Why the “libertarian moment” will never come

The first opinion column I ever wrote (circa 1986) was about how the political future was destined to belong to a “libertarian” philosophy, loosely defined as laissez-faire economics combined with tolerant social views. In retrospect, that prediction was way off base, produced by a kind of political solipsism common to teen-agers. When you are surrounded by young, healthy, relatively affluent pot smokers, libertarian views are not exactly thin on the ground. Among the electorate at large, only about 5-10 percent of the population at any given time holds anything resembling a consistent libertarian philosophy, and even those few tend to break down along conventional party lines in practice. The Koch brothers, for example, are in favor of marriage equality — an ideological conviction that drives exactly zero percent of their prodigious political spending.

But the miracle of selection bias has once again brought breathless declarations of an impending “libertarian moment” that will finally drive the government our of our boardrooms and our bedrooms. Those claims have been pretty thoroughly demolished elsewhere, but what interests me lately is the idea that libertarianism may just be structurally incapable of sustaining a viable political movement of any size. I don’t think it’s an accident that the two major political parties embrace significant government intervention in different spheres.

Political movements require a lot of intellectual and emotional investment from people. They need to have goals, aspirations, milestones, heroes and villains. The libertarian philosophy is poorly equipped to satisfy those needs. As one goes down a list of economic and social problems, asking “What should our government do?” it becomes monotonous when the answer is always “Nothing.” Even when “nothing” is the correct response – for example, when one is asked what to do about an unwinnable conflict in a foreign land – it can be difficult to sustain. People tend to be biased toward active solutions, even when inaction is the wiser course.* When Harry Truman campaigned against Congress, he called it the “Do-Nothing Congress,” even though it had actually passed a record amount of legislation. But Truman was politically savvy enough to know that “Do-Nothing” was an effective epithet.

It’s not difficult to motivate political coalitions to fight government intrusion in some particular area (particular when one’s donors are suffering the brunt of the intrusion). It’s not even that difficult to build coalitions around redirecting governmental action (e.g., away from fighting poverty and toward fighting terrorism). But it’s impossible to sustain a political coalition around the principle of doing nothing at all.

* This is not to suggest that I think libertarianism is right on the merits. I think capitalism is currently regulated too little, not too much. I’m disturbed by the private arsenals being built by gun fanatics. And even on social issues where I agree with libertarians, I sometimes find their thought process strange and off-putting. I frequently hear libertarian acquaintances who favor marriage equality, not so that loving couples can have legal protection, but because they think the government should get out of the business of recognizing marriages altogether. Thanks, I guess?




Manic Pixie Fed Chair

This article about Fed Chair Janet Yellen in Politico set something of a record: it managed to enrage me twice before I’d even finished the opening sentence. Here is that sentence, which would not have been out of place in Us Weekly:

A diminutive woman with a pixie haircut is deciding the future of the world’s biggest economy, and we don’t know what she’s really thinking.

Will we ever reach a point where someone can write a profile of a powerful woman that does not talk about her hairstyle? Alan Greenspan chaired the Fed for almost two decades, and I don’t recall ever reading one word about his hair. Even if Janet Yellen’s hair were somehow relevant to her job (spoiler: it’s not), you’d think a writer in 2014 would stop and ask “Am I falling into a sexist cliche here? Maybe I could focus on some more relevant detail to give my story a hook.”

Actually, I was annoyed even before I got to the manic pixie dream hair because of the word “diminutive.” Can we please get over the journalistic trope where we pretend to be surprised that a physically small person (often, but not always, a woman) is occupying a position of power? It’s not like you become Fed chair by completing a series of grueling physical challenges. You’re thinking of American Ninja Warrior. In this newfangled era, with all our modern conveniences, all sorts of people exercise political and economic power. It’s not a revelation that some of those people are short.

Alas, the article does not get much better. The words “diminutive” and “pixie” turn out to be a signal that the writer is going to paint Yellen’s (entirely mainstream) policy views as some sort of flighty, quirky set of attitudes. The writer acknowledges that Yellen is a “regular person” with a “warm smile” (everything seems to circle back to physical appearance). But the article makes her policies seem much more idiosyncratic and mysterious than they actually are. The fact is, all Fed chairs are guarded in their public pronouncements. Their choice of words can literally cause markets to crash. This does not make Janet Yellen a “mystery woman.” As far as I can tell, Yellen has been fairly clear and consistent about her approach: a focus on reducing unemployment in the near term and somewhat stricter regulations on banking. It’s the approach of a disciplined, capable professional, regardless of what her hair looks like.

