Tag Archives: legislation

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.

 

The Anti-Fact Party

Here in Indiana, we joke about the time the Indiana House of Representatives passed a measure purportedly changing the value of  pi. That was in 1897, and Republicans controlled the chamber.

Things haven’t changed all that much. This year, similar GOP idiocy has apparently manifested itself in Ohio. 

High school test question: How old is the Utica shale formation that Ohio is drilling for oil and natural gas?

Answer: 6,000 years, just like the Bible says.

According to critics, HB 164, the Ohio Student Religious Liberties Act of 2019—which every single Republican in the Ohio House of Representatives and two of its Democrats voted for—would bar teachers from dinging that answer, which is 444 million years off the mark, if the student claims “sincerely held religious beliefs” for making it. And this would apply to all science tests. For example, under this belief, astronomers couldn’t possibly be right about the Andromeda Galaxy being 2.5 million light-years distant from the Milky Way.

One of the critics is Gary Daniels, the chief lobbyist for the ACLU of Ohio. He told the Cleveland Plain Dealer that the bill would protect students’ religious rights, a good thing. But it also would keep teachers from taking off points for answers that conflict with science, stating that they “shall not penalize or reward a student based on the religious content of a student’s work,” he said. And that’s far from what education should be about.

The author of the bill disagrees with the ACLU’s analysis, contending that the measure simply protects “religious self-expression”–although he is apparently unable to point to any examples in which Ohio schools have suppressed or otherwise denigrated “religious self-expression.”

Given the facial absurdity of a bill that would protect a student in the above example–and the amount of misinformation circulating on the web– I consulted Snopes, which  merely lists the issue as “unproven.”

The Washington Post quoted Ohio’s legislative services analysis, and followed up with the ACLU’s interpretation of the bill’s language.

Per the legislative services, the bill would

Allow students to engage in religious expression in the completion of homework, artwork or other assignments;

Prohibit public schools from rewarding or penalizing a student based on the religious content of a student’s homework, artwork or other assignments. (emphasis mine)

Per the ACLU

Gary Daniels, chief lobbyist for the American Civil Liberties Union of Ohio, said the measure does in fact allow students to answer homework questions and other assignments incorrectly, based on religious doctrine rather than science — and not be marked wrong. Cleveland.com quoted him as saying: “… this legislation clearly states the instructor ‘shall not penalize or reward a student based on the religious content of a student’s work.’ ”

Amber Epling, spokeswoman for Ohio House Democrats, based her analysis on the language of the measure. She also contends that it would allow students to be scientifically incorrect if they incorporated religious belief into a test response.

The bill’s language–which is at the very least open to interpretation–gives rise to an obvious question: If the bill is not an effort to legislatively “overrule” science, and if there are no examples of religious expression having been penalized, what, exactly, was it intended to accomplish?

According to the sponsor, “protecting students’ rights to express their faith encourages hope in the face of violence in schools and rising rates of drug abuse and suicide.”

Shades of “thoughts and prayers.”

And more students would excel in math if legislators would just change pi to make it easier to remember….

 

The Bully Pulpit

I recently attended the bat mitzvah of a cousin’s daughter at the synagogue in which I grew up.  My cousin’s daughter did a great job with her Torah portion, but I was particularly struck by the sermon, in which Rabbi Dennis Sasso forcefully and eloquently connected those ancient teachings to America’s contemporary challenges.

I sometimes need to remind myself that for every judgmental scold or religious con-man, there is a religious leader like Rabbi Sasso wrestling with the nature of human community and authentic moral behavior.

He was kind enough to share a copy of his remarks.

 Judaism is not just a set of general principles or lofty ideals. It is the living out of those values in the here and now, in the everyday of human encounter between a person and his/her neighbor, a man and woman, parents and children, elected officials and the people, nation and nation.

And so, in this week’s Torah portion, entitled Mishpatim (“Ordinances”), we have the fleshing out of the Ten Commandments. We find here the beginnings of a constitutional biblical tradition, upon which future post-biblical (rabbinic) legislation will evolve, not just as a faith tradition but as a religion of ethical nationhood.

