Searching for Motives in Law and in Economics

Corruption in America:
From Benjamin Franklin’s Snuff Box to Citizens United
Zephyr Teachout
Harvard U.P.
376 pp.; $29.95

… campaigns cost money, and — absent an effective system of public funding for elections — there can be no democracy without campaign contributions. Citizens give to candidates whose policies they support, whether their reasons for donating are principled or not. Deciding whether a contribution is corrupt is difficult without knowing the motives of the donor…

Kennedy tried to escape the dilemma by resorting to the worldview of contemporary economics and social science, which studiously ignores people’s motives and seeks only to describe their behavior. Legal scholarship and judicial opinions have incorporated more and more economic concepts over the past few decades, an important trend for understanding Citizens United to which Teachout doesn’t devote enough space.

Economists never ask whether people have good reasons for spending their money on, say, pet accessories. Likewise, the court does not ask whether people have good reasons for making campaign donations. Patriotism, ambition, faith, avarice — all are equally valid reasons for contributing, according to Citizens United.

The quid pro quo standard, which leaves motives out of the discussion, appears to lend the abstract rigor of economics to corruption law. It does not…

Read the rest at The Washington Post.

Be a Policy Hero!

A friend remarked, while we were watching one of the Gotham street scenes in a Batman film: “You don’t need a superhero. You just need better macroeconomic stabilizers!” Unemployment insurance and food stamps could have kept that marginal Gotham resident from turning to crime in desperation. Robust fiscal and monetary stimulus might have kept him employed. Give people a way to earn a living legally, and they’ll desert their criminal overlords. That’s how you vanquish the forces of evil.

This way of thinking about Gotham isn’t entirely alien to the story. In Batman Begins, Ra’s al Ghul explains how the League of Shadows has destroyed every city that once was great. Against Gotham, he tells Bruce, they are using a new weapon: the economy. The best strategy, then, would have been to employ the League’s own weapon against it. True, the industrial economy is prone to a kind of instability that did not exist previously. It could be turned into a tool of destruction by a sufficiently nefarious villain, especially one with a drug that induces panic. At the same time, industrial economies offer new superpowers to the strong and the good: a fluid supply of money, budget deficits, and (of course) immense productive capacity. Batman Begins arrived in theaters in 2005. In its portrayal of a ubiquitous economic crisis with remote, obscure, and somewhat sinister origins, the film was eerily prescient. That’s exactly how the global economy seems to many people today.

The Batman story is a kind of Randian fantasy, in which a society at the point of collapse finds its savior in a wealthy vigilante. Which is not surprising. As Americans, we find this kind of fantasy irresistible. Deference to authority is not a common trait among our popular heroes. The Avengers had the sophistication to explore some of the dangers of this kind of fantasy in the character of Tony Stark, but for the most part, Hollywood indulges our make-believe rebellion.

But for many of us, the rebellion isn’t just pretend. Many Americans seem to think that politics is just an action movie lacking a protagonist — that is, they believe that all our problems could be fixed by someone with the physical and moral courage to do what a man’s got to do, get in there, get ‘er done, and so forth. That’s the fantasy that explains the electoral success of obvious greenhorns such as Sarah Palin, Michele Bachmann, or Ted Cruz. Maybe if Palin had had a cape…

But what about the opposite fantasy? I mean the collective delusion toward which Washington’s policy apparatus is sometimes tempted: that an elite few could save society from itself using a set of extraordinary superpowers never before employed against the ancient hosts of darkness. (These superpowers would include charts, graphs, econometrics, a sophisticated understanding of certain recondite constitutional and legal debates, and, for some, an ability to type very very fast for days on end.) And, furthermore, that these champions chosen by destiny could actually achieve a kind of ultimate victory over evil, that timeless ills such as hunger, alcoholism, and disease could be forever conquered with just the right mix of incentives.

Many of our problems are now nearly solvable in principle. Eradicating malaria might be unrealistic, and it’s likely there will always be junkies. Still, with more intelligent policy, we could greatly reduce the rate of malaria and addiction, not to mention predatory lending, climate change, and countless other sources of human suffering. Sometimes, the fantasy that these problems could be addressed in practice is necessary just to keep a person from incapacitating frustration and despair.

Yet such problems are not practically amenable to policy, because politics — ideology and entrenched interests — always intervenes. This isn’t a reason not to present the case for good policy whenever possible, but it is important to be aware of policy’s political limitations when you are actually writing or implementing it. Too often, analysts want to solve political problems in the same way that they solve problems of policy, through sheer force of intellect. Steven Teles explains the risks of this tendency:

Because the current political environment nurtures suspicion of government action, liberal politicians have developed the sneaky habit of finding back doors through which to advance their goals. This habit has had a corrosive effect on liberalism. In searching for ways to promote public activism in spite of institutional and cultural resistance, liberals have developed a pattern of dishonesty and evasiveness instead of openly making the argument for a muscular role for government. This is why, despite liberalism’s legislative victories, very few recent liberal policies have successfully provided platforms from which to launch new rounds of policy innovation.