(Thanks to Brian Zabcik for inspiring the title of this post)

Marco Rubio’s dilemma

This story about Sen. Marco Rubio  illustrates part of why immigration is such a toxic issue for Republicans over the long term. It’s not just that the candidates are required to take a hard line on immigration (which is, on balance, politically harmful). It’s that candidates are required to project hostility, if not outright contempt, toward even the most sympathetic immigrants. It’s as if Democratic voters, in addition to wanting their candidates to support separation of church and state, also demanded that Democratic candidates display open scorn toward churchgoers.

Angels, altar boys and the rhetoric of negation

Like many people I was appalled by the New York Times article on Michael Brown, which included a litany of his alleged sins summarized in the instantly infamous phrase “no angel.” I was also reminded of something Rudy Giuliani said back in 1999, after a police officer shot another unarmed black man, 26-year-old security guard Patrick Dorismond. In an effort to smear the victim, Giuliani unsealed Dorismond’s juvenile record, revealing an arrest for robbery at the age of 13. Giuliani declared that this proved Dorismond was “no altar boy.”

As it turned out, Dorismond had been an altar boy, making the statement inaccurate as well as vicious. But details aside, the strategy was depressingly familiar. Find something, anything, that will allow us to place the victim outside the sphere of those who deserve protection: which, apparently, is reserved for angels, altar boys and other paragons.

The technical term for the figure of speech employed by Giuliani and the New York Times is “litotes,” in which a claim is made by affirming its opposite. It’s a somewhat pretentious device, as when a writer describes something as “not uncommon,” and it is very useful for denigrating people without appearing too nasty. Rather than coming out and saying that a shooting victim is a bad guy, one can make the point indirectly, preserving the appearance of decorum while making the slander just as clear. The word “litotes” derives from a Greek word meaning “small” or “meager,” and that is the point: making the victims seem smaller, less important, less deserving of our attention or our grief. It’s an ugly strategy, and it’s become too commonplace in the aftermath of outrage.

Michael Brown was not an “angel” – he was something much more important. He was a human being. He was somebody’s son, with a past and a future. That future has been cut short, and that past is being distorted and defamed.

The problems with Rick Perry’s indictment have nothing to do with Rick Perry

I have some serious objections to the legal reasoning behind Rick Perry’s indictment, which have nothing to do with the Rick Perry (or Rosemary Lehmberg, for that matter). I am concerned because the underlying legal theory seems dangerously open-ended. The proposed remedy seems worse than the disease.

I yield to no one in my contempt for Rick Perry as a politician and as a human being. As I mentioned in this post, my son literally burst into tears when he saw Rick Perry announcing his presidential candidacy. And as I mentioned in this post, I think Rick Perry is a moron. I have no doubt that, among the many terrible things Rick Perry has done, he has committed crimes. My question is whether it’s possible to charge and convict him of this particular crime without doing violence to certain basic constitutional principles.

I’ve been informed, at every possible opportunity, that the special prosecutor is a Republican. This may shock you, but Republican prosecutors are sometimes overzealous and insufficiently sensitive to constitutional rights. The prosecutor’s partisan affiliation might be relevant to someone claiming that the indictment is partisan, but that’s not my claim. I believe that the prosecutor’s legal analysis is (1) nonpartisan and (2) dangerously wrong. It is possible for both of those things to be true.

The crux of this is the fact that Rick Perry may have been seeking to disrupt or delay an investigation into his cronies. I say “disrupt or delay” because any Perry appointee to the DA’s office would have been up for election in 2016 and would likely have been replaced by someone who would pursue the investigation aggressively. But for purposes of this argument, let’s stipulate that the evidence will show that Perry’s veto threat was motivated in whole or in part by a personal desire to kill the ongoing investigation.

