A Perfect Representative

Okay–I can’t resist. Let’s talk about Matt Gaetz–not because of his evident sexual misdeeds, but because even without considering those, he is an almost perfect example of  the caliber of individual representing today’s GOP.

Gail Collins captured his essence in a recent New York Times column.

As it stands, Gaetz is a spectacularly unproductive Florida Republican who never managed, during his first two terms in the House, to get a single bill that he sponsored signed into law. (We are still crossing our fingers for that post-office-naming he co-sponsored.) Meanwhile, by Forbes’s count, he has appeared on Fox News at least 179 times since taking office.

Collins had a lot of snarky fun comparing Gaetz’ current situation to past scandals (Tidal Basin, anyone?), but most of those involved people who had actually accomplished something–people of at least some substance who betrayed their promise or otherwise fell from grace.

Gaetz–whom Collins accurately calls a “fanboy”–spent the Trump years with his attention  focused on building his “personal brand,” rather than on learning the intricacies of legislating, or  forging relationships in Congress. He was much more interested in getting on television and getting close to the new president.( He was especially interested in being on what one colleague called “The Trump Train.”) There are multiple reports that he bragged about his relationship with Trump and about his own sexual “exploits”–including reports that he repeatedly showed Congressional colleagues pictures of naked women with whom he claimed he’d slept.

A CNN article listed some of the reasons Gaetz is considered “unserious” by even his Republican colleagues. (“Unserious” is a nicer word than “asshole.”)

Gaetz courted controversy in numerous ways, earning him notoriety in the House — along with television appearances in conservative media.

In 2018, he was criticized after he invited a conservative troll with a history of Holocaust denial to the State of the Union.

A year later, Gaetz threatened Trump’s former fixer Michael Cohen ahead of his 2019 House testimony, tweeting, “Do your wife & father-in-law know about your girlfriends? Maybe tonight would be a good time for that chat.”

He was admonished by the House Ethics Committee and investigated and cleared by the Florida Bar over the tweet, which he deleted and apologized for.

During the House’s first impeachment inquiry, Gaetz led a band of Republicans in a stunt to “storm” the House Intelligence secure committee spaces where the impeachment interviews were being held. And last year, Gaetz wore a gas mask on the House floor to vote on a coronavirus funding package.

 In other words, Gaetz is a perfect representation of today’s Republican Party. He is obviously uninterested in governing. Instead, he seems intent upon performative “conservatism” aka “culture war.”  

In that–if not the behavior that led to his current legal problems–he is a typical Republican.

An opinion piece by Ezra Klein included a perfect description of today’s iteration of the GOP. Klein was trying to explain Joe Biden’s unanticipated willingness to forsake efforts to persuade Congressional Republicans to engage in genuine bipartisanship. 

In a discussion of Mitch McConnell’s role in GOP intransigence, Klein wrote.

Over the past decade, congressional Republicans slowly but completely disabused Democrats of these [bipartisanship] hopes. The long campaign against the ideological compromise that was the Affordable Care Act is central here, but so too was then-Speaker John Boehner’s inability to sell his members on the budget bargain he’d negotiated with President Barack Obama, followed by his refusal to allow so much as a vote in the House on the 2013 immigration bill. And it’s impossible to overstate the damage that Mitch McConnell’s stonewalling of Merrick Garland, followed by his swift action to replace Justice Ruth Bader Ginsburg, did to the belief among Senate Democrats that McConnell was in any way, in any context, a good-faith actor. They gave up on him completely.

Today’s Congressional GOP is a marriage between terminally unserious “culture warriors” like Gaetz, Nunes, Jim Jordan and their ilk and those who–like Mitch McConnell–are willing to ignore the common good and the needs of the country in their pursuit of self-aggrandizement.

There’s no negotiating with either faction, because they aren’t there to govern.

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The Journalism We Need

Yesterday”s post was about the conundrum posed by social media sites. But social media isn’t journalism–and even when it focuses on news items, it is no substitute for journalism.

The First Amendment protects freedom of the press for obvious reasons. When citizens are uninformed about their government, they are unable to ensure that it is acting appropriately, meeting its responsibilities. They are unable to cast informed votes.

The Internet and social media have dramatically changed the way in which citizens get their information, and we are still struggling to come to terms with the avalanche of news, spin, propaganda and conspiracy theories that populate today’s media. The ability to “choose one’s news”—to indulge our very human confirmation bias—has had an enormous (and I would argue negative) effect upon American governance.