The danger lies in trying to find cleverer solutions to political problems than simply changing people’s minds. And, as Teles argues, policies that are intricately designed not only to solve some problem in society, but also to circumvent this kind of political opposition, are less likely to succeed. That’s not at all because government lacks the competence to administer complex programs. Instead, policies fail because political opposition usually proves more tenacious than the policy analyst anticipates.

This opposition may not be directed against a particular program, but could be simply skepticism of government in general. In either case, it thrives like a parasite in the blood of a bureaucracy. The product of legislative compromise over the last century and a half has been a series of institutions that allow maximal representation to those aggrieved by government. The separation of powers and the freedom of the media increase their chances for redress. As a result, bureaucracies can be a forum for competing interests just as Congress is. The episodic paralyses of both are a symptom of the same disease.

To give a concrete example, the fact that medical insurance markets are prone to dysfunction as a result of moral hazard and adverse selection is a problem of public policy. The fact that the incumbents in those markets will exploit Americans’ suspicion of the state to forestall any kind of sane or sensible reform is not a problem of public policy. It is a political problem. The writers of the Affordable Care Act tried to solve both at once.

They might object that they had no reason to think the administration’s Web site would be malfunctioning so spectacularly right now. They might note that some of the exchanges run by the states, which have significantly fewer resources than the federal government, are running smoothly. Yet that the federal site is performing badly and the states are doing better is not really a surprise. State governments are more ideologically unified, so it’s understandable if they don’t share Washington’s schizophrenic tendencies.

It is easy to see the political reasons for the various problems with the site’s construction:

  • Procurement. As Tim Murphy writes, bureaucrats may not have been able to work with the best contractors because of federal procurement rules. These rules are designed to prevent cronyism, ensuring a democratic bidding process. “The procurement process tends to select for firms that are good at navigating the procurement process, not providing good IT services for the dollar,” said one researcher. Procurement rules are a general limitation on officials’ power, not connected with medical insurance at all except that the reason they exist is the same reason a single-payer system would not have passed Congress. Americans do not trust their government.
  • Integration. The Centers for Medicare and Medicaid Services, rather than hiring a general contractor, directly coordinated the several dozen companies it hired to work on the site. Yuval Levin, who spoke to several bureaucrats and insurance representatives, could not get an explanation for why a general contractor was not hired. The most plausible explanation seems to be that the funds were not forthcoming from Congress, and the agency was trying to build the system on the cheap.
  • Partisanship. The administration’s partisan opposition limited their ability to respond to the problems in development. They felt they could not postpone the launch, and they apparently insisted late in the process that developers make it impossible for users to see prices for available insurance policies without seeing individually calculated subsidies as well. According to The New York Times, the administration delayed issuing important rules until after the election, and the number of states that refused to build their own exchanges made the federal task harder. The Post describes in detail how the political sensitivity of the project forced bureaucrats to hide and fragment its implementation.

Liberal advocates of health reform realized that because of Americans’ government allergy, Congress would not enact a public option or a single-payer system. They adopted a different policy, one also supported by some conservative experts. They were trying to avoid an allergic reaction, but instead of swelling or indigestion, the body politic broke out in hives. I hope that Tyler Cowen is wrong, but it does seem as though no matter how ingenious the Affordable Care Act was as a solution to the medical sector’s problems, the law was always just as much of an impossibility in practical terms as more liberal solutions would have been in legislative terms.

Last month, I was excoriated by my commenters who felt that a critique of the Affordable Care Act as insufficiently liberal ignored the political reality of 2010 and denigrated the hard work of the people who got the law enacted. These commenters felt that I betrayed the irresponsible attitude of favoring ideas that are good in principle over ideas that are practically achievable. It now seems that it was the advocates of the law whose view wasn’t practical enough. They had devised a brilliant, resourceful solution that appeared to transcend the twentieth-century opposition of liberalism and conservatism. It was a policy that could pass Congress, but its supporters neglected to consider its political viability over the next several years. As a result, all their hard work and savvy might have gone to waste.

Does that mean they were wrong to try?

I don’t think so. A climate bill, or an immigration bill, or even a second stimulus would have been preferable — but any of those would have met intense opposition in Congress as well. There was a chance that the law that was passed would have succeeded. In fact, it might still succeed. More importantly, though, it is never wrong to believe in the possibility of a better society and to work to make that possibility a reality, as long as you make the effort in good faith.

As nearly every superhero film insists, a world needs to believe in something. The real world can believe in policy. We’ve got so little else.

Washington Monthly Web Logging

This item is late, but last week, I was at it again on the Washington Monthly’s Political Animal. Here are three entries worth revisiting:

  • The worldview of the tea party movement is completely ahistorical, which I suppose isn’t surprising to anyone.
  • In the long term, a functioning parliamentary system would depend on a viable opposition, which the United States lacks at the moment.
  • The federal insurance exchange shows how conservatism’s prophecies of governmental incompetence can become self-fulfilling (and this is something I will certainly keep writing about).
  • Omniscience is metadata.