I am completely in favor of a criminal statute that prohibits elected officials from intentionally hindering criminal investigations. It would have to be crafted with some care to make sure that constitutionally protected activity was not affected, but I think such a statute would be viable. Texas does not have such a statute. So the question is whether existing laws can be reinterpreted or extended to cover Perry’s conduct here. As venal as Perry’s actions may be, the effort to stretch the existing law to reach them poses some very real threats to principles of due process, free speech and separation of powers.

The essence of due process in a criminal case is that a defendant of ordinary intelligence (omit obvious joke about Perry’s intelligence here) must be able to determine in advance that his conduct is illegal, based solely on the text of the penal statute. When, as here, the actions are all legally authorized (no one disputes that Perry had the constitutional right both to veto the Public Integrity Unit’s funding to threaten such a veto), the statute must give the defendant fair notice of what element makes a particular action criminal. Under Texas law, that means an indictment must not merely repeat the words of the statute, it must explain in clear language why the conduct at issue is criminal.

The first count against Perry is “Abuse of Official Capacity,” which charges that the Governor “misused” the funding for the Public Integrity Unit by vetoing it or threatening to veto it while it was in his “custody or possession.” The statute defines “misuse” as using property in a way “contrary to an agreement under which the public servant holds the property” or “contrary to the oath of office he took as a public servant.” The indictment does not identify any applicable “agreement,” so one must assume that the theory is that the veto violated Perry’s oath of office. Here is his oath of office, in its entirety:

I, Rick Perry, do solemnly swear that I will faithfully execute the duties of the office of Governor of the State of Texas, and will to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God.

What exactly is the theory here? (Incidentally, we are guessing because the indictment never explains, it just cuts and pastes the text of the statute, which is in itself a potential reason to quash the indictment for lack of fair notice). I suppose you could argue that the terms “faithfully” and “to the best of my ability” is broad enough to cover any sort of improper motive on the part of a public official, but that seems like an impossibly vague and shaky foundation for a criminal prosecution.

Is each prosecutor in Texas just going to have to make his or her own determinations about whether elected officials are living up to their oaths of office? Over the summer the Dallas County judge courageously offered to let refugee children stay in government facilities. A lot of his constituents considered this a failure to execute his duties faithfully, a virtual invitation to people entering the country unlawfully. By what standard do we hold that his conduct was lawful but Rick Perry’s was not? It doesn’t matter to me that in one instance you approve of the conduct and in the other instance you don’t. Criminal law requires a clear, objectively understandable dividing line between what is lawful and what is not.

The second count is “Influencing a Public Official,” which suffers from all the due process problems as the first count, plus a bonus First Amendment problem. Under normal circumstances, “influencing public officials” is not only lawful but constitutionally protected.  The right to petition and persuade government officials is the essence of living in a free society. In very narrowly defined circumstances, involving things like bribery or physical threats, we limit the types of “persuasion” citizens can employ. Even in those extreme cases, we take care to exempt legitimate activity, rather than outlawing campaign donations or violent rhetoric across the board.

In the case of elected officials, most of what they do is designed to influence other public officials. Public officials promise or threaten to exercise their authority in the hopes of getting colleagues, opponents, regulatory agencies and other officials to do what they want. Although I know a lot of people find the whole political process distasteful, there’s nothing intrinsically dishonorable about it, and it’s generally the best way to meet the difficult demands of self-government.

The claim in the indictment is that Rick Perry sought to “coerce” the DA into resigning. “Coercion” is defined to include, as well as threats of bodily harm, a threat “to take or withhold action as a public servant,” which is presumably the provision the indictment seeks to apply. The problem, as Eugene Volokh discusses in great depth here, is that most actions by a public official can be characterized as threats to do something or not do something. Many of these threats are directed at other public officials, seeking to entice or pressure them into doing or not doing something. Obviously that’s not all illegal, so what is the distinguishing factor that would put Rick Perry on notice that he was violating the law? No one has a clue. 

Perhaps this example will make the absurdity clear: If the special prosecutor went to Rick Perry’s lawyer tomorrow and said “We will reduce the charges to a misdemeanor if Governor Perry resigns” (a fairly common practice in such cases), the special prosecutor would be guilty of a crime under his own theory.

