answers to questions that loom ever larger to middle-class Americans: Where are the jobs going to come from? How are the kids going to pay for college? What will happen to me and my family if I get sick?

The new year brought an obvious issue to focus on first: gun violence. (The first Sift of 2013 started: “This week everybody was talking about guns again.”) Sandy Hook was still fresh when the new Congress was sworn in, and (unlike the response to previous mass shootings), the furor didn’t seem to be dying down.

By wide margins, the public supported universal background checks for gun buyers, re-instituting the assault-weapon ban that President Bush let lapse, and banning the high-capacity magazines that had played such a key role in the Tucson shooting. For a time, some kind of bipartisan gun bill looked to be a no-brainer.
Then we saw the pattern that would repeat itself again and again all year: Some well-funded extremist group (in this case the NRA) rallied the conservative base with scare tactics (Obama was planning to confiscate guns by executive order!), threatened primary challenges against wavering Republicans, and whipped the Republican leadership into line.

In the end, a Republican-led filibuster blocked even a weak-tea gun bill that 54 senators supported.

Something similar happened to immigration reform: In this case a bipartisan bill made it through the Senate only to be refused a vote by the Republican House leadership, which offered no alternative.

Take that, Hispanics! Screw you and your fastest-growing-voter-bloc BS. Think we care? Think again!

Ditto for women, who are already a voting majority. Again and again, Republicans pandered to the an extreme anti-abortion or anti-birth-control minority with the most outrageous proposals and rhetoric. The most extreme recent example is Michigan’s “rape insurance” law, which won’t allow insurance companies to cover abortion (even in cases of rape) in any general-purpose health plan. Unless you planned on being raped and paid in advance for a special abortion rider on your healthcare policy, you’re out of luck.

Did anybody notice a post-2012 let-up in Republican anti-gay rhetoric or an olive branch to people who don’t go to church? Or a Republican jobs plan? Or any healthcare plan beyond “repeal ObamaCare”? Nope.

In the fall, poll after poll showed large majorities against a government shutdown or a threat to the debt ceiling. Did that matter? No.

This isn’t how we’re used to seeing political parties behave. So what’s going on here? How do Republicans plan to persuade a majority of Americans to support them?

It’s simple: They don’t.

Minority rule. That is the single biggest development of 2013: Republicans have given up on the idea of persuading a majority to agree with them. Instead, conservatives plan to rule from the minority.

In the old days that might have meant a military coup or something, but modern minority-rule techniques are much more imaginative. The strategy is simple: take advantage of all the hurdles that exist between the will of the majority and the enforcement of a law. If you can knock that majority down just a little at each stage, what looked like a tidal wave can become just a little ripple.

Defense in depth. Consider all of the structural things Republicans have been pushing. Stop looking at them one-by-one and think about them as a system.

