Monthly Archives: September 2023

The Administrative State

One basic question is at the foundation of political philosophy: what should government do? Or perhaps a different formulation is clearer: what is government for?

People who engage with that question begin with the basics: governments were created to prevent some citizens from harming others. (In that pesky “state of nature,” the strong can take advantage of the weak.) That seemingly simple formulation, it turns out, is not really so simple, because it raises a very thorny question: what’s the nature and extent of harm that government should be empowered to prevent or ameliorate? 

Even harms that most of us consider obvious turn out to be less than simple. Government should certainly enforce laws against murder, for example, but how do we define “murder”? Must it be intentional? What about self-defense? Warfare? 

When we get to other kinds of harm, the arguments mount. Local ordinances against smoking in restaurants and bars are relatively recent reactions to newly recognized harms from passive smoke–and those rules have encountered considerable resistance. What about seat belts? Does a refusal to “buckle up” harm anyone other than the unbuckled person who gets into an accident? Can the government that insists you buckle up also make you eat your vegetables?

When does legitimate authority become the nanny state?

Political philosophers have debated these issues at least since the Enlightenment, and most of us recognize that modern life has made them much more difficult. People living on widely scattered farms where they grow their own food require fewer rules than people who live in cities and depend upon government agencies to ensure the safety of the foods on their grocery shelves.

One of America’s many, many ideological divisions grows out of the debate about government’s role in protecting us from a wide variety of previously non-existent harms: airplanes colliding in mid-air, contaminated foods on those grocery shelves, pollutants discharged into our rivers and streams, internet scams. What is generally called “the administrative state” has grown out of the need for government to monitor and prevent such harms.

Which brings me to the current attacks on that administrative state. As participants in one recent podcast argued,

Since the Reagan administration, conservatives and their allies in the business community have had regulatory agencies in their crosshairs. Institutions like the Occupational Safety and Health Administration, or OSHA; the Environmental Protection Agency, or EPA; and the Food and Drug Administration, or FDA—all aim to protect the health and safety of the citizenry. But the agencies, and the dedicated civil servants who work at them, are seen in some quarters as examples of unnecessary executive authority. Steve Bannon even called “the deconstruction of the administrative state” a main goal of the Trump administration.

The obvious question is: what would the United States look like without the administrative state?  On How to Save a Country, the hosts asked that question of K. Sabeel Rahman. Rahman was associate administrator of the Office of Information and Regulatory Affairs in the Biden administration until earlier this year and  is the co-founder and co-chair of the Law and Political Economy Project, former president of the think tank Demos, and the author of several books on democracy.

The older argument was between progressives who believe that poverty and inequality are harms that government should address through mechanisms like Social Security and Medicare, and the (usually privileged) folks who disagree. 

The podcast focused on how that argument has changed, and why today’s Right is so focused on dismantling the “administrative state.” What do they really mean when they say “drain the swamp?”‘Rahman addressed that question.

Our new dangers always have their seeds in the old, but I do think there’s something different and maybe especially dangerous about the moment we’re in now. There’s absolutely a good faith understandable set of debates that we have been having forever and we’ll continue to have about the appropriate reach and scope of government from liberal versus libertarian standpoints. And that’s fine. What I think is not fine is the legal guerrilla warfare that I think we’re starting to see … I don’t think it’s just libertarianism of the familiar kind. This is really a white supremacist ideology wearing a different set of clothes. It’s about dismantling the parts of government that are trying to create a more inclusive, egalitarian society and leaving unchecked and unshackled the parts of government that terrorize communities of color. The Bannonites are not at all troubled by ICE and CBP and the way the Trump administration treated migrants at the border. 

There is much more in the podcast–much of it about the fact that the complexity of modern harms and the acknowledged deficits in administrative processes require officials with expertise.

It’s worth a listen.

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The Politics Of Crime

There’s a reason for that old journalism mantra “if it bleeds, it leads.” Most people are concerned about their own safety, for one thing, and are more likely to read about threats that might affect them. And crime is (superficially) straightforward and easy to understand. Good guys versus bad guys.