The High Ground

Think Tanks in America
Thomas Medvetz
U. of Chicago Press
344 pp.; $29.25

Thomas Medvetz’s Think Tanks in America ends with a question: “Should money and political power direct ideas, or should ideas direct themselves?” The rest of the book steers the reader toward what seems to be the obvious answer. Medvetz offers a forceful critique of think tanks, which he sees as allowing those with economic and political clout to exclude disinterested researchers from the debate.

This is a cynical and reductive view. Think tanks are ornery beasts, to be sure—the worst of them lend an aura of respectability and rigor to the most harmful social policies, and at the better ones, donors’ whims often control what researchers can investigate, even if the results are not exactly decided in advance. Yet think tanks can serve valuable purposes, too. Think Tanks in America is exhaustively researched and provides a thorough account of all of the forces that can prevent scholars at think tanks from reaching the right conclusions, but Medevetz says little about why some of them get it right anyway. His book does not provide a useful framework for understanding how think tanks could be improved, or why some of them cope with external influence better than others.

For Medvetz, the modern era of the think tank began with the Institute for Policy Studies, established in 1963. There had been similar organizations for decades: the Brookings Institution, the American Enterprise Institute, the Council on Foreign Relations, and the RAND Corporation, among others. What made the Institute for Policy Studies different was that its founders, Marcus Raskin and Richard Barnet, rejected the ideal these older institutions embodied, that of a society administered by neutral experts employing rational and scientific inquiry. Instead, Raskin, Barnet, and the many others who followed them built activist groups that challenged the academic and bureaucratic elites and made no pretense of impartiality. The success of the Heritage Foundation, established in 1973, firmly established the new model, but the Institute for Policy Studies had pioneered it.

Raskin and Barnet had radical ideas. Medvetz quotes Raskin, who called for a new realm of knowledge with “a non-objective base—at least as objectivity has come to be understood in the social sciences” (98-99). They weren’t alone in their revolt. At the time, much of the country, not just the radical left, was looking askance at natural science and social science alike. Rachel Carson’s Silent Spring, published the previous year, denounced chemistry as the midwife to a brood of toxins, and the movement against nuclear engineering adopted a similar tone. Dr. Strangelove, released in 1964, was a parody of contemporary academic debates over the game theory of mutual deterrence. Psychoanalysis, urban renewal, thalidomide—countless promises of progress were broken in those days.

In Medvetz’s analysis, modern think tanks command a kind of epistemological high ground bordered by the academy to the west, the press to the south, politicians to the north, and business to the east. They often depend for their material support on powerful groups with a political or economic interest in their results. They also rely on journalists and politicians to disseminate and implement their ideas. Medvetz would rather that social scientists be sheltered from the corrupting influences of those fields, perhaps in the relative safety of the academy, but he is ignoring the lesson of the past 50 years or so of public policy research: meaningful independence and objectivity are nearly impossible to achieve anywhere.

For Medvetz, the birth of the think tank was a regrettable departure, one that largely removed scientific expertise from the country’s government. Ironically, it is a common liberal complaint these days that elected officials ignore science, from the warnings of climatology to the principles of Keynesian economics. Were the founders of the Institute for Policy Studies tragically shortsighted? That organization emerged during an intellectual crisis when many people lost faith in expert knowledge after experiencing its very real failures. They began to suspect that all research is done on behalf of someone or other. Medvetz provides no evidence that the crisis was temporary, or that the reasons Raskin and Barnet established their organization have lost their force.

The pharmaceutical industry’s influence on medical journals is a reminder that those half-century-old dilemmas have not conveniently disappeared. There are more mundane problems, too. Candidates for tenure at a university are less likely to challenge a discipline’s assumptions. The processes of literature review and peer review can encourage research that accords with prevailing intellectual trends. As Raskin and others recognized, these factors can distort the meaning of “objective” to “accepted by a large group of people.” That’s not to say most academic papers aren’t valid or worthwhile, but the need for a different kind of research organization remains.

It is true that think tanks have, to some degree, become the bullhorns of the powerful. The wealthy and the well-connected use them to amplify their protests and their slogans. Still, that influence can be positive as well as destructive. Whatever your political views, you can probably point to a writer sponsored by a think tank whose work you admire, and she owes her job to some rich donor—or to a corporate foundation, or a labor union. One of the many useful statistics Medvetz presents is that 40 percent of the Economic Policy Institute’s budget has come from unions in recent years. Yet when conservative opponents dismiss the group’s work on that basis alone, they are committing a fallacy. At times, Think Tanks in America verges on a similar ad hominem.

Perhaps if social scientists could retreat to caves in the wilderness to compile their data, they might achieve meaningful intellectual autonomy. That isn’t possible, and not just because researchers have families to think about. They want their work to be visible, to have an effect on the political process, otherwise they wouldn’t do what they do. For some, lecturing and publishing aren’t enough. They want sound studios and lobbyists, and they leave the academy for Washington. Yet wherever they work, researchers are exposed to political and economic forces constantly, from the grant proposal to the book tour. The connections Medvetz objects to are why think tanks have the wherewithal to support valuable research and to advocate for the implementation of good policy.