An article from Resilience–an aggregator website–is instructive.The author was bemoaning, as so many of us do, the disappearance of the “journalism of verification.”

Our modern culture tells us that we have more information today than anyone in history, because of the internet – but that assumes that data that could theoretically appear on a screen has the same value as words read from paper. In truth, few web sites will cover the library board meeting or the public works department, and if they do they are likely to be a blog by a single unpaid individual. Yet these ordinary entities shape our children’s minds and our present health, and as such are infinitely more important than any celebrity gossip — possibly more important than presidential campaigns.

Even if a blogger were to cover the library board or water board, no editors would exist to review the material for quality or readability, and the writer would be under no social, financial or legal pressure to be accurate or professional, or to publish consistently, or to pass on their duties to another once they resign.

One of the most daunting challenges of contemporary governance–really, of contemporary life–is the pervasiveness of distrust. Americans no longer know who or what to believe, are no longer able to separate fact from opinion, and no longer feel confident that they can know the agendas and evaluate the performance of their social and political institutions.

We live in an era when spin has become propaganda, and reputable sources of information  compete with “click bait” designed to appeal to pre-existing prejudices. Partisans of all sorts play on well-known human frailties like confirmation bias. The result is that Americans increasingly occupy different realities, making communication–let alone rational problem-solving, negotiation and compromise–virtually impossible.

The problem is most acute at the local level.

What we lose when we lose newspapers that practiced the journalism of verification is our ability to engage in responsible self-government. Civic engagement and especially local governance suffer when local media fails to adequately cover government, and there is emerging research that bears that out. Studies of cities that have lost their newspapers confirm that the loss is followed by diminished civic and political activity. It also leads to higher costs of borrowing, because those who purchase the bonds issued by a city with no news coverage factor in the greater risk of malfeasance or incompetence when there is no “watchdog” around.

Those studies of places that have entirely lost their newspapers are now being supplemented by research into the consequences of the sort of situation we have here in Indianapolis. It’s a situation that is increasingly common–cities where a newspaper continues to publish, but no longer has sufficient staff to cover the affairs of government. A study from earlier this year, titled “Political Consequences of the Endangered Local Watchdog: Newspaper Decline and Mayoral Elections in the United States,” has sobering conclusions.

Emerging data shows that cities served by newspapers with relatively sharp declines in newsroom staffing have significantly reduced political competition in mayoral races, as well as lower voter turnout. Newspaper closures have been linked to increased partisanship–presumably because the remaining sources of local information tend to be from partisan sources and Facebook/Twitter “bubbles,” while national media focuses on America’s political polarization.

Newsrooms around the country have dramatically reduced their editorial staffs, and typically, higher-paid reporters with the most institutional memory have been the first to go.

When I taught my class in Media and Public Affairs five or six years ago, I used a textbook titled “Will the Last Reporter Please Turn Out the Lights?” Those lights are pretty dim right now–and as the Washington Post banner puts it– democracy dies in darkness.

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Regulating Facebook et al

Over the past few years, as my concerns about the media environment we inhabit have grown, I have found Tom Wheeler’s columns and interviews invaluable. Wheeler–for those of you unfamiliar with him– chaired the Federal Communications Commission from 2013 to 2017, and is currently both a senior fellow at Harvard’s Kennedy School Shorenstein Center and a visiting fellow at the Brookings Institution.

He’s also a clear writer and thinker.

In a recent article for Time Magazine, Wheeler proposes the establishment of a new federal agency that would be empowered to regulate Internet giants like Facebook. He began the article by noting Mark Zuckerberg’s apparent willingness to be regulated–a willingness expressed in advertisements and testimony to Congress. As he notes, however,

A tried-and-true lobbying strategy is to loudly proclaim support for lofty principles while quietly working to hollow out the implementation of such principles. The key is to move beyond embracing generic concepts to deal with regulatory specifics. The headline on Politico’s report of the March 25 House of Representatives hearing, “D.C.’s Silicon Valley crackdown enters the haggling phase,” suggests that such an effort has begun. Being an optimist, I want to take Facebook at its word that it supports updated internet regulations. Being a pragmatist and former regulator, though, I believe we need to know exactly what such regulations would provide.

Wheeler proceeds to explain why he favors the creation of a separate agency that would be charged with regulating “big Tech.” As he notes, most proposals in Congress would give that job to the Federal Trade Commission (FTC). Wheeler has nothing negative to say about the FTC but points out that the agency is already “overburdened with an immense jurisdiction.” (Companies have even been known to seek transfer of their oversight to the agency, believing that such a transfer would allow its issues to get lost among the extensive and pressing other matters for which the agency is responsible.) Furthermore,  oversight of digital platforms “should not be a bolt-on to an existing agency but requires full-time specialized focus.”

