Public Policy and Governance – Page 70

Give The Man Points For Honesty

The morphing of America’s conservative movement into something much darker has been going on for a long time. I still recall my youngest son’s response, over twenty years ago, to a colleague who’d invited him to join the local branch of the Federalist Society. He declined, explaining that he didn’t look good in brown shirts…

Even then, the trajectory was clear. Today, the fascists are coming out of the closet.

Last week, The Federalist published an essay that was certainly forthright: it was titled “We Need To Stop Calling Ourselves Conservative.” Here’s the lede:

Why? Because the conservative project has largely failed, and it is time for a new approach. Conservatives have long defined their politics in terms of what they wish to conserve or preserve — individual rights, family values, religious freedom, and so on. Conservatives, we are told, want to preserve the rich traditions and civilizational achievements of the past, pass them on to the next generation, and defend them from the left. In America, conservatives and classical liberals alike rightly believe an ascendent left wants to dismantle our constitutional system and transform America into a woke dystopia. The task of conservatives, going back many decades now, has been to stop them.

A “woke dystopia” is presumably a country that extends those “individual rights and freedoms” to citizens who were previously denied them. The author is rather clearly horrified by the prospect of allowing women and LGBTQ+ citizens to participate in society on an equal basis.

After all, what have conservatives succeeded in conserving? In just my lifetime, they have lost much: marriage as it has been understood for thousands of years, the First Amendment, any semblance of control over our borders, a fundamental distinction between men and women, and, especially of late, the basic rule of law.

The rest of the essay is a call to abandon notions of limited government (which is not the same thing as small government, a distinction which seems to elude the author) in favor of acquiring and weaponizing the power of the state to “stop the Left.” The author wants the Right to use the power of government as “an instrument of renewal in American life — and in some cases, a blunt instrument indeed.”

And how would that instrument be deployed?

To stop the disintegration of the family might require reversing the travesty of no-fault divorce, combined with generous subsidies for families with small children. Conservatives need not shy away from making these arguments because they betray some cherished libertarian fantasy about free markets and small government. It is time to clear our minds of cant.

In other contexts, wielding government power will mean a dramatic expansion of the criminal code. It will not be enough, for example, to reach an accommodation with the abortion regime, to agree on “reasonable limits” on when unborn human life can be snuffed out with impunity. As Abraham Lincoln once said of slavery, we must become all one thing or all the other. The Dobbs decision was in a sense the end of the beginning of the pro-life cause. Now comes the real fight, in state houses across the country, to outlaw completely the barbaric practice of killing the unborn….

Drag Queen Story Hour should be outlawed; that parents who take their kids to drag shows should be arrested and charged with child abuse; that doctors who perform so-called “gender-affirming” interventions should be thrown in prison and have their medical licenses revoked; and that teachers who expose their students to sexually explicit material should not just be fired but be criminally prosecuted.

There’s much more, but the cited paragraphs are illustrative. The message is unmistakable: government should be used as a weapon against anyone who differs from the author’s theocratic/nationalistic/paternalistic worldview.

The author is not some rogue essayist invited by the magazine to provoke a discussion; his name isJohn Daniel Davidson and he is a senior editor at The Federalist.

Actual conservatives–including Bill Kristol– have responded negatively. As one blogger wrote:

Davidson’s “restorationists” could probably be better described as “revanchists,” as they not only want to restore lost territory but also to “retaliate” against those who have torn apart the glorious world he imagines we once had.

It’s an explicitly authoritarian vision. The word “democracy” never once appears in the essay, and references to the concept only refer to events in the past…

Once in power, the revanchists should forget all about the (alleged) conservative idea of “small government” and instead learn to love Big (Brother) Government, inserting it deeply into private life.

Dobbs was just the beginning.

The blogger went on to compare Davidson’s explicit goals to the elements of fascism, and to confirm the fit.

In eight days, Americans will either vote Blue–or vote to buy brown shirts.

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The New Gatekeepers?

Speaking of media and information failures…

Any competent historian will confirm that propaganda and misinformation have always been with us. (Opponents of Thomas Jefferson warned that bibles would be burned if he were elected). The difference between that history and the world we now occupy is, of course, the Internet, and its ability to spread mis- and disinformation worldwide with the click of a computer key.

As a recent column in the New York Times put it, the Internet has caused misinformation to metastasize.

The column noted that on July 8, Trump had taken to Truth Social, his pathetic social media platform, to claim that he had really won the 2020 presidential vote in Wisconsin, despite all evidence to the contrary. Barely 8000 people shared that “Truth.” And yet

Within 48 hours of Mr. Trump’s post, more than one million people saw his claim on at least dozen other sites. It appeared on Facebook and Twitter, from which he has been banished, but also YouTube, Gab, Parler and Telegram, according to an analysis by The New York Times.