The characteristics that explain media’s focus on crime also apply to political campaigns, particularly at the local level. Here in Indianapolis, the Republican candidate for mayor has run a campaign almost entirely focused on the incumbent’s asserted inability to reduce criminal activity, insisting that he–the Republican–“has a plan.”  (Presumably, the incumbent doesn’t?) 

This campaign strategy–and the interminable advertisements hawking it–really annoys me.

For one thing, it ignores the fact that criminal activity in Indianapolis is hardly unique; our problems mirror national ones. This single-minded and exaggerated focus on crime also ignores the multiple other areas of governance that a mayor is responsible for providing. (Listening to those ads, you’d be forgiven for thinking this guy is running for sheriff, not mayor.)

Of course, the campaign in Indianapolis is pretty standard GOP strategy. The “law and order” party (a label that–given MAGA and Donald Trump–makes sentient Americans laugh) continues to scream about crime–which it almost always attributes to urban areas. (After all,  Blue cities are where most of those scary Black folks live…)

The data begs to differ.

Republican politicians often treat it as an established fact: Where they are in power, crime is low. Where Democrats are in power, crime is high.

“Republican-run cities are doing very nicely because they arrest people when you have crimes,” Donald Trump told Tucker Carlson last week.

“The cities and these left-wing states allowing criminals to run wild on our streets, that doesn’t work,” Ron DeSantis, Florida’s governor, said in March, citing New York in particular.

But party rule does not drive crime. Consider DeSantis’s state, Florida. Its homicide rate was roughly 50 percent higher than New York’s in 2021. Florida’s two most populous cities, Jacksonville and Miami, each had a homicide rate more than double New York City’s last year, even though both had Republican mayors.

 As the article points out, the data shows no connection between political partisanship and crime. “To put it another way, prominent Republicans are misrepresenting the country’s crime problem.”

The linked article referenced a number of reasons for America’s stubborn crime rates, especially the widespread availability of guns.

Access to guns is another major factor, particularly for murders. Guns make any conflict more likely to escalate into deadly violence, and they can embolden criminals. On this issue, there is a partisan divide — Democrats are more comfortable regulating firearms — and that could help explain higher levels of violence in Republican states, especially in the South. It can also explain violence in cities, which get a lot of guns from Southern states with laxer laws.

Indiana’s legislature, which is dominated by rural interests and which includes a number of members who are widely considered “gun nuts,” has ensured that the Hoosier state’s gun laws are as lax as those of any Southern state, if not more. 

Mike Leppert recently had a column on the costs of that laxity. In the wake of the last mass shooting, he wrote 

We don’t ever talk about what it all costs. No, in most circles, it doesn’t get a mention. An accounting of the cost of guns is rarely undertaken, and when it is, the numbers are so shocking and enormous, the study usually falls victim to the post-truth era in which we live.

After confirming that in the year since “permitless” carry became the law in Indiana, gun related crime increased, Leppert wrote

As reported by Casey Smith of the Indiana Capital Chronicle on Aug. 21, accidental shootings are on the rise. Smith wrote: “Since July 2022, the Indianapolis Metropolitan Police Department (IMPD) has been tracking accidental shootings, specifically. IMPD found non-fatal, accidental shootings more than doubled in February 2023 compared to February averages in the last 5 years. There were as many as 75 such incidents for the last half of 2022, and more than 75% of those were self-inflicted.”

There’s a cost to each one of them. Medical costs. Emergency responses. Productivity loss….

Everytown Research and Policy published its sweeping report on the cost of guns in July of last year. The number? $557 billion annually, or nearly $1,700 for every resident in America.  Not every gun owner. Not every NRA member. Every resident….

What does culture get for this Faustian bargain? Gun owners get freedom. They get a false sense of safety and security. They get identity.

The rest of us just get the tab.

And Republican candidates supported by the NRA get dishonest talking points…..

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Is The Tide Turning?

