Tag Archives: legislation

Choices

I recently came across a Facebook post that perfectly summed up America’s continuing failure to make sane public policy consistent with the country’s founding premises. It pointed to the absurdity of far-right definitions of “freedom”:

You can regulate a human body, but not a coal plant. You can regulate the speech of a teacher, but not the money-as-speech of a corporation. You can coerce a child to pray in school, but not keep guns out of the classroom.

“You” are American lawmakers.

The post attributed these truly insane results to the Supreme Court, and the Court certainly deserves a considerable part of the blame, but so do the lawmakers who play to–or are part of–  the Rightwing fringe.

The Indiana legislature is a good example. In the wake of the Dobbs decision, our legislative overlords took hardly any time to ban abortion, but has struggled–and frequently failed– to regulate environmental hazards. The state has the most miles of rivers and streams too polluted to swim in, and we also lead the country in toxic emissions, among other deficiencies. The legislature’s focus on culture war issues routinely takes precedence over concerns for  public health, and lawmakers’ concern for the rights of farmers and utilities just as routinely outweighs concerns about the environment.

Our Hoosier lawmakers have a long history of telling teachers what to do–from older efforts aimed at prescribing how they should teach reading to periodic instructions about “character” education, to the more recent efforts to keep them from teaching about the less laudatory parts of our history or recognizing the existence of LGBTQ citizens. These persistent efforts have not been matched by efforts to restrain the influence of corporate dollars.

And don’t even start me on the Indiana General Assembly and guns. The pious hypocrites who continually try to shoehorn God into public school classrooms–and  failing that (due to that pesky First Amendment Establishment Clause) support the vouchers that siphon money from Indiana’s public schools and send them to private religious schools–continue to make firearms more easily available, most recently by ignoring law enforcement testimony and public opinion and eliminating the need to obtain a permit.

The hypocrisy is overwhelming.

The same “freedom fighters” who were outraged by mask mandates during the pandemic see no inconsistency with mandates to carry a pregnancy to term. They claim the “God-given right” to be free of a minor inconvenience that would protect their friends and neighbors, but are perfectly willing to interfere with medical science and the bodily autonomy of women.

Lawmakers who are solicitous about protecting factory farms from “onerous” regulation show considerably less concern about protecting the environment and the health of their constituents, despite evidence that those farms are massive polluters.To focus on just one element of that pollution, researchers tell us that industrial livestock farms produce up to 1.37 billion tons of manure annually—and that that’s 20 times more fecal waste than the entire U.S. human population, posing serious pollution risks to water and air.

The Indiana lawmakers who insist upon protecting the untrammeled, unimpeded right to own guns–including weapons more appropriate for war than personal protection–are blithely unconcerned with the havoc and death those weapons cause.

IN AN AVERAGE YEAR, 931 PEOPLE DIE BY GUNS IN INDIANA. WITH A RATE OF 14 DEATHS PER 100,000 PEOPLE, INDIANA HAS THE 19TH-HIGHEST RATE OF GUN DEATHS IN THE US.

In Indiana, 61% of gun deaths are suicides and 36% are homicides. This is compared to 61% and 36% respectively, nationwide.

The rate of gun deaths in Indiana increased 30%↑ from 2009 to 2018, compared to an 18%↑ increase over this same time period nationwide. In Indiana, the rate of gun suicide increased 24%↑ and gun homicide increased 49%↑ from 2009 to 2018, compared to a 19%↑ increase and an 18%↑ increase nationwide, respectively.

Across the nation, deadly attacks on schoolchildren are accelerating. The same legislators who are willing to tell education professionals how to teach and what to say remain unwilling to require even minimal background checks as a condition of buying the lethal weapons increasingly used to mow down the children in those classrooms.

There are, obviously, many other examples of misplaced legislative zeal.

The basic question citizens need to confront is: what is government for? What sorts of rules should government have the authority to impose, and what matters are properly left to each individual?

Our system was founded on the principle that Individuals should be free to pursue their own ends–their own life goals–so long as they did not thereby harm the person or property of someone else, and so long as they were willing to accord an equal liberty to their fellow citizens.

Hoosier lawmakers continue to get it backwards.

 

About That War On Education

Evidently, Indiana’s censorious legislature has company–ours aren’t the only lawmakers issuing “gag orders” to educators.

According to a January report from Pen America,

It has been an extraordinary month for educational gag orders. Over the last three weeks, 71 bills have been introduced or prefiled in state legislatures across the country, a rate of roughly three bills per day. For over a year now, PEN America has been tracking these and similar bills…

According to the Pen report, 122 educational gag orders have been filed in 33 states since January 2021. Of those, 12 have become law in 10 states, and another 88 are currently live.

Of those currently live:

84 target K-12 schools
38 target higher education
48 include a mandatory punishment for those found in violation

When Pen looked at the measures that have been introduced so far in 2022, it found “a significant escalation in both scale and severity.”