  • Voter suppression. You don’t have to ban people from voting, just make it difficult. Limit the days and hours and number of voting machines so that you create long lines. Find excuses to remove legitimate voters from the roles. Require IDs they don’t have, and don’t accept the IDs they do have. Change the rules late in the game. Plenty of determined people will manage to vote anyway, but all you’re trying to do is knock the numbers down.
  • Unlimited money. You don’t have to buy elections outright, you just want to control them a little. With unlimited money, you can keep incumbents in line by threatening a primary challenge based on fringe issues. You can eliminate the need for volunteers by hiring professionals. You can keep candidates in the race longer or knock them out earlier. You can create issues out of nothing, de-legitimize real issues, or just confuse the voters. You can make the campaign obnoxious and ugly, so that voters don’t want to participate.
  • Gerrymandering. If you concentrate the other party’s voters in a few districts, you can give your party an advantage in a majority of districts, even if you have fewer voters. The paradigm here is Pennsylvania, where a slim Democratic voting majority led to a 13-5 Republican advantage in members of Congress. The Senate itself is a form of gerrymandering: It took 7.7 million Democratic votes to elect Dianne Feinstein to the Senate, but only 102 thousand votes put Republican Lisa Murkowski in. Their Senate votes count the same. (The conservative pipe dream of repealing the 17th Amendment would make this situation worse.)
  • Shadow government. You may think your state laws come from the legislators you elected. Wrong! If your legislature has a Republican majority, chances are your state laws are being written by the American Legislative Executive Council (ALEC), a national pseudo-legislature whose controlling members are corporations rather than people.
  • Emergency managers. Here’s a neat trick: Cut state aid to cities and their school districts, then when they get into financial trouble replace their elected governments with “emergency managers“, i.e., dictators appointed by the governor, who can void union contracts and refuse to fund pensions already earned. More than half of the black citizens of Michigan have lost their right to local government. If the voters don’t like it and vote for repeal, pass the law again and make it referendum-proof. Think that can’t happen in your state or your town? Why not?
  • The Hastert Rule. Immigration reform is one of a number of ideas that are believed to be supported by a majority of House members, but never come up for a vote. Shutting down the government, on the other hand, had only minority support, but it happened. How does that work? The House operates by the majority-of-the-majority principle, a.k.a. the Hastert Rule. Speaker Boehner won’t bring bills up for a vote unless a majority of the House Republican caucus supports them. So instead of needing 218 votes (a majority) to block something, you can do it with only 117 (a majority of the 233-member Republican majority). The logic of primary challenges is similar: It doesn’t matter what the majority of voters in a Republican congressman’s district think, if a majority-of-the-majority (i.e., a majority of voters in his Republican primary) want to throw him out.
  • The filibuster. In the Senate, 41 votes can block legislation. Until recently, 41 votes could also block presidential appointments, which Republicans were using to prevent President Obama from altering the current conservative bias in the judiciary. So the senators representing the 21 smallest states — total population 35.4 million, or about 11% of the country — can block any law.
  • Hostage-taking. Sure a minority can block things, but how can they pass laws of their own? Simple: take hostages. That’s what the 2013 government shutdown and debt-ceiling crisis was about. An extremist minority could block the government from taking necessary actions, and what it wanted in return for not burning down the house was to repeal ObamaCare. Ordinarily that would take a majority, but not if you have a gun to the economy’s head.
  • Nullification. A similar tactic was implicit in a new use of the filibuster to nullify existing laws. Refuse to approve anybody to certain enforcement positions. So, you would need a majority to scrap all the nation’s labor laws, but they can’t be enforced if the National Labor Relations Board doesn’t have a quorum, and you can block appointments via the filibuster. Voila! No labor laws! (Nullification is what caused Democrats to eliminate the filibuster on presidential appointments.)
  • Judicial activism. Even if a law makes it past all those hurdles, it just takes five Supreme Court justices to declare it unconstitutional. The integrity of the system depends on judges not abusing their power, but sometimes they do. During the Warren Court of the 1960s, judicial activism was a liberal thing. That’s ancient history now, as we saw most clearly in the ObamaCare decision. At the time the Affordable Care Act was passed, there was no legal precedent to justify invalidating it, and few legal analysts were concerned about the possibility. (Salon’s Andrew Koppelman: “The constitutional limits that the bill supposedly disregarded could not have been anticipated because they did not exist while the bill was being written.”) But in a matter of months, a new interpretation of the Commerce Clause was invented and gained the support of the Court’s five conservative justices. (Justice Roberts narrowly saved the law by re-interpreting the individual mandate as a tax rather than a penalty, but the new narrowing of the Commerce Clause stands and could skewer any number of government programs in the future.) Conservative judicial activism has been key in the whole minority-rule enterprise, by unleashing the unlimited money and opening the door to voter suppression, which red states have been happy to walk through.

Across the board, Republicans are defending and in some cases sharpening the tools of minority rule. So if they annoy a majority of Americans with their extremist agenda, who cares? Democrats would need a really large majority, say 5-7%, just to overcome gerrymandering and get even in the House, not to mention getting 60 votes in the Senate. And even then, unlimited money can usually buy a handful of Democrats with a local special interest, and the Supreme Court can invent new kinds of “religious freedom” or “corporate rights” to keep any real change from happening.

The long term threat. In the long run, a dedicated majority can get its way. If Democrats can win the state legislatures in 2020, they can de-gerrymander both the congressional districts and the legislative districts within the states. If Democrats can hold the presidency long enough, they can end conservative judicial activism. Then, if that same dedicated majority will keep those Democrats honest, there’s a chance America can start controlling money in politics and make progress towards real democracy that serves the public interest.

But that’s the question: Will a majority stay dedicated, through years of watching politics amount to nothing? Those young people who believed Candidate Obama when he said, “Yes we can” — what will become of them? What if they conclude “No we can’t” and just stop bothering?

That’s the ultimate goal of minority rule: a discouraged majority that stops looking to political action as a way to solve its problems.

By weeklysift | Posted in Articles | Also tagged | Comments Off on Themes of 2013: Minority Rule

The Filibuster and the War on Women

November 4, 2013 – 11:48 am

The abuse of the filibuster is a hard issue to get people excited about. It’s one of those technical political things that takes too long to explain and is hard to connect to problems voters care about.