Not only does this create a due process problem based on lack of notice, it creates intolerable uncertainty about virtually any attempt to persuade elected officials. The statute applies not only to direct actions by public servants but to those who may “cause a public servant to take or withhold action,” which would include constituents, advocacy groups or lobbyists who have influence with public officials. Even if no one is ever successfully prosecuted, the threat of legal action (and the need for legal advice) represents a huge threat to freedom of association and freedom of speech.

Does anyone think that Greg Abbott (or his right-wing successors in office) could not wreak havoc on Planned Parenthood or environmental groups or any other ideological opponents if this provision is left open-ended? Once again, it’s not even necessary for the prosecution to succeed. The mere fact of an indictment can dry up fund-raising, frighten off supporters and damage reputations (as Rick Perry’s critics have observed, with varying degrees of unseemly elation, over the last few days).

Finally, both counts of the indictment seem to suffer from a very serious problem rooted in the separation of powers. The veto, along with the pardon power, is one of the key checks and balances available to the executive branch. Everyone would agree that the Legislature could not simply pass a law making it a crime to veto (or threaten to veto) legislation. That would be using a penal statute to nullify a constitutional provision.

It’s not at all clear to me that the Legislature could criminalize a veto under any circumstances, but I’m willing to concede that it’s conceptually possible. But it would require much clearer statutory guidance than the statutes involved here. If the Legislature is authorized to place limits on such a fundamental executive power, it should do so clearly and in a way that acknowledges the separation of powers. The ad hoc invocation of broad statutory provisions is not a good way to go about it.

Lawyers are fond of citing an exchange in Robert Bolt’s play A Man For All Seasons, in which Sir Thomas More scolds his son-in-law for saying that to get the Devil he would “cut down every law in England”:

And when the last law was down, and the Devil turned round on you — where would you hide, the laws all being flat? This country’s planted thick with laws from coast to coast — man’s laws, not God’s — and if you cut them down — and you’re just the man to do it — d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.

I give Rick Perry the benefit of law, for my own safety’s sake.

Renting out your property is not “sharing”

This New Republic article discusses the deceptive marketing of the “sharing economy,” as represented by for-profit companies such as Airbnb, Uber and Lyft. I think the problem lies in the very term “sharing economy,” which is Orwellian in a touch-feely sort of way. The very fact that someone coined a whole new term is a little suspicious. We have a word for the age-old practice of granting temporary use of goods or real estate in exchange for money. It’s called “renting.” If new terminology was needed to distinguish web-based renting by individuals from big companies like Hilton or Hertz, I think a simple phrase like “peer-to-peer rentals” or “informal rentals” would have sufficed. But “sharing economy” is actively misleading in at least two ways.

First, the most distinctive thing about “sharing” as that word is used in kindergartens throughout the country is that it does not involve payment. Giving a friend half of your sandwich to be nice is sharing. Giving your friend half of your sandwich in return for a dollar is just running a very small-scale deli. So right from the start the term “sharing economy” tries to make a straightforwardly commercial transaction sound like some sort of altruistic act. Don’t get me wrong, I don’t have anything against commercial transactions, but they need to be viewed – and possibly taxed and regulated – in ways appropriate to their commercial character, not as though they involved a set of neighbors sharing gardening tools.

Second, the warm connotations of the word “sharing” obscure the fact that most of this activity is spurred by distressed economic circumstances. In good economic times, most people don’t spontaneously decide to rent their guest rooms out to strangers. I think new forms of renting are helping a lot of people make ends meet, but it’s just absurd to conclude that it stems from some newly blossomed sense of “sharing.” That’s how you get nonsense like the David Brooks (quoted in the New Republic article) rhapsodizing about Airbnb filling a need for people “hungrier for human contact.” You might as well think that people take telemarketing jobs do so because they love the art of conversation.

And really, apart from the ways in which “sharing” terminology distorts the discussion of policy, it’s a debasement of the idea of sharing. Individual acts of giving are beautiful, and sharing resources can be a vital part of sustaining larger communities. But if someone is asking you for your credit card number, it’s insulting to call it “sharing.”

We should absolutely be paying attention to new technology and new forms of commerce, but at the very least we should try to discuss them in ways that aren’t fundamentally misleading. And at a time when the mentality of the marketplace is intruding into every sphere of life, it would be nice to reserve a word like “sharing” for acts that deserve the name.


