The Brave New Media World

Henry,

You raise a few interesting points. First, I would just note that your major premise is one that we've discussed a few times at Boys' events, although I can't recall whether you've been present for any of those discussions. It was the subject of a short but prescient book by Cass Sunstein titled Republic.com. He argued, precisely as you have, that proliferation in media sources will fuel self-selection of sources that confirm preexisting biases, undermining our cultural common ground and fragmenting our social beliefs. I think the threat is real, but can be overstated (as I'll discuss further below).

Second, I know exactly what you're talking about with regards to the comment sections on news sites. That stuff is purely toxic. It's even worse than you find on the purely partisan blogs and forums (e.g. DailyKos or RedState). News sites and YouTube comment threads and things of that nature appear to draw the absolute dregs for commenters. It's disturbing to read it, but ultimately I don't think that amounts to much. I suspect that it really is a very small percentage of the people who read the news stories or watch videos who post those comments (and probably with a high percentage of repeat players from one site to another). The numbers of people who participate in sites like DailyKos and RedState are more significant. Of course, those people also tend to suffer from groupthink and hyperbole and certainly represent a fragmentation in worldviews. But again, I'm not yet convinced that this is especially problematic. Their influence is ultimately fairly limited, as each party's Presidential primary this year demonstrated. In both cases the netroots favorites (Edwards for the Democrats, anybody-but-McCain (Ron Paul?) for the Republicans) failed to win.

Ultimately I think the democratization of public discourse via the Internet has been a tremendous win for the public. Contrary to your contention that we've seen a disappearance of sincere public discourse, I think we're seeing the emergence of new and important avenues for public discourse. There is a dialogue taking place on a community of blogs that surpasses in intelligence and candidness anything I can recall from the pre-Internet (or early Internet) days. To name just a few: Andrew Sullivan, Obsidian Wings, Matt Yglesias, Nate Silver, Al Giordano, Dan Drezner, Greg Djerejian, Ezra Klein, Tyler Cowen, John Cole, Cunning Realist, Josh Marshall. This short list covers a pretty broad spectrum of opinions (and certainly there are many others out there). These people are intelligent, generally well-educated, have diverse areas of expertise, and are interested in honest and sincere dialogue. Better yet, many of them read one another (and many other bloggers) and actually engage in back-and-forth discussion.

While the readership of the blogging community is still not at the same level as traditional media consumption, I think its influence is considerable. The bigger blogs (Sullivan, Marshall) draw in the neighborhood of a million page views a day, which is not insignificant. Moreover, that readership is disproportionately drawn from politicians (or at least political staffers), policymakers, and the media. This blogging community has the ability to affect campaign narratives. I think this is one of the reasons the McCain campaign flailed so wildly from one narrative to another over the Summer and Fall. The McCain strategists, all Karl Rove proteges, couldn't understand why their Obama narratives were not sticking the way the Al Gore - fibber and John Kerry - aloof liberal narratives stuck. The bloggers ripped their idiotic narratives to shreds and were quick to pounce if the traditional media went too far astray.

The emergence of this community presents a challenge to Sunstein's predictions. Certainly there is plenty of evidence on the Internet of Sunstinian self-selection and reinforcement of biases. But there is also a conscious acknowledgment among others that in order to be relevant as a thinker and a political writer one must be willing to inhabit the same world as other writers and one must be willing to engage differing views on more than a superficial level. Certainly this creates some tension between the self-reinforcing Freepers and Kossacks and the reality-based bloggers. On the conservative side this tension has spilled over into something like open warfare with the Freepers and Redstaters attempting to expel any conservatives who do not fully acquiesce in the Bush/Rove Republican orthodoxy. It's not clear how this is going to play out, although it seems inevitable that it will end badly for the Freepers, who are at this point quite remote from reality.

To conclude, I think, Henry, that you and Sunstein both had useful insights into the impact of hugely diverse media landscape, but I think the danger here is easily overstated. The broad expansion of the media landscape has occurred because the barriers to publication have dropped to almost nil (case in point: the Boys Weekend Journal), and the elimination of these barriers has also had tremendously positive effects. It does require people to be more savvy in their consumption of, and interaction with, the news, but the Internet has also made a great many people far more savvy about news media than the public has previously been. And the ease of entry into the market and the ease with which consumers can move from one product to another has allowed for something much closer to a true meritocracy than has ever existed in the traditional media. Nate Silver could never have gone from obscure bystander to political media powerhouse in less than a year in the old media market. I would go so far as to say we are entering a renaissance of political discourse. But the interplay between substantial number of people who have defied Sunstein's expectations with the still considerable masses who have conformed to his expectations does warrant continued observation. While relations between the two groups may frequently be strained, I think by virtue of pure merit alone the reality-based bloggers will always remain relevant and important.