I’ve just finished a really good book by Dan Pfeiffer, “Battling the Big Lie.” Pfeiffer handled communications in the Obama White House and is currently the host of the podcast “Pod Save America.”

One of the many, many important points he makes in that book is that Democrats have a “message over megaphone” problem–“Democrats spend 99 percent of their time worrying about what they should say, and only one percent figuring out how to get people to hear what they are saying.”

Pfeiffer spends a significant amount of time describing the outsized effect of the Right’s media ecosystem, including two chapters on Fox. I’ll undoubtedly have more to say about the book  (okay, I probably loved it so much because his analyses mostly mirror mine…), but today I want to focus on an article about Fox I came across just after finishing it.

The American Prospect’s Kuttner on Tap reports that Fox’s troubles didn’t end when it paid Dominion zillions of dollars for lying about that company.

Fox is both a network and the owner of 29 individual lucrative TV station franchises, including in 14 of the 15 largest markets. Their licenses require renewal by the FCC every eight years.

Fox’s license for its Philadelphia station is currently up for renewal, and several public-interest groups are opposing that renewal.

The FCC’s criteria for renewal include “character,” defined in great detail, a test that Fox flagrantly flunks, especially given its admissions in the Dominion case. On August 23, the Commission agreed to take public comment on this question.

Opponents of renewal include Jamie Kellner, the founding president of Fox News. Kellner’s  letter to the FCC included the following:

Unlike the news feeds provided today by Fox News Channel, our news feeds did not prominently feature advocates like Rudy Giuliani and Sidney Powell spouting nonsensical lies about a Presidential election … If the character requirement for broadcast licensees is to have any meaning, the FCC must designate the application for a hearing to evaluate the Murdochs’/Fox’s character qualifications…

Others who have filed objections include Alfred Sikes, a former Republican FCC chairman,  Ervin Duggan, a former Democratic FCC Commissioner, and ex–Fox News Channel commentator Bill Kristol.

In yet another filing, the Media and Democracy Project pointed out that:

FOX knew—from the Murdochs on down—that Fox News was reporting false and dangerous misinformation about the 2020 Presidential election, but FOX was more concerned about short-term ratings and market share than the long-term damage caused by its spreading disinformation.

FOX’s lies concerning the outcome of the 2020 election caused a great injury to the American people and the institutions of our democracy. FOX’s willingness to lie demonstrates a fatal character flaw.

It’s hard to see how Fox can get its license renewed if there is a hearing on the merits. There are just too many examples of Fox’s deliberate disinformation. Kuttner predicts that the Philadelphia challenge will be followed by 28 more, as Fox’s other licenses come up for rolling review.

If Fox does get its license, we might as well scrap the FCC as meaningless. As the Media and Democracy petition puts it:

This is not a First Amendment case. Rather the issue here concerns a corporation that, with the full knowledge and approval of its management, lied to millions of Americans. The question before the Commission is not whether FOX had a right to lie, rather it is about the consequences of those lies and the impact on FOX’s qualifications to remain an FCC licensee.

If a blogger or independent Internet source lies, the First Amendment protects them. The government has no legal recourse. But government has the right–and, I would insist, the duty–to ensure that those competing for use of one of the limited public airwaves adhere to certain standards as a condition of the award.

The Dominion lawsuit proved (as if we had any doubt) that Fox  lies to the American public with the full knowledge and approval of its management.

As Kuttner correctly notes, the question isn’t whether FOX had a right to lie. But I disagree with his assertion that the issue is the negative consequences of those lies. The issue I see  is the right of a corporation to use public airwaves to deliver deliberate disinformation in blatant violation of its license with the FCC.

Fox demonstrably violated numerous terms of that license, just as Trump knowingly violated numerous laws. If neither suffers the consequences that less powerful miscreants would suffer, that result would undermine the most basic tenet of the rule of law: that no one is above the law.

As the saying goes, every journey begins with a single step. Opposition to Fox’s Philadelphia renewal represents a welcome first step toward dismantling the Right’s megaphone. Bravo to the opposition!