Cupcake wars

The anti-equality movement in Oregon is now rallying behind this initiative to allow businesses to boycott same-sex weddings. Before getting into the weighty philosophical implications, let’s pause to marvel at the trajectory of the “traditional marriage” forces. A mere ten years ago, the traditionalist side strode the world like a Colossus, deciding presidential elections and amending state constitutions in every corner of the country. Now they are scrambling to preserve the prerogatives of homophobic bakeries.

Schadenfreude aside, I think these issues are somewhat more complicated and nuanced than we acknowledge. I understand the instinctive response, the urge to declare that any form of discrimination should be illegal. But I think it’s worthwhile to unpack the underlying principles here.

On one level, the whole controversy seems mildly ridiculous. It’s difficult to imagine that a conservative florist is really all that traumatized by arranging centerpieces for a gay wedding. But at the same time, I don’t think a gay couple is all that traumatized by having to turn to one of the 99.999% of florists who are gay-friendly (often to the point of being just plain gay). The low stakes make me suspect that these skirmishes are more of a proxy war, sort of like the way the flag-burning dispute waged for years over a grand total of two actual incidents of flag-burning (the second of which was done in protest of flag-burning laws themselves). As with flag-burning, the larger issues implicate ideas of sanctity and dignity that are more significant than the physical facts would suggest.

It is without question an indignity for anyone to be refused even mundane services on the basis of race, gender, creed or sexual orientation. It’s even more galling when the law’s protection is uneven. Under the current state of the law in many places, a Mormon can refuse to serve gay customers but a gay person cannot refuse to serve Mormons. And there have been gay people a lot longer than there have been Mormons.

At the same time, anti-discrimination laws have always offered some zone of protection to the sensibilities of bigots. Fair housing laws have typically incorporated what is known as (in a phrase that’s sort of insulting to the Irish) the “Mrs. Murphy exception,” meaning that someone taking in boarders in a single-family dwelling may people away based on race, gender or other protected status. It seems like a reasonable compromise to me, in the context of disassembling an entrenched system of enforced apartheid, to leave some room for individuals to “opt out” of the overall requirement of equality. Laws that make some concession to human imperfection tend to work better in a pluralist society, and the slow dying out of hard-core racism has turned those exceptions into dead letters over the long haul.

And if you’re still having trouble feeling empathy for the other side, a few thought experiments might help. Suppose you are were asked to cater a Promise Keepers convention, or a reparative therapy conference, or an anti-immigration rally. Wouldn’t you want the right to say no? Wouldn’t you want the chance to refuse to support, even in an inconsequential way, views that you consider wrong? Like it or not, millions of people consider same-sex marriage to be wrong. I think they’re mistaken, and I hope they come around in time, but I recoil at the idea that they should be compelled to take part in an event that they don’t support.

And if the response is “they’re just baking a cake” or “they’re just arranging flowers,” I think that’s the wrong way to look at it. First of all, I think the attitude reflects a bit of class bias. When I was a practicing lawyer, I had the right to refuse to take cases involving arguments I found abhorrent. I would have been outraged if the law required me to advocate positions I found morally objectionable (for example, defending an employer who fired someone for being gay). I don’t think people who cook or bake or arrange flowers are less entitled to withhold their labor.

I also think we need to take the idea of a wedding seriously, since that’s why we’re fighting this fight in the first place. A wedding isn’t just a party; it’s a ritual packed with social and legal and philosophical meaning. Participating in a wedding – whether as an officiant, a guest, or a contractor – does implicate each person in some degree in the larger meaning being constructed. No one should be compelled to take part. Who wants a wedding cake frosted with self-righteous indignation?

I believe – and I suspect those on the other side agree in their heart of hearts – that this will all be moot in a generation. The idea of a business flaunting its hostility to same-sex couples will seem downright bizarre to our grandchildren, a self-destructive fringe. Let them defend their ever-shrinking barricades, saving their cakes and flowers for the righteous. I’d rather have my flowers arranged by a self-respecting queer, as God intended.