More Barack

A great in-depth profile from the New Yorker. Not too surprising to see some quotes from fellow Chicago Law prof (and BWJ favorite) Cass Sunstein, but there's also some stuff in there from Robert Putnam, from whom Obama took a seminar based on Bowling Alone. And Sunstein even throws out a Rawls reference. It's a regular BWJ-fest. Here's some of the meaty stuff:

Obama’s drive to compromise goes beyond the call of political expediency—it’s instinctive, almost a tic. “Barack has an incredible ability to synthesize seemingly contradictory realities and make them coherent,” Cassandra Butts says. “It comes from going from a home where white people are nurturing you, and then you go out into the world and you’re seen as a black person. He had to figure out whether he was going to accept this contradiction and be just one of those things, or find a way to realize that these pieces make up the whole.” In the state senate, this skill served him well—he was unusually dexterous with opponents, and passed bills that at first were judged too liberal to have a chance, such as one that mandated the videotaping of police interviews with suspects arrested for capital crimes. “In our seminar, whether we were arguing about labor or religion or politics, he would sit back like a resource person and then he would say, I hear Jane saying such and such, and Tom seems to disagree on that, but then Tom and Jane both agree on this,” Robert Putnam says. (For a couple of years, Obama participated in a seminar about rebuilding community, inspired by Putnam’s article “Bowling Alone.”) “I don’t mean he makes all conflicts go away—that would be crazy. But his natural instinct is not dividing the baby in half—it’s looking for areas of convergence. This is part of who he is really deep down, and it’s an amazing skill. It’s not always the right skill: the truth doesn’t always lie somewhere in the middle. But I think at this moment America is in a situation where we agree much more than we think we do. I know this from polling data—we feel divided in racial terms, religious terms, class terms, all kinds of terms, but we exaggerate how much we disagree with each other. And that’s why I think he’s right for this time.” Even when he was very young, Obama was scornful of, as he puts it, “people who preferred the dream to the reality, impotence to compromise.”

Sometimes, of course, there is no possibility of convergence—a question must be answered yes or no. In such a case, Obama may stand up for what he believes in, or he may not. “If there’s a deep moral conviction that gay marriage is wrong, if a majority of Americans believe on principle that marriage is an institution for men and women, I’m not at all sure he shares that view, but he’s not an in-your-face type,” Cass Sunstein, a colleague of Obama’s at the University of Chicago, says. “To go in the face of people with religious convictions—that’s something he’d be very reluctant to do.” This is not, Sunstein believes, due only to pragmatism; it also stems from a sense that there is something worthy of respect in a strong and widespread moral feeling, even if it’s wrong. “Rawls talks about civic toleration as a modus vivendi, a way that we can live together, and some liberals think that way,” Sunstein says. “But I think with Obama it’s more like Learned Hand when he said, ‘The spirit of liberty is the spirit which is not too sure that it is right.’ Obama takes that really seriously. I think the reason that conservatives are O.K. with him is both that he might agree with them on some issues and that even if he comes down on a different side, he knows he might be wrong. I can’t think of an American politician who has thought in that way, ever.”

Behavioralism and Foreign Policy

or: How We Learned to Stop Worrying and Love the Bomb. Daniel Kahneman and Jonathan Renshon have an interesting article in Foreign Policy Magazine applying behavioral theories to foreign policy. Their finding echoes Cass Sunstein's mortality salience theory (discussed on TBWJ last August). Kahneman and Renshon write:

In fact, when we constructed a list of the biases uncovered in 40 years of psychological research, we were startled by what we found: All the biases in our list favor hawks. These psychological impulses—only a few of which we discuss here—incline national leaders to exaggerate the evil intentions of adversaries, to misjudge how adversaries perceive them, to be overly sanguine when hostilities start, and overly reluctant to make necessary concessions in negotiations. In short, these biases have the effect of making wars more likely to begin and more difficult to end.

This is hardly a surprising finding to me, and, in fact, this is largely what we discussed back in August. Hawkish foreign policy theories seem to be far more politically attractive than they are meritorious. Kahneman and Renshon discuss a few examples in the article, but it would be interesting to see Renshon's book which goes into greater depth on the topic.

The "vision problem" discussed in the article strikes me as particularly troubling. The inability or unwillingness to try to understand (often coupled with scorn and derision directed towards those who try to understand) the context around the actions of others and to try to see how our own actions appear from other perspectives seems to underlay a great many of our foreign policy difficulties.

Libertarianism and Paternalism

It is clear to me that there is much involved in a system of torts. I do not claim that the many systematic and idiosyncratic determinations that must be made under such a system are easily made or have obvious outcomes. I acknowledge that the very existence of a system of legal protection requires a great deal of value-laden judgment. Of course the rights of both parties are at stake in a tort judgment. I only mentioned those of the victim because I was highlighting the injustice of that particular situation, where the tortfeasor seems secure in his rights.

As far as Nozick's ideas go, they do sound odd. I will say a thing or two based upon my limited understanding of them, let me know if I'm off the mark.