Forty-six percent of this year’s bills explicitly target speech in higher education (versus 26 percent in 2021) and 55 percent include some kind of mandatory punishment for violators (versus 37 percent in 2021). Fifteen also include a private right of action. This provision, which we analyzed in an earlier post, gives students, parents, or even ordinary citizens the right to sue schools and recover damages in court.

One final feature that is increasingly common to 2022’s bills is how sloppily many are written. Legislators, in their haste to get these bills out the door and into the headlines, are making basic factual errors, introducing contradictory language, and leaving important terms undefined. Given the stakes, the result will be more than mere confusion. It will be fear.

The Pen report then zeroed in on legislation from a single state, in order to help readers “appreciate” the chilling nature of the threat.

That state? Indiana. (I am so not proud.)

With eight bills currently under consideration, only Missouri (at 19) has made a greater contribution. Of the eight in Indiana, all target public K-12 schools, two target private K-12 as well, six would regulate speech in public colleges and universities, four affect various state agencies, and two threaten public libraries. All are sweeping, all are draconian, and few make any kind of sense.

House Bill 1362, sponsored by Bob Behning ( because of course it was), prohibits teachers and professors from including in their instruction any “anti-American ideologies.” What this means is never defined (because of course it wasn’t), but violators may be sued in court.

Pen tells us that House Bill 1040 is even more confusing. That bill requires teachers to adopt a “posture of impartiality” –but also contains the following language:

Socialism, Marxism, communism, totalitarianism, or similar political systems are incompatible with and in conflict with the principles of freedom upon which the United States was founded. In addition, students must be instructed that if any of these political systems were to replace the current form of government, the government of the United States would be overthrown and existing freedoms under the Constitution of the United States would no longer exist. As such, socialism, Marxism, communism, totalitarianism, or similar political systems are detrimental to the people of the United States.

As the report notes, this would be farcical if the consequences of failure to comply weren’t so dire. A teacher or school  that failed to navigate the whiplash mandated by this effort to ensure that teachers indoctrinate, rather than educate, would–under this bill– face civil suits, loss of state funding and accreditation, and/or professional discipline up to and including termination.

The linked article describes several other, similar efforts, and I encourage anyone who wants to wallow in despair over Indiana governance to click through.

The none-too-savvy legislators pushing these bills are evidently unaware that kids today can easily access multiple sources of information. (There’s this newfangled thing called the Internet.)

Ironically, these legislative efforts that display our lawmakers’ anti-intellectualism and bigotry also motivate young people to access the information they are trying to suppress. After a Tennessee school board censored a graphic novel about the Holocaust, it soared to the top of Amazon’s best-seller list. Young people (and a number of older ones) have rushed to form banned book clubs.

A few days ago, when I threatened to start an online class in “banned history,” the response was so heavy and positive I’m now seriously considering doing so. (Once I’ve done some research and figured out the logistics, I’ll let you all know.)

What we should be teaching students is how to evaluate the credibility of the sources they consult. Efforts to “shield” them from the uglier realities of the past are  likely to spark interest in exploring that past, and it would be helpful to give them the tools to separate sound scholarship from the propaganda produced by both Left and Right.

Several lawmakers could use those lessons too.

 

 

Who’s Talking?

I finally got around to reading an article about Facebook by a Professor Scott Galloway, sent to me by a reader. In it, Galloway was considering the various “fixes” that have been suggested in the wake of continuing revelations about the degree to which Facebook and other social media platforms have facilitated America’s divisions.

There have been a number of similar articles, but what Galloway did better than most was explain the origin of Section 230 of the Communications Act in language we non-techie people can understand.

In most industries, the most robust regulator is not a government agency, but a plaintiff’s attorney. If your factory dumps toxic chemicals in the river, you get sued. If the tires you make explode at highway speed, you get sued. Yes, it’s inefficient, but ultimately the threat of lawsuits reduces regulation; it’s a cop that covers a broad beat. Liability encourages businesses to make risk/reward calculations in ways that one-size-fits-all regulations don’t. It creates an algebra of deterrence.

Social media, however, is largely immunized from such suits. A 1996 law, known as “Section 230,” erects a fence around content that is online and provided by someone else. It means I’m not liable for the content of comments on the No Mercy website, Yelp isn’t liable for the content of its user reviews, and Facebook, well, Facebook can pretty much do whatever it wants.

There are increasing calls to repeal or reform 230. It’s instructive to understand this law, and why it remains valuable. When Congress passed it — again, in 1996 — it reasoned online companies were like bookstores or old-fashioned bulletin boards. They were mere distribution channels for other people’s content and shouldn’t be liable for it.

Seems reasonable. So–why the calls for its repeal? Galloway points to the multiple ways in which the information and communication environments have changed since 1996.