Demanding that “ideas direct themselves,” as Medvetz does, is really to insist that ideas disappear. Consider the amendment by Sen. Tom Coburn (R-Okla.) to make it harder for the National Science Foundation to fund research in political science. In Think Tanks in America, Medvetz argues that the Reagan administration was able to manipulate organizations researching poverty because of their dependence on federal funding. Accepting that logic, you would have to conclude that Coburn is trying to do the discipline a favor by rescuing it from government officials who may have an ulterior agenda.

No think tank is free from the forces Medvetz describes, so his critique discredits all of them indiscriminately, which is unfair to those organizations that produce rigorous analysis. Think tanks are diverse, and it would be worth studying how their institutional structures affect their research. For example, how are think tanks with wealthy, individual donors different from think tanks supported by foundations with many donors or whose primary donors have passed away? Does a more formal grantmaking process reward think tanks that maintain higher standards, or does it prevent them from responding nimbly to the changing political environment? Also, why have some conservative think tanks expelled employees who have objected to the agenda of the G.O.P. elite, such as Bruce Bartlett and David Frum? Are there ways of protecting fellows from political dismissals?

Medvetz’s approach also prevents him from asking whether there are any policies think tanks can adopt to improve the quality of their scholarship. Their social scientists do not have to seek publication in refereed journals. They are not obliged to disclose their sources of funding, and they often conflate policy research with advocacy. Some see this as laxity, but others might prefer to call it flexibility. Are there ways for think tanks to remain flexible while preventing methodological catastrophes such as the Heritage Foundation’s work on immigration earlier this year? Frustratingly, Medvetz does not address these issues. These problems are a result of how hard it is to identify a purely objective, infinitely disinterested standpoint from which to evaluate researchers and their work. The fact that there is no clear way for them to demonstrate their credibility forces think tanks into all kinds of contortions as they participate in the democratic process.

Still, Think Tanks in America is worth reading, because the book demonstrates conclusively why these institutions are important. It might be true that the shape of the electorate determines the political agenda more than any amount of research, as demonstrated by the change in the conservative response to Heritage’s position on immigration since 2007. Even so, think tanks—and Heritage foremost among them—have managed to define what we think of as nonpartisan public policy research. Medvetz wants us to take a hard look at that definition, and ask ourselves whether it means what we think it does.

Washington Monthly Web Logging

I was freelancing again for the Washington Monthly on Saturday and Sunday. Here are two items worth reading:

Koch Industries Acquires Molex

Koch Industries, the industrial conglomerate owned by the brothers Charles and David Koch, is making a new acquisition. The company is paying $7.2 billion in cash for Molex, a maker of electronic components used in the iPhone, among other devices. It is the Kochs’ largest deal since their purchase of paper products manufacturer Georgia-Pacific in 2005.

The Kochs are widely reviled for quietly supporting the Tea Party movement with their significant wealth, but I don’t begrudge them the right to make shoddy arguments if people are willing to listen. Their business practices, however, are  far more destructive. At the companies the Kochs control around the world, there appears to be a pattern of corrupt, monopolistic, and generally unlawful behavior.

In offering $7.2 billion for Molex, the Kochs are betting that the company is potentially worth much more than public investors on the stock market think it is now. Shareholders will receive $38.50 per share of common stock, which is 31 percent more than last week’s price on the stock market.

Whatever else you might want to say about them, the Kochs never pay too much for anything, ever. Why are they so optimistic about Molex?

Part of the answer is that Molex has been paying a hefty dividend of around $170 million a year to its investors, so the 31 percent premium is somewhat misleading, but the dividend isn’t enough on its own to explain the high price that Koch Industries is paying.

The company, based in Lisle, Ill., is largely owned by the Krehbiel family, which established Molex in 1938. Members of the family and the company’s management own 32 percent of common stock. The company had 35,983 employees on June 30, but Shawn Harrison, an analyst at Longbow Research, suggests that number might have to decrease if the Kochs are going to make money on the deal. Molex is not as profitable as its competitors, Harrison argues, because the management has tolerated unproductive expenditures. They will have to close some facilities, reduce the size of the workforce, and shift the company’s focus away from consumer electronics, a market that is approaching saturation.

“The transaction is expected to provide substantial opportunities for our worldwide employees, many of whom have spent much of their working lives at Molex and are responsible for the company’s long-term success,” chairman Fred Krehbiel wrote in a statement that, given the economic reality of the deal with the Kochs, appears duplicitous at best.

“It will be easier for MOLX management to make the cost-cutting moves under Koch ownership given a move away from the public eye,” Harrison and a colleague wrote.