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Clarifying The Stakes

I have often remarked upon the dramatic changes during my lifetime in what people consider “conservative.” I’ve speculated about the causes, pointed to the inconsistencies and hypocrisies of the contemporary GOP, and speculated that the current “conservative” movement (note quotation marks) is basically an intellectually incoherent expression of MAGA’s underlying fear and racism.

The fear and racism are certainly there, but recently I came across an essay in Persuasion that described an all-too-coherent philosophy underlying the current assault on the American Idea. 

Broadly speaking, there are two different kinds of contemporary American conservatism. The more familiar—traditional conservatism—holds that the founding principles and institutions of the American polity remain sound but have been distorted by waves of progressive activism that have eroded our commitment to individual liberty and limited government. The task is to preserve these fundamentals while restoring their original meaning and function. 

The second kind of conservatism claims that America was flawed from the start. The focus on individual rights comes at the expense of community and the common good, and the claim that government exists to preserve individual liberty creates an inexorable move toward moral anarchy. These tendencies have moved us so far from traditional decency and public order that there is little of worth left to “conserve.” Our current situation represents a revolution against the forces—religion, strong families, local moral communities—that once limited the worst implications of our founding mistakes. The only remedy for this revolution is a counter-revolution. Instead of limited government, we need strong government capable of promoting the common good and defending moral common sense against the threat posed by unelected elites.

This proposed counter-revolution has little to do with conservatism as traditionally understood. It seeks not to limit the flaws in our founding principles but to replace them. Specifically, it is a revolt against liberalism, the political theory rooted in the Enlightenment that inspired the Declaration of Independence. This New Right is unabashedly anti-liberal, at the level of philosophical principle as well as political practice.

The essay distinguishes between different kinds of anti-liberalism. Fascism, for example, finds legitimacy in the “culture and spirit of a specific people.”  Then there is what the essay calls integralism, defined as a distinctive form of religious anti-liberalism that originated within Catholicism.

It arose many centuries before the emergence of liberalism, as a justification for the integration of Catholicism and political power that began under the Roman emperor Constantine and was completed in 380 by emperor Theodosius I, who embraced Christianity not only as his personal religion but also as the religion of his realm. At the end of the next century, Pope Gelasius I formalized the Catholic understanding in his famous distinction between priestly and royal authority. In matters concerning religious practice and ultimate salvation, Gelasius argued, political authorities are required to submit to the authority of the Church. 

The essay proceeds to outline the history of this melding of church with state, and its eventual decline, thanks to the Protestant Reformation, the Enlightenment, and the French Revolution. While MAGA voters are highly unlikely to have heard of integralism, its resurgence among intellectuals on the Right is clearly influencing and shaping our current culture war. “Integralism” is at the root of current attacks on the very basis of the Enlightenment liberalism that undergirds America’s Constitution and Bill of Rights.

Liberal philosophy distinguishes between public and private, and prohibits government from invading the zone of personal autonomy. Liberals may argue about where the line between public and private should be drawn, but they agree that the distinction exists and–more importantly– that it is morally fundamental.

Integralists “reject freedom of religion, and they are prepared to use government power in the name of public morality to control what liberals consider private and individual decisions.” They reject the goal of a legal or public culture that is neutral– that accommodates different beliefs about morality and/or religion.

That philosphical approach explains a lot.

For Integralists, culture war is the only war: seeing neutrality as a myth, they see the battle as Manichean, a war between advocates of personal autonomy and defenders of (their version of) traditional morality. 

This explains one of the most confusing aspects of Republicans’ U-turn from their former commitment to limited government. These “common good constitutionalists” want a government with the power to impose their version of the good society on everyone.

If political power always shapes culture, as increasing numbers of traditionalists are coming to believe, they will conclude that they must seize and use this power—if necessary, without the limits they have long advocated.

It’s a war between fundamental–and irreconcilable–world-views. One is consistent with American constitutionalism; one is unambiguously not.