So how should a new agency approach its mission?

Digital companies complain (not without some merit) that current regulation with its rigid rules is incompatible with rapid technology developments. To build agile policies capable of evolving with technology, the new agency should take a page from the process used in developing the technology standards that created the digital revolution. In that effort, the companies came together to agree on exactly how things would work. This time, instead of technical standards, there would be behavioral standards.

The subject matter of these new standards should be identified by the agency, which would convene industry and public stakeholders to propose a code, much like electric codes and fire codes. Ultimately, the agency would approve or modify the code and enforce it. While there is no doubt that such a new approach is ambitious, the new challenges of the digital giants require new tools.

Wheeler proceeds to outline how the proposed agency would approach issues such as misinformation and privacy, and to describe how it might promote and protect competition in the digital marketplace.

It’s a truism among policy wonks that government’s efforts to engage with rapidly changing social realities lag the development of those realities. The Internet has changed dramatically from the first days of the World Wide Web; the social media sites that are so ubiquitous now didn’t exist before 1997, and blogs like the one you are reading first emerged in 1999–a blink of the eye in historical terms. In the next twenty years, there will undoubtedly be digital innovations we can’t yet imagine or foresee. A specialized agency to oversee our digital new world makes a lot of sense.

I’m usually leery of creating new agencies of government, given the fact that once they appear on the scene, they tend to outlive their usefulness. But Wheeler makes a persuasive case.

And the need for thoughtful, informed regulation gets more apparent every day.

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Incentivizing Appropriate Police Behavior

Many years ago, I spent three years heading up Indianapolis’ legal department. It was–among other things–my introduction to the way municipalities defended against (and far more often, settled) claims of police misconduct and/or brutality. I’d venture to say that very few taxpayers have any idea how costly those claims can be.

A recent post to Lawfare considered not only the dollars, but the sense.

On March 12, the City of Minneapolis agreed to pay George Floyd’s family $27 million for his wrongful death via the knee of a police officer. Despite being the largest pretrial civil rights settlement, it is only a fraction of the taxpayer money spent on settling police brutality. From 2015 to 2019, more than $2 billion, mostly taxpayer money, was used on civilian payouts for police misconduct in only the 20 largest police departments.

As the article points out, the way in which we currently address payouts for police misconduct operates to absolve officers from any financial culpability, no matter how egregious the behavior that triggered the settlement. This is mostly due to qualified immunity, which I have discussed previously. Qualified immunity is a court-invented doctrine that was originally intended to protect officers when they were acting in good faith, but actually ends up allowing police officers to escape civil liability for virtually any behavior, good faith or not.

While qualified immunity often shields government officials broadly from personal liability, it is particularly used with law enforcement. And though it is applicable only to civil proceedings, prosecutors, defense attorneys, judges and even jurors are often swayed during grand juries and criminal proceedings by the protection of qualified immunity.

Depending on the state, officers accused of misconduct might even keep their police pension and even be able to sue the municipality for back pay if they are fired and then found criminally not guilty. The money for civilian payouts for police misconduct does not come from police department budgets. Rather, civilian payouts overwhelmingly come from general funds, though some come from bonds and even insurance policies, particularly in smaller areas.

Between expansive doctrines like qualified immunity and a widespread social willingness to accord police officers–who have an admittedly difficult and dangerous job–the benefit of any doubt, holding an officer personally responsible for misconduct is an exceedingly rare event.

The Lawfare article suggests structural changes that would begin to redress the current imbalance. A number of legal scholars recommend abolishing qualified immunity, and there are other changes that would provide incentives for better monitoring of officer behaviors (and arguably, better training protocols) by police departments. They include moving payouts from city budgets to police department insurance policies and having individual officers carry liability insurance.

The costs of the current system are considerable, and it would be a mistake to shrug off the Chauvin settlement as an anomaly.

Besides the settlement for Floyd’s death, a series of notable civil settlements for police misconduct include $38 million in Baltimore County, Maryland, for the wrongful death of Korryn Gaines and the accidental shooting of her four-year-old son, Kodi; $20 million in Prince George’s County, Maryland, for the wrongful death of William Green; $12 million for the wrongful death of Breonna Taylor of Louisville, Kentucky; and $6 million in Cleveland, Ohio, for the wrongful death of 12-year old Tamir Rice, who was killed while playing with a toy gun in a park. All the people mentioned above are Black. These cases are not cherry-picked but, rather, are part of a much larger systemic problem in policing and municipal government. Black people are roughly 2.5 times as likely as whites to be killed by police. Blacks are 3.5 times more likely to be killed by police when they are not attacking or do not have a weapon relative to whites, like Floyd, Green and Rice. Black women are disproportionately more likely to be killed in their homes by police, like Taylor and Gaines.