This week, making those connections was a little easier. If you care about a woman’s right to decide whether she gets pregnant or has a baby, the connection to the filibuster was all too clear. Here are three of this week’s big stories:

  • Senator John Cornyn threatened to filibuster anyone President Obama nominates to the D. C. federal appeals court. He’s not making objections to the specific judges Obama has picked, he’s arguing that Obama shouldn’t be allowed to make any picks at all. The court’s current 4-4 conservative/liberal balance should be locked in, no matter how many elections Democrats win.
  • That same court issued a temporary injunction to suspend ObamaCare’s contraception mandate for certain firms, in anticipation of a permanent ruling that employers’ religious freedom gives them power over employees’ health decisions. The judge who wrote the majority opinion is a radical conservative that Democrats tried to block when President Bush nominated her, but they had to back down when Republicans threatened the “nuclear option” to eliminate the filibuster permanently.
  • Another judge from that same batch of Bush appointees lifted a lower-court injunction against a Texas anti-abortion law that (among other restrictions) instantly closes about 1/3 of Texas abortion clinics, leaving large areas of the state without abortion services, again in anticipation of the law’s ultimate approval.

Let’s take those one at a time.

Filibuster abuse and the D. C. court. Wikipedia describes the federal appeals court for the District of Columbia circuit like this:

While it has the smallest geographic jurisdiction of any of the United States courts of appeals, the D.C. Circuit, with eleven active judgeships, is arguably the most important inferior appellate court. The court is given the responsibility of directly reviewing the decisions and rulemaking of many federal independent agencies of the United States government based in the national capital, often without prior hearing by a district court. Aside from the agencies whose statutes explicitly direct review by the D.C. Circuit, the court typically hears cases from other agencies under the more general jurisdiction granted to the Courts of Appeals under the Administrative Procedure Act. Given the broad areas over which federal agencies have power, this often gives the judges of the D.C. Circuit a central role in affecting national U.S. policy and law.

A judgeship on the D.C. Circuit is often thought of as a stepping-stone for appointment to the Supreme Court.

The court has 11 active judgeSHIPs, but only 8 active judges. (It had only 7 — and a 4-3 conservative majority — until Obama finally got his first pick approved in May. It also has six semi-retired senior judges. If you count them, the court has a 9-5 conservative majority.) That’s because there are three vacancies. The Constitution (Article II, Section 2) specifies how those vacancies should be filled:

The President … shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for

The filibuster is a historical accident. The Founders didn’t envision it, and although an 1806 rule change made filibusters possible, the first one didn’t happen until 1837. They were rare until the 1970s, and truly skyrocketed when the Republicans became the Senate minority after the 2006 election.

Filibusters of presidential nominations were rare until the Clinton administration, and then Democrats retaliated during the Bush years. But even then, the justification for a filibuster was always some alleged problem with the individual nominee. (Bush nominee Janice Rogers Brown, for example, was filibustered for a history of inflammatory decisions, having once written of Social Security: “Today’s senior citizens blithely cannibalize their grandchildren because they have the right to get as much ‘free’ stuff as the political system will permit them to extract.”)

What’s new in the Obama years is the use of the filibuster to nullify a federal office by refusing to approve anyone to head it, regardless of character or qualifications. Until Senate Democrats threatened to invoke the so-called nuclear option in July, Republicans were on track to invalidate the entire National Labor Relations Board, essentially nullifying all laws protecting workers’ rights to organize unions and bargain collectively in good faith.

Cornyn proposes an extension of this unprecedented tactic: using the filibuster to nullify the three vacancies on the D. C. court, ostensibly because the court’s case load doesn’t require 11 judges. (He wasn’t bothered by an even lower case load when Bush appointed Rogers.)

If over-staffing of the D.C. court is indeed a problem (and not just a pretext to stave off a liberal majority), the Constitution provides a way to solve it in Article I, Section 8:

The Congress shall have Power … To constitute Tribunals inferior to the supreme Court

In other words, Congress could pass a law shrinking the D. C. court, if that were really a problem. But legislation requires a majority vote in both houses and the signature of the President, which Cornyn can’t get because his party can’t win national elections.

This is what the filibuster has become: not just a way to block new laws or objectionable appointments, but a way for a minority to repeal legislation already passed or to achieve its goals without passing laws at all.

Who needs to win elections?