The spread of Mr. Trump’s claim illustrates how, ahead of this year’s midterm elections, disinformation has metastasized since experts began raising alarms about the threat. Despite years of efforts by the media, by academics and even by social media companies themselves to address the problem, it is arguably more pervasive and widespread today.

It isn’t just Facebook and Twitter. The number of platforms has proliferated. Some 69 million people have joined those like Parler, Gab, Truth Social, Gettr and Rumble, sites that brag about being “conservative alternatives” to Big Tech. And even though many of those who have flocked to such platforms have been banned from larger sites, “they continue to spread their views, which often appear in screen shots posted on the sites that barred them.”

When the Internet was in its infancy, I was among those who celebrated the diminished–actually, the obliterated–role of the gatekeeper. Previously, editors at traditional news sources–our local newspapers and television news stations–had decided what was newsworthy, what their audiences needed to know, and imposed certain rules that dictated whether even those chosen stories could be reported. The most important of those rules was verification; could the reporter confirm the accuracy of whatever was being alleged?

True, the requirement that news be verified slowed down reporting, and often prevented an arguably important story from being published at all. Much depended upon the doggedness of the reporter. But professional journalists– purveyors of that much derided “lame stream” journalism–were gatekeepers preventing the widespread dissemination of unsubstantiated rumors, conspiracies and outright lies.

Today, anyone with a computer and the time to use it can spread a story, whether that story is verifiable or an outright invention. We no longer have gatekeepers. Even the larger and presumably more responsible platforms are intent upon generating “clicks” and increasing “engagement,” the time users spend on their sites. Accuracy is a minor concern, if it is a concern at all.

The Wild West of today’s information environment is enormously dangerous to civil society and democratic self-government. But now, an even more ominous threat looms: Billionaires are buying social media platforms. Elon Musk, currently the world’s richest man, now owns Twitter, “a social media network imbued with so much political capital it could fracture nations.”

It’s a trend years in the making. From the political largess of former Facebook executives like Sheryl Sandberg and Joel Kaplan to the metapolitics of Peter Thiel, tech titans have long adopted an inside/outside playbook for conducting politics by other means.

But recent developments, including Donald Trump’s investment in Twitter clone Truth Social and Kanye West’s supposed agreement to buy the ailing social network Parler, illustrate how crucial these new technologies have become in politics. More than just communication tools, platforms have become the stage on which politics is played.

The linked article was written by Joan Donovan, research director of Harvard Kennedy School’s Shorenstein Center on Media, Politics and Public Policy, and it details the multiple ways in which these billionaires can deploy the power of social media to the detriment of American democracy. As she concludes:

In many ways, the infamous provocateur journalist Andrew Breitbart was right: politics are downstream of culture. To this I’d add that culture is downstream of infrastructure. The politics we get are the ones that sprout from our technology, so we should cultivate a digital public infrastructure that does not rely on the whims of billionaires. If we do not invest in building an online public commons, our speech will only be as free as our hopefully benevolent dictators say it is.

A world in which Peter Thiel and Elon Musk are informational gatekeepers is a dystopian world I don’t want to inhabit.

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It’s Not Safe To Fool Mother Nature..

Those of us of a “certain age” may recall an old commercial for a margarine brand in which “Mother Nature” was deceived into thinking the margarine was butter; when she realized she’d been tricked, she responded with a thunderbolt while declaring that it “Isn’t nice to fool Mother Nature!”

Evidently, the ad sold a lot of margarine.

It appears, however, that more recent efforts to deny reality have met with a different–and far more lethal–consequence. In a recent commentary, Michael Hicks has reported on a study conducted by three Yale researchers into the effects of politically-motivated disinformation on COVID death rates

Last week three Yale professors published a study of COVID-related deaths in the United States. The data they used matched COVID deaths, voter registration by party and age in two states—Florida and Ohio. One goal of the study was to test whether anti-vaccine or anti-mask campaigns contributed to differences in death rates by political affiliation. Here’s what they found.

Before the pandemic, as one might have expected, death rates between Republicans and Democrats of the same age and condition but different political affiliation were statistically identical. In other words, political affiliation had no effect on death rates.

But then, denial–first, of COVID’s reality and then of the efficacy of vaccination–became a political marker, a way for MAGA Republicans to claim membership in the tribe and to “own the libs.”

Slowly, the Republican death rate began to edge higher than the Democrat death rate, again controlling for age differences. In the weeks before the COVID vaccine was made available, a gap emerged, with Republicans of the same age dying at a 22 percent higher rate than Democrats in these two states. That is large, accounting for hundreds of extra dead Republicans. This might have been due to Republicans having been exposed to more anti-mask messaging, leading them to forego more public health recommendations.

However, once the COVID vaccine was introduced, the death rate difference between Republicans and Democrats of the same age ballooned to 153 percent.