Whether as a result of the scrutiny that comes with owning a public company, or simply out of fondness for the businesses they inherited, the Krehbiels haven’t been able to do what’s necessary to make their company competitive. “There’s a family ownership dynamic,” Harrison told me. “Maybe in some cases the family was willing to hold on to some of the costs instead of taking a more aggressive look at them.”

Whether the Koch brothers’ purchase of Molex is likely to benefit the economy and society as a whole is an open question. On the one hand, they probably will make the company more efficient and more profitable. On the other hand, as Krehbiel acknowledged, Molex probably owes a large portion of its success so far to its employees, who might not have stayed with the company and made countless unrecorded sacrifices on its behalf over the years if they hadn’t trusted the Krehbiels. I see the sale as the family reneging on a previous implicit understanding with its workers.

And as Steve Pearlstein noted earlier today, when corporate leaders make a habit of violating employees’ trust in the name of protecting equity investors, the system as a whole suffers, and so do shareholders.

One last observation: there is no good intellectual reason for distinguishing between a violation of this trust and the trust that a community or a country places in a corporation. To be sure, there are remedies at law when two people die in an exploding cloud of butane, as occurred over one of the Kochs’ pipelines in Lively, Texas in 1996. Yet those remedies are not substitutes for contracts: there are limits to what prosecutors can prove in court, many offenses go undetected, and the law can only do so much. After the explosion in Lively, the father of one of the deceased received $296 million from Koch Industries after he won a wrongful death lawsuit, but he never saw his daughter alive again. In that case, the Kochs simply exploited people lacking adequate contractual and legal protections for personal gain. They could do the same to the 35,983 employees of Molex.

Washington Monthly Web Logging

I spent the last two days writing at the Washington Monthly. Here are three of my entries that are worth reading:

Normativity and Nerve Gas

Dearly beloved, avenge not yourselves, but rather give place unto wrath; for it is written, Vengeance is mine, I will repay, saith the Lord. — Rom. 12:19

If President Obama decides to order a military strike against the Syrian government in the coming days, his decision will be an extraordinary departure from the U.S. foreign policy of the last twelve years, a reversal, even. Instead of a policy that has protecting U.S. citizens and U.S. interests from Islamist terrorists as its only goal and that does not acknowledge international norms or international law, the administration would be adopting a worldview in which U.S. power is the only competent guardian of certain universal, abstract principles — and must, therefore, be employed in their defense.

Thus, the invasion of Iraq just over a decade ago and the current situation are only superficially similar. In Iraq, the Bush administration’s goal was to make the world safe for democracy by effecting regime change through military force. The intellectual justification for the war preceded the administration’s claims about Saddam Hussein’s nuclear program. Because of their overarching interest in protecting the U.S. strategy, the administration was willing to overlook, you might say, certain factual inaccuracies in its case for war. Now, by contrast, the Obama administration appears to be pursuing a “limited, narrow” assault against Bashar al-Assad as a punitive measure. Such an assault, far from effecting regime change, would in fact be a confirmation of Assad’s legitimacy as a member of the international community, as an actor whose behavior the international community might reasonably expect to influence in the future through some quasi-codified system of punishment and reward. Furthermore, while Hussein’s nuclear program did not exist, Assad’s chemical program is well documented, and today’s declassified intelligence report is quite convincing. The writers explain that U.S. analysts relied heavily on “open source reporting” in their assessment. That is, like everybody else, they looked on the Internet and came to the same conclusion as everyone else the world who is not either duplicitous or a complete idiot. Their explanation:

Three hospitals in the Damascus area received approximately 3,600 patients displaying symptoms consistent with nerve agent exposure in less than three hours on the morning of August 21, according to a highly credible international humanitarian organization. The reported symptoms, and the epidemiological pattern of events – characterized by the massive influx of  patients in a short period of time, the origin of the patients, and the contamination of medical and first aid workers – were consistent with mass exposure to a nerve agent. We also received reports from international and Syrian medical personnel on the ground.

We have identified one hundred videos attributed to the attack, many of which show large numbers of bodies exhibiting physical signs consistent with, but not unique to, nerve agent exposure. The reported symptoms of victims included unconsciousness, foaming from the nose and mouth, constricted pupils, rapid heartbeat, and difficulty breathing. Several of the videos show what appear to be numerous fatalities with no visible injuries, which is consistent with death from chemical weapons, and inconsistent with death from small-arms, high-explosive munitions or blister agents. At least 12 locations are portrayed in the publicly available videos,and a sampling of those videos confirmed that some were shot at the general times and locations described in the footage.

We assess the Syrian opposition does not have the capability to fabricate all of the videos, physical symptoms verified by medical personnel and NGOs, and other information associated with this chemical attack.

Like his predecessor, Obama is contemplating a military action in the Middle East, but one of an entirely different nature, conducted for very different reasons, and supported by abundant, compelling evidence rather than propaganda. Having claimed wrongly that an Arab autocrat’s arsenal posed a danger to the world once before, Washington is now in the unenviable position of the boy who cried “Wolf!”