There are also many incidents that do not end in death but will probably result in civilian payouts for police misconduct. Some of the most recent incidents include a five-year-old who was arrested and yelled at by police after leaving school in Montgomery County, Maryland, as well as Marion Humphrey Jr., a 32-year-old law student who was detained for more than two hours as state troopers in Arkansas searched his U-Haul. Humphrey, the son of a retired judge, has already sued the Arkansas State Police.

Reforming the way these settlements are funded would not only incentivize improved training, oversight and behavior, it would save taxpayer dollars that could be put to far more productive use.

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Structural Racism

Over the past several years, America has debated and (to some extent) confronted the extent of our country’s racism.The willingness of White Supremicists to make their animus explicit was triggered by the election of Barack Obama and evidence of shifting demographics, but we are still far from having a candid discussion of the ways in which that racism has infected the systems and structures of our society.

Far too many people think of racism as individual behaviors–the sorts of interpersonal  nastiness that goes viral after being captured by our ubiquitous iPhone cameras. Those of us who are white and middle-class rarely recognize the ways in which people of color have been systematically disadvantaged by official acts; I was shocked to learn about the federal government’s role in redlining from The Color of Law and similar books.

The Brookings Institution recently compared the treatment of South American immigrants with earlier treatment of immigrants from European countries. It was illuminating, to say the least.

Examining immigration policy through a systemic racism lens reveals that today’s largely Latino undocumented immigrants face far harsher consequences than white Europeans of years past for the same exact offense of unauthorized entry. A system that treats immigrants differently solely to their race is essentially the textbook definition of structural racism.

“Illegal” immigration was remarkably common in past decades. Around the turn of the century many Europeans came to the US “with a tag on,” a label sewn into their clothing to allow an employer or labor contractor who’d paid for the immigrant’s passage to find the newcomer at the dock on Ellis Island. While illegal—indentured servitude having long been outlawed[ii]–the practice was so widespread that one labor union official testified in 1912 that “more than 8 in 10” of the million immigrants who’d entered that year had a job waiting from an employer that paid for the newcomer’s passage.[iii] Others came as illegal stowaways aboard ships or unlawfully crossed the border from Canada, as CBS Evening News Anchor Nora O’Donnell recently discovered her Irish grandfather had done in 1924.[iv

According to the Brookings report, these “illegal” European immigrants faced few if any repercussions. In part, that was because there was little or no immigration enforcement, but even among those who were caught, few faced deportation. Migrants who entered unlawfully before the 1940s were protected by statutes of limitations and– in the 1930s and 1940s– by grants of amnesty. And before 1976, the government was extremely unlikely to deport parents of US citizens–the “anchor baby” accusation is a recent invention.

There weren’t restrictions on the ability of immigrants to access public benefits until the 1970s, and Brookings reports that it wasn’t until 1986 that it became unlawful to hire an undocumented immigrant.

In sum, from the early 1900s through the 1960s, millions of predominantly white immigrants entered the country unlawfully, but faced virtually no threat of apprehension or deportation. Businesses lawfully employed these immigrants, who were eligible for public benefits when they fell on hard times.

Times have certainly changed. Undocumented people today, most of whom are Latino and/or other people of color—are treated very differently. They enjoy none of the privileges  that were accorded to previous generations of white immigrants as a matter of course.

The toughening of immigration laws coincided with a shift of immigration from Europe to newcomers from Latin America, Asia, and Africa,[x] often in the context of racialized debates targeted mainly at Latinos. Researchers have documented how through the 1960s, racialized views of Mexicans shaped law and bureaucratic practice.

The report goes on to describe the increasingly draconian policies that followed the change in immigrants’ skin color. I encourage you to click through and read the entire, depressing  exposition.

Watching Derek Chauvin murder George Floyd was a horrific example of official disregard for the life of someone perceived to be different and thus lesser.  As a society, we need to send a message that such behaviors by individuals cannot be tolerated. But the larger challenge we face is the pressing need to ferret out the multiple ways in which similar attitudes have infected the structures of our laws and policies, and the multiple, less-visible ways those structures continue to harm not just the people being marginalized but also the country as a whole.

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