Hicks notes that there are several other underlying risks associated with political affiliation, such as gun ownership or lifestyle choices. But as he points out,

those risks didn’t cause death rate differences until COVID came along. It was partisan differences in the consumption of anti-vaccine messaging that killed many, many more Republicans than Democrats….

Nationwide, at least 250,000 Americans died of COVID because they chose not to be vaccinated. More will continue to succumb to the disease. Every last one of these deaths resulted from the rejection of modernity and reason. These were voluntary and senseless deaths attributable to petulant ignorance. The people second-guessing a study about which they have no technical understanding, exhibit the same flawed reasoning as those who rejected the COVID vaccines.

The GOP’s constant attacks on “elites” and higher education have led to a widespread, very partisan rejection of science, expertise and reality. It isn’t limited to suspicion of vaccines–it’s everything from unwillingness to accept the medical complexities implicated in the abortion debates to denial of the reality of climate change. It’s fear of modernity, of a world without bright lines–a world where individuals have to trust that scientists and medical professionals know what they’re doing and are offering sound advice.

As Hicks puts it,

This acceptance of expertise, trust and accumulated knowledge is necessary to sustain our modern world. Yet, we live in a time when social media allows more-skilled charlatans to deceive us. I think those of us who came of age before the dissolution of national media are especially vulnerable to purposeful distortions. That vulnerability killed a quarter million Americans, and it endangers us all in the years ahead.

It isn’t just a pandemic. Today’s GOP stands for nothing more than the intentional embrace of conspiracies, the willingness–even eagerness– to label and blame “the Other” for any and all uncongenial realities, and the substitution of vengefulness for policy. Insane as it seems, the cited study confirms that MAGA Republicans are willing to die in order to “own the libs.”

“Petulant ignorance” might just as well be the MAGA motto.

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Restraining Power

The growing concerns about social media–especially platforms’ moderation of users’ posts–are just the most recent and visible examples of an older conundrum: how do we define and restrain the misuse of power?

When the U.S. Constitution was drafted, concerns about the infringement of individual rights focused almost entirely on government, because only government entities had the power to prescribe and proscribe individual behaviors and punish those who failed to conform. Accordingly, the Bill of Rights restrained only government (initially, only the federal government, which was seen as a greater threat than the state and local units of government that were included in its prohibitions after passage of the 14th Amendment.)

To state the glaringly obvious, in the 200+ years since passage of the original Bill of Rights, a lot of things have changed.

Governments aren’t the only entities exercising considerable authority over our lives–major corporations, a number of them global in scope, not only influence government but engage in negative behaviors that directly affect millions of people, from polluting the environment to exploiting third-world labor. Scholars have belatedly come to question whether the Bill of Rights shouldn’t be applied more broadly–to restrain all entities large enough or powerful enough to invade individual rights.

I have absolutely no idea how that might work.( It probably wouldn’t.) /That said, we are at a point where we absolutely must contend with the inordinate power exercised by private, non-governmental organizations, and especially by Facebook, Twitter, et al.

Robert Reich addressed that problem in a recent essay for the Guardian.

Twitter and Instagram just removed antisemitic posts from Kanye West and temporarily banned him from their platforms. It just goes to show … um, what?

How good these tech companies are at content moderation? Or how irresponsible they are for “muzzling” controversial views from the extreme right? (Defenders of West, such as the Indiana attorney general, Todd Rokita, are incensed that he’s been banned.) Or how arbitrary these giant megaphones are in making these decisions? (What would Elon Musk do about Kanye West?)

Call it the Kayne West paradox: do the social media giants have a duty to take down noxious content or a duty to post it? And who decides?

As Reich quite accurately notes, these platforms, with their huge size and extraordinary power over what’s communicated, exert enormous sway over the American public. And they are utterly unaccountable to that public.

Two cases pending before the Supreme Court illustrate the underlying dilemma:

One case involves Section 230 of Communications Decency Act of 1996. That section gives social media platforms protection from liability for what’s posted on them. In that case, plaintiffs claim that social media ( YouTube in one case,Twitter in the other) led to the deaths of family members at the hands of terrorists. In another case, the plaintiffs are arguing that the First Amendment forbids these platforms from being more vigilant. That case arises from a Texas law that allows Texans and the state’s attorney general to sue social media giants for “unfairly” banning or censoring them based on political ideology.

It’s an almost impossible quandary – until you realize that these questions arise because of the huge political and social power of these companies, and their lack of accountability.

In reality, they aren’t just for-profit companies. By virtue of their size and power, their decisions have enormous public consequences.

Reich is betting is that the Court will treat them as common carriers, like railroads or telephone lines. Common carriers can’t engage in unreasonable discrimination in who uses them, must charge just and reasonable prices, and must provide reasonable care to the public.