The contraception mandate. Thursday, the previously mentioned Janice Rogers Brown (of Social-Security-is-cannibalism fame) was the deciding vote in a 2-1 decision by the D. C. appeals court to grant an injunction blocking enforcement of ObamaCare’s contraception mandate on a business owned by two Catholic brothers. The ruling isn’t a final decision in the case, but it reads like one, because one key consideration in granting such an injunction is a belief that the injunction-seeking side is likely to prevail.

Fortunately, Rogers stopped short of declaring that corporations are protected by the First Amendment’s free-exercise-of-religion clause, which would have produced true chaos. But the 400-employee company is owned by two brothers who claim to operate according to Catholic principles (i.e., having pro-life bumper stickers on their trucks), so the brothers’ religious freedom is violated by the requirement that they provide contraception coverage to their female employees.

I’ve stated my position on this issue at length before: I believe these claims of “religious freedom” are actually passive aggression, stretching claims of one’s own moral purity to ridiculous lengths in order to control the behavior of others. I was pleased to see many of my own favorite arguments show up in the dissenting opinion of  Senior Judge Harry Edwards (the only Democratic appointee among the senior judges) (I’m not claiming Edwards reads the Sift or that the arguments are original to me):

It has been well understood since the founding of our nation that legislative restrictions may trump religious exercise. Braunfeld v. Brown, 366 U.S. 599, 603 (1961). Were it otherwise, “professed doctrines of religious belief [would be] superior to the law of the land, and in effect permit every citizen to become a law unto himself.”

and illustrates the point with an example Sift readers will recognize:

A Christian Scientist, whose religion has historically opposed conventional medical treatment, might claim that his corporation is entitled to a religious exemption from covering all medical care except healers who treat medical ailments with prayer.

Edwards sees the conflict between the owners’ religious beliefs and the mandate, but does not find that it meets the legal standard of a “substantial burden”, using another analogy I’ve used here.

The Supreme Court has never applied the Free Exercise Clause to find a substantial burden on a plaintiff’s religious exercise where the plaintiff is not himself required to take or forgo action that violates his religious beliefs, but is merely required to take action that might enable other people to do things that are at odds with the plaintiff’s religious beliefs.

… The Gilardis do not contend that their religious exercise is violated when Freshway pays wages that employees might use to purchase contraception, and the Mandate does not require the Gilardis to facilitate the use of contraception any more directly than they already do by authorizing Freshway to pay wages.

Edwards quotes a 1982 Supreme Court decision:

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

If not for the filibuster, that might be the majority opinion.

Texas abortion law. One of the other Bush judicial appointees who made it through the Senate under threat of the nuclear option was Priscilla Owen, whose appointment the Houston Chronicle opposed with these words:

The problem is not that Owen is “too conservative,” as some of her critics complain, but that she too often contorts rulings to conform to her particular conservative outlook. It’s saying something that Owen is a regular dissenter on a Texas Supreme Court made up mostly of other conservative Republicans.

No less a conservative than Alberto Gonzales once characterized Owen’s opinion in a Texas abortion case as “an unconscionable act of judicial activism”. In other words, even among conservative judges, she stood out as particularly radical.

The stipulation in the recent Texas abortion law (the one Wendy Davis delayed for a session with her famous state-legislature filibuster) that doctors who perform abortions have admitting privileges in local hospitals is one of a number of regulations designed to close clinics, and is largely devoid of any legitimate purpose. The lower-court judge found that the law was “without a rational basis and places a substantial obstacle in the path of a woman seeking an abortion.” Similar laws in Wisconsin and other states have been blocked by federal judges.

But thanks to Judge Owen, this one is allowed to take effect. Abortion clinics are already closing, and it is estimated the 1/3 of all abortion clinics in Texas — already not that common — will be unable to meet the requirement.

End the filibuster. Right now, conservatives are benefitting from the fact that Senate Republicans have been more willing to play hardball than Democrats. Democrats under Bush attempted to block only the most outrageous nominees, and for the most part they failed. Those judges are on the bench now, fighting the war on women.

That’s just one front of the struggle, the one whose dots were most easily connected this week. Ultra-conservative judges have brought us Citizens United, came close to constructing an entirely novel interpretation of the Commerce Clause specifically to torpedo ObamaCare, and across-the-board have extended the rights of corporations and the rich over workers, consumers, and the general public.

President Bush did not try to be “reasonable” in his appointments or seek uncontroversial nominees. He nominated the most activist conservative judges he could find, and Senate Republicans refused to let the Democrats filibuster even the worst of them.

Now that the tables have turned, the filibuster has been expanded into a general tool of minority rule. It’s time to end it, once and for all.

By weeklysift | Posted in Articles | Also tagged , , | Comments (2)