I believe that this new set of assumptions supporting the current administration’s justifications for a potential strike in Syria are an improvement, in a way. That isn’t to take away from the fact that a strike in Syria would be hypocritical, incoherent, and ill advised.

Earlier today, Secretary of State John Kerry explained why the administration believes a response is necessary:

It matters to our security and the security of our allies. It matters to Israel. It matters to our close friends Jordan, Turkey and Lebanon, all of whom live just a stiff breeze away from Damascus. It matters to all of them where the Syrian chemical weapons are — and if unchecked they can cause even greater death and destruction to those friends.

And it matters deeply to the credibility and the future interests of the United States of America and our allies. It matters because a lot of other countries, whose policy has challenged these international norms, are watching. They are watching. They want to see whether the United States and our friends mean what we say.

“International norm” is a phrase that was never heard in Washington until last week. Now every senior official who gives a press conference uses it at least twice. The administration is careful to site a norm, not a law, because it is a phrase that exactly captures the administration’s view of the situation. Chemical weapons are illegal, but Syria is not a party to the relevant convention, and the administration doesn’t really believe in international law, anyway, as evidenced by the fact that Obama is considering using military force in Syria without the consent of the United Nations. Instead, the administration is simply appealing to the tacit consensus among countries and people everywhere that chemical weapons should never be used.

Of course, a nation that habitually flouts international norms cannot coherently defend a military action using this argument. If the administration is serious about maintaining norms against unconventional weapons, then it ought to revise its position on the use of drones. Discouraging countries from using nerve gas is an important goal, but countries also should not unilaterally use force in foreign territory. Strengthening the first norm by weakening the second through yet another exception is difficult to justify. If anything might have saved those 1,429 people whom Assad drowned in nerve gas last week, it would have been a U.S. posture over the last twelve years that made clear to the world that we do not tolerate inhumanity. Instead, we practiced it ourselves, at Guantánamo and at black sites around the world.

The problem with the idea of international normativity is that it depends on some concept of universal human right. Our belief in a certain dignity that inheres in each of us and that must not be violated under any circumstances is the only reason that we condemn some practice in itself, at all times and in all places. We tend not to believe that any person’s suffering is beyond our concern. Yet this administration and the previous one have demonstrated that they do not share this belief. In invoking an international norm, the administration is appealing to a concept that it does not take seriously. (Consider Matthew Yglesias’s very difficult question: if our reason for attacking Syria is that we believe in averting human suffering, why don’t we just eradicate malaria instead?)

One could respond that a worldview that rejects universal human rights is not only more pragmatic, but ultimately more humane, and that idealism is often counterproductive. Realpolitik, even if it means that some will suffer unjustly, is arguably a better way to protect the freedoms of U.S. citizens as well as the dignity of others around the world.

I disagree, but I do hope that Obama will practice a degree of realpolitik in the current crisis and eschew a military strike in Syria. Even if the administration’s purpose is simply to prevent the future use of chemical weapons, an attack on Assad could cause the opposite. As the intelligence assessment made clear, the weapons were not used for their psychological effect, but for tactical purposes in a desperate effort to attack a secure rebel position. If Assad feels like U.S. cruise missiles are an existential threat to his regime, he could become even more desperate. Besides, it is impossible to know how his allies in the region would respond. A catastrophe in which the entire region — Iraq, Lebanon, even parts of Turkey — devolves into sectarian chaos is not impossible. Gas is a terrible thing, but a person can die slowly and miserably from a bullet wound as well.

The administration should either abandon the defense of international norms as naïvely idealistic, or it should take those norms seriously, avoid a military intervention, and revise some of its other policies as well. The only indefensible option is what appears to be the administration’s current strategy. It is both unlikely to succeed and intellectually inconsistent.

A Belated Response to the President’s Remarks on Surveillance

I’ve been on vacation, so these thoughts about President Obama’s August 9 speech on digital surveillance are somewhat late. I do think the proposals he advocated are the best among the available options for reform, especially the idea of appointing an adversary to the state to argue cases before the Foreign Intelligence Surveillance Court. Yes, had he suggested ending one or two of the comprehensive surveillance programs, then corks would have been popping, but simply due to the inertia of the security apparatus, those programs would most likely just restart in the next few years anyway. Once it stumbled across those weeds sprouting again in the garden, Congress would spare them the trowel and retroactively authorize them, just as it has done in the past. The most important thing is to establish some kind of procedure that will protect democracy from surveillance in the long term, one that will guard effectively against the worst abuses and will prevent unelected officials from making major decisions about the structure of our society in secret without any meaningful check on their authority. A court that meets in secret but has a diverse bench and hears both sides of every case seems to me like a reasonable and workable compromise.

All the same, that the Obama administration has not recognized the importance of this task casts doubt on the depth of their commitment to constitutional government and at the very least represents an embarrassing failure of imagination. Obama himself shares those faults, as his remarks made clear, nor does it seem that anyone in the White House has understood the seriousness of the problem.