But is there any reason to trust the government to do a better job of content moderation than the giants do on their own? (I hate to imagine what would happen under a Republican FCC.)

So are we inevitably locked into the Kanye West paradox?

Or is there a third and better alternative to the bleak choice between leaving content moderation up to the giant unaccountable firms or to a polarized government?

The answer is yes. It’s to address the underlying problem directly: the monopoly power possessed by the giant social media companies.

The way to do this is apply the antitrust laws – and break them up.

My guess is that this is where we’ll end up, eventually. There’s no other reasonable choice. As Winston Churchill is reputed to have said: “Americans can always be trusted to do the right thing, once all other possibilities have been exhausted.”

It’s hard to disagree. And actually, a far more aggressive approach to anti-trust would solve more problems than those we are experiencing with social media…

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The Judicial Crisis

Those of us who are, or have been, lawyers have watched the litigation over Trump’s purloined documents with amazement bordering on mystification. Suddenly, the potential consequences of Trump’s appointment of rogue judges are too dire to ignore.

The crises within the federal judiciary aren’t all new. During my years in the academy, I was a subscriber and occasional participant of the Law and Courts listserv–a forum for professors of law and political science. Well before McConnell’s shocking departure from constitutional and democratic norms, or Trump’s nomination of only Federalist Society favorites, scholars had focused on the need to expand the Supreme Court–a need prompted by increased workloads leading to fewer decisions.

Participants also raised concerns about the increasing politicization of the courts. As an article in Politico recently put it, the widely ridiculed–and clearly political– Cannon ruling

underscores the deep fragility of judicial independence and the extraordinary strains it’s of late experienced. The episode is further a timely reminder that there’s no guarantee that an independent judiciary will survive. Just like other public institutions, American courts can unravel and lose public trust, with no easy way to get it back.

The lifetime appointments of federal judges were intended to shield jurists from political pressure, leaving them free to issue decisions based upon their reading of the law, rather than partisan passions. The Founders seemed not to worry about the possibility of politicized appointments.

As Politico noted,

the drafters of the Constitution assumed that there was little risk of politicized appointments for two reasons. First, they expected the supply of qualified judges to be very limited. Second, they viewed the Senate as a disinterested body, “standing above politics.” Of course, both assumptions quickly foundered with the rise of law schools and national political parties. And the federal judiciary attracted partisan labels as early as 1800. Judicial independence, in short, was compromised early and deeply by the failure of the framers’ guiding assumptions.

Commenters to that Law and Courts listserv also noted the effects of longer lifespans on the federal judiciary, and advocated term limits that would be long enough to shield judges from the immediacy of political repercussions (the preferred term was 18 years) to mitigate concerns over terms stretching into judicial dotage.

Now, concerns about the state of the judiciary extend well beyond academic discussions.

It is in this context of pervasive skepticism about the quality of American courts that Cannon issued her order. In its details, it confirms and exacerbates skepticism about the idea of an apolitical bench. Even conservative commentators have flagged its sharp swerve from the normal treatment criminal suspects receive based on “irrelevant” considerations about Trump’s “reputation.” Concerns were stoked when Trump’s lawyers “went shopping” for a judge he’d appointed — rather than appear before the magistrate who’d issued the original warrant — and who’s received death threats for his pains from the former president’s supporters. And they flared further when Cannon telegraphed her intention to rule for the president who appointed her even before the Justice Department had filed any papers.

Cannon’s order, then, is troubling not just in isolation as a “deeply flawed” decision on its specific merits. It also should worry because it seems to affirm, and hence accentuate, a larger narrative of fracturing judicial independence.

Jamelle Bouie addressed the issue of a politicized judiciary in a recent New York Times essay. His recommendation echoed that of the scholars on the listserv: expand and reorganize the federal court system.

The practical reason to increase the number of courts and judges is that the country is much larger than it was in 1990, when Congress made its last expansion, adding 11 seats to the circuit court system and 61 seats to the district court system. This was modest compared with a change in 1978, when President Jimmy Carter signed the largest judiciary expansion in history, creating 150 new judgeships and expanding the entire federal bench by more than a third.

In the 32 years since 1990, the United States has grown from a population of roughly 250 million to a population of over 330 million. More people means more legal disputes, more legal disputes means more cases, more cases means more work. And the federal judiciary is swamped. Last year, the Judicial Conference of the United States, a nonpartisan policymaking body for the federal courts, recommended that Congress create 79 new judgeships across existing district and appeals courts.

Congress, and here I mean Democrats, should go further with a court expansion to rival Carter’s. They should create new circuits, new courts and new judgeships. The goal is simple: to account for growth and to deal with the problem of a cohort of hyperpartisan and ideological judges whose loyalty to Trump may outweigh their commitment to the law.

I agree. But it won’t happen if Americans don’t vote Blue No Matter Who this November.

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