In 1996, 16% of Americans had access to the Internet, via a computer tethered to a phone cord. There was no Wi-Fi. No Google, Facebook, Twitter, Reddit, or YouTube — not even Friendster or MySpace had been birthed. Amazon sold only books. Section 230 was a fence protecting a garden plot of green shoots and untilled soil.

Today, as he points out, some 3 billion individuals use Facebook, and fifty-seven percent of the world population uses some sort of social media. Those are truly astonishing numbers.

I have previously posted about externalities–the ability of manufacturers and other providers to compete more successfully in the market by “offloading” certain of their costs to society at large. When it comes to social media, Galloway tells us that its externalities have grown as fast as the platforms’ revenues–and thanks to Section 230, society has borne the costs.

In sum, behind the law’s liability shield, tech platforms have morphed from Model UN members to Syria and North Korea. Only these Hermit Kingdoms have more warheads and submarines than all other nations combined.

As he points out, today’s social media has the resources to play by the same rules as other powerful media. Bottom line: We need a new fence. We need to redraw Section 230 so that it that protects society from the harms of social media companies without destroying  their  usefulness or economic vitality.

What we have learned since 1996 is that Facebook and other social media companies are not neutral platforms.  They aren’t bulletin boards. They are rigorously managed– personalized for each user, and actively boosting or suppressing certain content. Galloway calls that “algorithmic amplification” and it didn’t exist in 1996.

There are evidently several bills pending in Congress that purport to address the problem–aiming at the ways in which social media platforms weaponize these algorithms. Such approaches should avoid raising credible concerns about chilling free expression.

Reading the essay gave me some hope that we can deal–eventually–with the social damage being inflicted by social media. It didn’t, however, suggest a way to counter the propaganda spewed daily by Fox News or Sinclair or their clones…

Ezra Klein Is Right

Ezra Klein is becoming one of my favorite pundits, thanks to columns in the New York Times like this one from late April, in which (in an aside) he pointed out that America “does have a multiparty political system, it’s just tucked inside the Senate Democratic caucus.”

The column–written before reports of the hardening of Senator Manchin’s stubborn refusal to consider any measure, no matter how good for the country, unless it is sufficiently “bipartisan”–considered the prospects of such bipartisanship in today’s degraded political environment.

As he notes,

The yearning for bipartisanship shapes the Senate in profound ways. For instance, it helps the filibuster survive. The filibuster is believed — wrongly, in my view — to promote bipartisanship, and so it maintains a symbolic appeal for those who wish for a more bipartisan Senate. “There is no circumstance in which I will vote to eliminate or weaken the filibuster,” Senator Joe Manchin wrote in The Washington Post. “The time has come to end these political games, and to usher a new era of bipartisanship.”

In the absence of the filibuster, the Senate might pass more legislation, but it would do so in a more partisan way, and some, like Manchin, would see that as a failure no matter the content of the bills. “We’d all prefer bipartisanship, but for some of my colleagues, it’s a very high value,” Chuck Schumer, the Senate majority leader, told me.

Klein offers a contrary view: he argues that bipartisan governance isn’t innately better than partisan governance. In fact, he asserts, it’s often worse.

Although it is true that neither party has all the answers, bipartisan support does not usually generate legislation that features–or even includes– the best ideas of Republicans and the best ideas of Democrats.  Klein points out the obvious barriers to such a happy result.

A bipartisan bill is simply a bill that members of both parties support. That means they can support it ideologically and they can support it politically. It’s that latter condition that’s toughest to fulfill: The minority party doesn’t want to give the majority big, bipartisan accomplishments, because the minority party wants the majority to lose the next election….

The set of ideas that both parties can agree on is far smaller and blander than the range of ideas that one party or the other likes. To insist on bipartisanship as a condition of passage is to believe that it’s better for Amercan politics to choose its solutions from the kids’ menu.

Klein reminds readers that virtually all Republican elected officials have signed a pledge to oppose any and all tax increases. A bipartisan approach would thus take taxes off the table.  But even when tax policies aren’t under consideration, bills with bipartisan support are generally bills that have seen their “edges” sanded off.

Compromise bills can be wise legislation, but they often result in policy too modest and mushy to solve problems. We would never want industries to release only products that all the major competitors can agree on…

Klein concedes that things haven’t always been this polarized, and bipartisanship hasn’t always produced toothless legislation. But the current search for bipartisanship–at least, as conceived by Manchin and Sinema–is really summarized by a couple of memes circulating on Facebook. One has Lincoln saying he’d like to emancipate the slaves, but only after getting buy-in from the slaveholders; the other shows an 18th-Century man considering American independence, but only if the English agree.

Mitch McConnell has made it abundantly clear that the only “bipartisanship” Republicans will recognize is surrender by the Democrats to their demands.