The closest Obama came to admitting his government’s mistakes might have been when he said, “It’s not enough for me, as president, to have confidence in these programs. The American people need to have confidence in them as well.” That’s true. Moreover, the fact that the executive undertook several massive programs to collect and, in some cases, store records of its citizens’ personal communications more or less on its own initiative without their informed consent or that of very many members of Congress shows that the rule of law has lost some of its force. Because of the nature of bureaucracies, which is to grow like weeds as long as they remain hidden under the bushes, that authority is likely to continue eroding. Obama should acknowledge failing the spirit if not the letter of his oath to uphold the Constitution.

Likewise, Obama tried to assure reporters that the programs are not being abused:

If you look at the reports, even the disclosures that Mr. Snowden’s put forward, all the stories that have been written, what you’re not reading about is the government actually abusing these programs and, you know, listening in on people’s phone calls or inappropriately reading people’s emails. What you’re hearing about is the prospect that these could be abused. Now part of the reason they’re not abused is because they’re — these checks are in place, and those abuses would be against the law and would be against the orders of the FISC.

That is untrue, first of all. The National Security Agency frequently goes beyond its authority, according to an internal review, though it would be difficult to prove that it is doing so intentionally. Yet beyond specific abuses, any one of which is probably harmless, this statement reveals how poorly Obama understands the issue. The court cannot possibly be a meaningful check, since there is no possibility of appeal from its decisions, all of its members are appointed by the same man, and only one party is permitted to appear before it. The law only has legitimacy to the extent that members of Congress are permitted to understand how it is being implemented. Let’s assume that the agency had never once abused either the spirit or the letter of its authority. Even so, the conditions in which these programs are being conducted amount to an abrogation of normal constitutional processes. That is the abuse, and in itself it is a very serious one.

My point here is that in this country, the constitution and the rule of law are not simply means to an end. We have always insisted on protecting them for their own sakes. Even if the government does succeed in guarding citizens’ liberties, if it does so only as a consequence of the benevolence of the magistrates and not because of legal constraints, there is real cause for concern. Constitutional government cannot depend on the people’s confidence in the wisdom of any one particular leader, even if that confidence is well founded. Likewise, particular agents of the government cannot be responsible for deciding the limits of their own authority, without the checks and balances imposed by the other branches, even if those agents do so judiciously for a while. The ultimate result would be autocracy. The debate over surveillance has given all of us a chance to think carefully about what the rule of law really means and to what extent we can tolerate deviations from it, but it is an opportunity the current administration has ignored.

King’s Speech

Rep. Steve King made a very confusing speech on Friday. It was confusing, first of all, because anytime a congressman starts talking about the development of faith and rationality since Moses and doesn’t stop talking for 27 minutes, people are going to be confused. Second, I just don’t understand how someone who so obviously believes in having an open mind and in thinking critically can be so inconsistent and nonsensical.

King was defending a comment he made earlier this week about undocumented immigrants, in which he seemed to suggest that most undocumented immigrants who came across the border as children were smugglers, and in addition, that they are all underweight and muscular from hiking through the desert with drugs. He’s been roundly excoriated for saying so, including by the speaker. In his speech on Friday, he laid out the  evolution of the freedom of speech over three millennia, suggested that his own freedom of expression was being restricted, and challenged his opponents to debate him on the merits:

We’re not going to say, ‘You can’t get together and talk about these things,’ because we know that in open public discourse and dialogue–what emerges from that are, we believe in this reason that we’ve inherited from the Greeks and other civilizations–that what will emerge is the most logical, rational policy. That’s what I’m advocating for, Mr. Speaker. I want the most logical, rational policy.

Greek rationality, he claimed, somehow depended crucially on Mosaic law. I have no idea what he’s referring to, so it wouldn’t be fair for me to object to that aspect of his argument or any of the other moments of historical revisionism in the speech. To summarize King’s thesis, then, exercising the God-given liberty to debate issues publicly and express oneself plainly is a duty, and it leads to optimal policy. I agree wholeheartedly with this sentiment. Yet if King believes it himself, then he should grant that others have an equal right to mock him when he says things that don’t make sense. That’s how we develop good policy in this country.

The congressman went on to complain that others are not thinking critically about immigration. “We send our kids off to school and sometimes they’re just taught a mantra, but they’re not taught how to take ideas apart and understand the components of them and put them back together,” he said. Let’s take King’s ideas on immigration apart and describe some of their components. To be fair, after listening to his speech, I do think his remark earlier this week was taken out of context to some degree. He honestly meant not to insult, but to convey concern for the welfare of children involved in smuggling drugs with his comments about their weight and musculature. He truly is worried about the danger to anyone trying to hike into the country illegally through miles and miles of wilderness. “That’s appalling to me, the death across the Arizona border,” he said on Friday.

Oddly, he thinks the best way to act on his abundance of compassion for those people crossing the border is to make doing so more difficult and dangerous for them. His proposals would force them into even more inhospitable and remote territory. The goal seems to be to make it as likely that they die of a gunshot wound as of thirst. The fence has, predictably, made the crossing much deadlier, and the obvious way to help any children who might be involved in a cartel’s smuggling operation would be to tear it down.