The Rabbi noted that the book of Exodus contains many laws that mirror those of our civil state, including, most significantly, “laws forbidding the oppression of the powerless, the weak, the widow, the orphan, the poor and the stranger — the disenfranchised members of society.”

The commandment to “love your neighbor” occurs in Leviticus 19. However, the commandment to “love the stranger,” the foreigner, the immigrant, (a much more difficult task) – occurs here twice and 36 times in the Torah (“Love the stranger…” “for you know the heart of the stranger, as you were strangers in the land of Egypt”).

The heart of the sermon–at least to me–was the explicit application of Jewish teaching to matters pending at the Indiana legislature.

Reading through this week’s portion we can find guidance regarding many bills currently before our State and Federal Legislatures.

There is SB 439 – regarding Hate Crime Laws – likely not to pass in Indiana because of the pressure of conservative forces that feign to promote themselves as religious.      Well, they are quite out of sync with the biblical heritage they purport to uphold – a heritage that teaches – “You shall not hate your neighbor in your heart.”

The growing vitriol expressed in words and acts of anti-Semitism, Islamphobia and other ethnic and gender directed prejudice speak of an epidemic of hate that must be contained. We should be alarmed by what is happening to words in our times – particularly in the political and religious arenas. Language has become shrill, offensive and misleading. Words, angry and hostile weapons.

Then there are legislative initiatives to curtail rights for LGBTQ+ citizens and to impose doctrinal understandings of reproductive health and abortion rights. Interestingly, this week’s Torah portion contains the key passage that defines miscarriage and abortion not as murder, but as a civil matter (Ex. 21:22-24).

Abortion is a painful and serious decision to be made by a woman in consultation with her physician, loved ones and in keeping with her religious values. In the Jewish legal and moral tradition, termination of pregnancy is never defined as homicide, and it is not only permissible, but required to protect the life and health of the mother, in some cases even her mental health. In Jewish law, the fetus is not defined as a “person,” with independent legal and moral status, until the moment of delivery. Judaism does not share the view that human life begins at conception. Throughout pregnancy the fetus is potential life, to be honored and protected, but dependent on and subordinate to the life of the mother.

To impose particular doctrinal restrictions on abortion constitutes not only a violation of privacy and civil rights, but a limitation of religious rights, by imposing beliefs and values that counter the faith traditions of others. And certainly to muddle legislation with unscientific and potentially injurious information is a pious fraud.

Consider the higher health risks for women and infants that proposed legislation – which includes threats to cut funds for Planned Parenthood – would involve. Our state’s infant mortality rate, already among the highest in the country, would rise dramatically.

Ironically, some of the same groups that counter hate crime laws, and advance restrictions on health care and civil rights, piously advocate for prayer in public schools and, paradoxically, promote liberalization of gun laws – guns that can kill in schools, domestic settings and hateful social encounters…

Today, our nation struggles with the issue of immigration, our response and responsibilities to the stranger in our midst. Our deepest Jewish convictions tell us that protecting the humanity of immigrants, who have come to the United States to better lives for themselves and their children, puts our communities on a path towards strengthening families and society and ultimately, the moral values of our nation. By all means, we need to ensure the safety of the homeland, and guard the security of our borders, but not in ways that discriminate, intimidate and create a siege mentality and police state.

Keeping families together, allowing immigrants to fully contribute to our communities, providing relief for millions of aspiring Americans from unnecessary deportation and family separation, these are at the heart of the Jewish legislative and moral traditions. It is also the best of the American tradition which we as Jews have helped to shape and from which we have benefited.

The Rabbi closed with this profound and increasingly relevant quote from Abraham Joshua Heschel:

When faith is completely replaced by creed, worship by discipline, love by habit; when the crisis of today is ignored because of the splendor of the past; when faith becomes an heirloom rather than a living fountain; … its message becomes meaningless.

Words applicable to both religion and political ideology–and definitely worth pondering.