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Another Looming Threat

Is it time to re-examine some aspects of the U.S. Constitution? Undoubtedly. Is it incredibly difficult to amend that document in today’s polarized political environment? Yes. Does the undeniable accuracy of those observations support the growing movement to convene a Constitutional Convention?

Absolutely not.

Every so often, a reader will remind me that there is a stealth movement by far-Right activists to call such a convention–a reminder that makes the hair on the back of my neck stand up, because the goals of those ideologues are entirely inconsistent with the values of the U.S. Constitution and Bill of Rights.

A recent article from the Intelligencer explained who those activists are and what they hope to achieve.

On a recent spring morning outside the Pennsylvania State Capitol, a group of activists gathered to terminate the Constitution. Around 100 people drove in to Harrisburg from all over the state, showing up clad in white T-shirts and buttons depicting an American flag that nests COS, short for Convention of States, in the star area. Claiming endorsements from the likes of John Eastman, Sean Hannity, and Ron DeSantis, COS is a deep-pocketed right-wing movement that is quietly campaigning for states to call a constitutional convention, the first since 1787. “The government is out of control,” said Roy Fickling, a construction-industry retiree sitting on the balustrade. “It’s the only way to stop them.”

Just after 9 a.m., Rick Santorum waded into the crowd to deliver a speech about the “complete destruction” of America and the urgent need for a convention to radically amend the nation’s supreme law. “This is an existential fight,” said the Republican former Pennsylvania senator who is now a COS senior adviser. “It’s not about politics. The people on the left do not want the same America as you do. This is about good and evil.” The crowd applauded. He then went on to talk about trans issues. “The reality is this is a moment where we need patriots, just like we did in 1776.”

This effort is marketed as a move to cure what these activists see as the most pressing problems of the nation: ballooning debt and a “tyrannical” federal government.

Article V of the Constitution lays out two amendment mechanisms. The first is the one with which we are familiar. It has been used successfully 27 times. Congress passes an amendment by a two-thirds vote in each chamber, and three-fourths of the states ratify it. The second process has never been used; it requires two-thirds of the states to pass resolutions calling for a convention where delegates from the states can propose amendments.

To anyone disheartened by congressional gridlock, Article V may seem like a seductive idea. While proposed amendments would theoretically also have to be ratified by 38 states, that is cold comfort to the legal scholars who see calling a convention as a constitutional crisis waiting to happen. “The only precedent is the Philadelphia convention from 1787, and they ended up junking the Articles of Confederation and writing a whole new constitution,” said David Super, a professor at Georgetown Law. So far, COS has won 19 states of the 34 necessary to force such a convention.

The last century saw three major Article V movements, two of which reached 33 and 32 states.

While the idea may seem too outlandish to catch on, so did others. The independent-state-legislature theory made it all the way to the Supreme Court. The Second Amendment was once viewed by legal scholars as a clause regulating militias.  Abortion was a constitutional right for half a century.

We live in unsettled times…

The article identifies Meckler–the head of COS– as part of a “vast web of billionaire-funded right-wing efforts pushing radical movements to consolidate power under the guise of populism.”

The article is lengthy, delving into the background of Meckler, who comes across as a talented con man. It documents his transformation from moderate Left to hard Right–a transformation that made him useful to right-wing donors and led in turn to COS.

Meckler pitched the idea to the American Legislative Exchange Council, a clearinghouse for conservative policy, which became a key proponent, and COS began racking up state resolutions in the South and endorsements from Marco Rubio, Mike Huckabee, and James O’Keefe. In 2016, COS hosted a mock convention, where over 100 state lawmakers adopted amendments that would, among others, repeal the income tax and allow a vote of 30 state legislatures to nullify federal laws. Critics of COS “actually said something truthful,” Meckler told Mark Levin, another supporter. “They said, ‘This is intended to reverse 115 years of progressivism,’ and we say, ‘Yes, it is.’”

The Convention of States is just one more threat–as if we needed another!– to the American Idea….

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