Also, I could be wrong, but I don’t think anyone has suggested removing penalties for trafficking or limiting this government’s efforts to pursue the cartels in Mexico. King was conflating two separate legal issues when he claimed that the bill “would legalize those people.” Additionally, the fundamental argument of the Dreamers stands. Whether a child is brought over illegally by their parents or is a paid mule for a cartel, they aren’t culpable for that decision.

Finally, King said that many of them had carried 75 pounds of marijuana with them across the border when they immigrated illegally as children, which is impossible. Since King has defended this number, I’m very suspicious of his sources in the border patrol. Their agency obviously has everything to gain from exaggerating the problem, and the idea that cartels would rely in any significant way on children to carry their goods on foot through the desert doesn’t make much sense anyway, just from an economic perspective. (Luke O’Neil catalogues King’s other errors.)

The question at this point is whether King is worth debating. Why bother to analyze his arguments at all, since they’re so shoddy? For me, the fact that King fails to satisfy the basic requirements of rationality makes his defense of the project of reason very interesting, and a little disturbing. Admittedly, he is only one datum. Yet he is able to explain what you might call the standard model of how competing ideas should develop into shared beliefs and public policy in a free country, while simultaneously demonstrating in his own person the total failure of that model.

You also can’t just dismiss the guy as a reactionary extremist, either. For now, Congress depends on the consent of people like him to take any real action, meaning that the views of the conservative wing of the Republican Party are effectively determining national policy. Boehner might have scolded King for comparing Mexican kids’ calves to cantaloupes, but he has not said anything about bringing the bill to a vote, which shows you where the real power in the House G.O.P. caucus is. Likewise, it’s the deniers of climate change who continue to determine the federal government policy by barring action. King made his views on this issue clear three years ago:

There have been many times in the history of the planet that we’ve had higher concentrations of CO2 than we have here today. There are a couple of German engineers that took that theory apart and proved it wrong in a lab. I’ve read through that, but I’d have to go back to school for a half a year or a year to tell you I followed every bit of their rationale. But the presumption of the Greenhouse Effect is at least, from what I saw, was pretty convincingly rebutted.

This kind of reasoning is reprehensible, and it is leading inexorably to global catastrophe and loss of life. Since this reasoning rejects the product of the scientific process, it is also difficult to reconcile with the belief King articulated in the ability of a group of people, talking reasonably with another and offering evidence in support of their views, to describe the world accurately and choose the best course of action. (Here is the paper he’s referring to, which was not subject to peer review. Here’s a compilation of responses. To summarize them, without the greenhouse effect, it’s difficult to account for the fact that the earth isn’t as cold as the moon.)

Let’s look again at how King describes rationality. The archetype he cites is Jesus’ exchange with the authorities in John 18:

The high priest questioned Jesus about his disciples and about his teaching. Jesus answered, “I have spoken openly to the world; I have always taught in synagogues and in the temple, where all the Jews come together. I have said nothing in secret. …”

The author’s concern throughout this gospel is with the standards of evidence and testimony appropriate to proving who Jesus is. Before his death, Jesus begins to describe one such standard. When someone’s view of the world is transparent and declared publicly, there are plenty of opportunities for others to object if there are grounds for objection. A person demonstrates her conviction and earnestness by making her views known. Gerlich and Tscheuchner, King’s German engineers, failed to meet this standard when they did not submit their manuscript for peer review. If they had, there would have been an opening, as Jesus implies next, for confrontation, for give and take. “Why do you ask me?” he continues:

“Ask those who heard what I said to them; they know what I said.” When he had heard this, one of the police standing nearby struck Jesus on the face, saying, “Is that how you answer the high priest?” Jesus answered, “If I have spoken wrongly, testify to the wrong. But if I have spoken rightly, why do you strike me?”

Jesus offers up his divinity to the exchange of point and counterpoint. We tend to think of faith as not being something to subject to argumentation, but John’s Jesus claims otherwise. The passage explains in what sense King is able to claim that participating in public debate is a God-given liberty: for John and his contemporary readers, the appeal to someone else’s reason went together with Christianity as means of liberating yourself from the arbitrary rule of the powerful in the ancient world.

Small consolation for the millions of immigrants living undocumented in the country now, for whom power must now seem as arbitrary as ever. Despite espousing an entirely sensible view of rationality, King and the party he represents remain thoroughly and frustratingly irrational.

Maybe there’s a problem with the standard model. Maybe, even when people claim to be trying listen carefully to their opponents, their views are inevitably determined by economic interests or personal hatreds. Maybe that is Jesus’ message in John 18. It could be that rather than arguing for a standard of evidence based in transparency and mutual dialogue, Jesus wants to demonstrate how inadequate are the methods we use in this world are for separating true from false. That possibility raises the same question a despairing Pontius Pilate asks at the end of the chapter: “What is truth?”

You can watch King’s speech here.