Republican vows of dark vengeance are a good sign

For the record, I was in favor of eliminating the filibuster way back in 2005, when Democrats were in the minority. It’s a hideous device that distorts the norms and feedback loops that enable democracy to function. And it’s an inherently conservative weapon, introducing insidious ways for well-connected interests to thwart change without being held accountable. So just as an American citizen, I’m glad the filibuster has been wounded, and I hope soon to see it consigned to the trash heap of bad ideas.

And of course, Republicans now view the application of majority rule – a principle followed by every other legislative body, board of directors and student council in the world – as the latest step on the road to serfdom. But what I find encouraging is that the Republicans are vowing to wreak a bitter vengeance when they are in the majority. I think this is the healthiest thing the party has done in a long while.

The most disturbing and destructive thing about the current Republican Party is not so much its ideology – the party has been moving steadily rightward for more than 30 years – as its fatalism. Since the 2012 election, Republicans have acted like a party that never expects to win another presidential election. Every action – on nominations, on the debt ceiling, on foreign policy – has telegraphed not just a desire to achieve certain substantive outcomes but a zeal to minimize the result of popular elections. The overall effect is unsettling, like a troubled business owner who starts disabling all the smoke detectors and moving his valuables out of the building. It makes on nostalgic for those days when Republicans boasted of their “electoral locks” and “permanent majorities” and Karl Rove bellowed “Look on my poll numbers ye mighty and despair.”

So the very fact that Republicans can imagine a future where they hold the White House and might make Democrats rue the day they embraced majority rule is a step in the right direction. Simply put, I want Republicans to want to win elections. I want them to respond to the normal incentive structures of democratic societies, where you try to achieve policy outcomes by winning elections. And in the years when you don’t win elections, you still have some incentive to preserve the power to govern when it’s your turn. People don’t vandalize homes they expect to occupy one day.


Adoption narratives

During an online discussion of the movie Up, a friend just asked “Why didn’t Carl and Ellie adopt?” I think the dramatic reason is that the story just wouldn’t work if the couple had children. The writers were trying — brilliantly, in my opinion — to paint a portrait of two people who lived for each other, and what happens when one of them is gone. But what’s interesting to me is that the story (to the best of my recollection) never directly addresses the possibility of adoption. This is consistent with how popular culture tends to present stories involving infertility. The characters either behave as if they have never heard of adoption, or consider it in a perfunctory way. It’s similar to the standard dramatic approach toward any unplanned pregnancy, in which the protagonist must (1) acknowledge that abortion is a potentially advisable option and (2) make it clear that she would never under any circumstances have an abortion. The analogous rules for stories involving infertility is that if adoption is mentioned, it must be made clear that this will not really solve the problem.

Why? Because the overriding message in the culture is that while babies are nice, the really, really important thing is that the baby look like you and your spouse. That’s where the magic lies. The entire point of having children is to replicate yourselves, so adoption is just beside the point. (For an extended rant on this topic, see my video Dr. Seuss, adoption and me.) The fixation on biology produces a mindset in which expensive, physically demanding medical procedures are seen as self-evidently better than raising a child who doesn’t share your DNA.

The flipside of this is that stories about adoption are usually placed outside the context of ordinary parenting. The protagonist in these stories is usually single, either a bold individualist triumphing over society’s expectation or an unlikely hero, coming to the orphan’s rescue. These stories can be good, but they really do tend to reinforce the idea of adoption as some sort of exotic hero’s journey, unconnected to the more familiar impulses to build a family with someone you love.

The stories also tend to be weirdly indifferent to whether the hero is really prepared to become a parent. The heartwarming climax of the movie Juno involves a woman adopting a child virtually minutes after divorcing her unfaithful husband. Entranced with the poetry of this conclusion, the movie never stops to ask if it’s wise to adopt an infant in the middle of your divorce. Literally the first question our social worker asked was whether Chris or I had experienced any major stressful events (death of a loved one, loss of a job, moving, divorce) in the past year. If adoption is viewed as an alternative path to parenting, rather than a self-actualization exercise, it’s an important question.

In all these examples, adoption is portrayed as orthogonal to the traditional parenting narrative, either an unsatisfying consolation prize or an individual vision quest. The reality, in which adoption is basically a different platform for running the “start a family” software that the human race has employed for centuries, rarely enters the picture.