Manchin and his ilk misunderstand a basic premise of American politics. As Klein explains,

This is what Manchin gets wrong: A world of partisan governance is a world in which Republicans and Democrats both get to pass their best ideas into law, and the public judges them on the results. That is far better than what we have now, where neither party can routinely pass its best ideas into law, and the public is left frustrated that so much political tumult changes so little.

It will surprise no one to hear that I think Democrats should get rid of the filibuster. But it’s not because I believe Democrats necessarily have the right answers for what ails America. It’s because I believe the right answers are likelier to be found if one party, and then the other, can try its hand at solving America’s problems. Partisan governance gives both parties true input over how America is governed; they just have to win elections. Bipartisan governance, at least with parties this polarized, does the opposite: It deprives both sides of the ability to govern and elections of their consequences.

Exactly.

 

The “Do Nothing” Senate

The 80th United States Congress met during the third and fourth years of Harry Truman’s presidency, from 1947-49. Republicans had a majority in both chambers. Truman famously nicknamed it the “Do Nothing Congress” and, during the 1948 election, campaigned as much against that “do nothing” body as he did against Dewey–and the strategy worked. Truman won, and the GOP lost nine seats in the Senate and 73 seats in the House.

Ironically, next to the sorry lot “serving” in today’s Senate, the 80th actually looks pretty good. It passed a  total of 906 bills, including the Marshall Plan and the Taft–Hartley Act. It had, however, opposed most of Truman’s Fair Deal bills, and he was able to turn that opposition into electoral victory.

Fast forward to 2021. As a newsletter from the New York Times noted,

When Republicans controlled the White House and Congress in 2017 and 2018, the only major legislation they passed was a tax cut, and the only other big bill that came close was a repeal of Obamacare, without a replacement.

When Donald Trump ran for re-election, the party did not write a campaign platform.
During Barack Obama’s presidency, and now Biden’s, Republicans have almost uniformly opposed significant legislation, be it on health care, climate change, Wall Street regulation or economic stimulus.

As President Biden has pointed out, his proposed legislation has broad bipartisan support–among voters. It’s only among members of our genuinely “do nothing” Congress that it has encountered intransigent opposition.

Admittedly, the GOP is far from a “do nothing” party at the state and local level–and what the party is doing there makes it more accurately the “do nothing good” party. State-level GOP lawmakers have engaged in multiple, unprecedented attacks on the right to vote, filing more than 360 bills to restrict voting–everything from proposals to make mail-in voting harder, to  turning minor voting errors into criminal offenses. According to one report, Michigan is even trying to stop the state’s top election official from providing a link to an absentee ballot application on a state government website.

If the United States was experiencing a period of widespread prosperity and tranquillity, a pause in legislative activity might be justifiable. There is no virtue in passing laws simply to look busy. But that is hardly the case. Substantial majorities of Americans–in both parties–identify pressing issues. Their priorities may differ, and they are proposing very different “fixes” for the issues they agree upon, but virtually all Americans believe that Congress needs to negotiate in good faith, compromise where possible, and act.

The reason for GOP intransigence is simple: for several years, Republicans in Congress have elevated party over nation. A Politico article from 2016 included a quote by former GOP Senator Voinovich that has been widely reported.It pretty much tells the tale.

Starting in 2009, the Republicans in Congress adopted a simple, coherent strategy of resisting anything Obama proposed. “If he was for it,” said former Ohio Senator George Voinovich, “we had to be against it.” No Republican senators and no House Republicans voted for the Affordable Care Act. After 2012, with healthy majorities, Republicans voted to repeal the law dozens of times, with no hope that such moves would have any effect other than to register opposition. The near debt default in 2011 to the Ted Cruz-led shutdown in 2013 to the current refusal to hold hearings for the Supreme Court seat vacated by Antonin Scalia’s death have continued that trend.

Today’s GOP is so radicalized, and its voters so misinformed (polls find that some two-thirds of self-identified Republicans think Trump won the election, despite a total lack of any credible evidence) that a Biden campaign modeled after Truman’s probably wouldn’t resonate. But it might be worth a try.

History–assuming America gets to have a history–will not be kind to the venal and self-interested poseurs occupying the halls of Congress. As Jennifer Rubin recently wrote in the Washington Post,

The Republican Party is descending into know-nothingism and nativism because of the silence of Republicans who know better. House Minority Leader Kevin McCarthy (R-Calif.) knows that November’s election was not fraudulent and that the disgraced former president incited the Jan. 6 insurrection. McCarthy is simply too cowardly to say so. Sen. Ted Cruz (R-Tex.) knows this, too; he just is too craven and ambitious to admit it. Instead of working on the country’s problems, he spends his time lashing out at Major League Baseball for opposing voter restrictions.

These pathetic excuses for public servants make the members of Truman’s “do nothing” Congress look like towering statesmen by comparison.