It seems very odd to suggest that a liberal state is the natural outcome of anarchy. I have often said that either anarchy does not exist or we are living in it right now. People are so accustomed to living under a large impersonal state that they are unaccustomed to think of what government fundamentally is. As I have said before, and as you are surely already aware, government is merely superiority of force. If gangsters have the run of a city and the official authorities are powerless to contradict their decrees, then the 'authorities' are no longer sovereign, and the gangsters are a government unto themselves. Advocates of anarchy, in suggesting the abolition of government, either fail to understand what, fundamentally, government is, or are making the absurd assertion that it is possible to do away with the physical inequality of parties and the resulting power differential. Anyplace where there are two people there is government. The point of this is that anarchy is either an insubstantial philosophical construct or it is universal. Assuming the former, Nozick's assertion is merely a theoretical exercise; assuming the latter, Nozick's assertion is disproved by the repeated evidence of history. Why on earth would power groups, in the absence of formal government, restrict themselves to selling their protection, when they could quite easily force defenseless parties into a state of clientage and then extract whatever portion of the client's production they desired? They wouldn't. The evidence of history shows quite clearly that they haven't. As for such power groups being rights protecting… lol. There is certainly no guarantee that governments will be good.

As far as using defaults in existing programs. I'm all for it. I may doubt that a program is the most effective way to achieve the ends aimed at, but so long as we're going to do it we ought to do it as well as we know how in order to minimize the loss we incur by not following the optimal path. I do think that, in the context of the programs he mentioned, Sunstein's defaults would cause them to realize their ends more effectively. If you sell defaults as a way of making intervention more effective I won't argue. It is only when they are sold as a way of making intervention not intervention that I object.

When I said that "[determining a rational set of defaults] through the auspices of modern democratic government virtually guarantees that we will botch the process", I was speaking in very broad terms. I was talking about culture as a default. It is definitely the government's role to create defaults within the proper sphere of government. I am only talking about government setting defaults in private decision making. When it does this, I call it 'intervention', and I think it a mistake.

Your next point is very important: "a state will always be subject to pressures (of varying intensities) to do non-libertarian things. The state will always have the power to do those things; it is inherent in being a state. That power cannot be ignored, and there is no structural way to make it go away". Absolutely (my discussion of the constitution was not suggesting that a constitution could protect an ideal of government; I was just noting that the idea of defaults provides an interesting insight into why constitutions have any effect at all). One might say that good government is not a state of law and institutional organization, but rather a state of culture. No set of laws can cause a culturally destitute people to govern themselves well and no rule can be so detrimental as to prevent a culturally rich people from doing so. This is why I have lost interest in practical politics. What is the point of struggling for changes in laws when what really matters in not the virtues of government but the virtues of the people? This idea is highlighted in the ridiculous programs of 'democratization'. There are groups of people who are culturally democratic, and with such groups no power can hold them back from democracy. There are other groups who lack the cultural prerequisites for democracy and who will not become properly democratic no matter how hard you shove the institutions of democracy down their throats. This goes back to the recognition that government is power. We tend to confuse government with institutions, but if the institutions do not have the support of the people they do not have power and thus have nothing to do with government.

That idea is at the heart of my political philosophy. Good government is the product of a strong culture. It is a recursive model of societal improvement:

The ancients who wished to illustrate illustrious virtue throughout the kingdom, first ordered well their own states. Wishing to order well their states, they first regulated their families. Wishing to regulate their families, they first cultivated their persons. Wishing to cultivate their persons, they first rectified their hearts. Wishing to rectify their hearts, they first sought to be sincere in their thoughts. Wishing to be sincere in their thoughts, they first extended to the utmost their knowledge. Such extension of knowledge lay in the investigation of things.

Things being investigated, knowledge became complete. Their knowledge being complete, their thoughts were sincere. Their thoughts being sincere, their hearts were then rectified. Their hearts being rectified, their persons were cultivated. Their persons being cultivated, their families were regulated. Their families being regulated, their states were rightly governed. Their states being rightly governed, the whole kingdom was made tranquil and happy.

Confucius, The Great Learning

This is why my own investigations focus not on how to impose change on people externally but rather on what culture is and how it is transmitted. This, I think, is the road to improvement. If we can understand why some groups of people spontaneously generate wealth, creativity, and good governance, while others seem trapped in a state of degradation, then we might actively promote the welfare of mankind.

Finally, I do not agree that such policies as redistributive taxation and financial regulation reduce people's clamoring for more intervention. In fact I think such policies lead to more regulation. I believe that these policies result in outcomes that are the opposite of their intended aims. So if redistributive taxation makes people poorer and financial regulation makes markets more dangerous, then obviously you enter into an unstable feedback loop. One might call it a slippery slope. The more you intervene, the worse the problem becomes, and the more people demand intervention. I think this sums up the story of twentieth century governance nicely. Take the war on drugs as an example. The more effort they put into fighting the drug trade the more valuable drugs become. The more valuable drugs become, the stronger become those who traffic in drugs and the more difficult it becomes to stop them. So the harder you fight the problem the more virulent it becomes (and the harder you try to fight it, ad infinitum). An argument that supplements this perfectly sufficient point is that interventionist concessions create a norm. Interventions give people a sense of entitlement and this begets greater expectations of future paternalism.

A Response on Libertarian Paternalism

First off, I have to admit to not watching the video, although I believe I listened to an audio file of the same lecture (or a similar one by Sunstein) some time ago. Henry's post hits pretty close to some stuff my political theory course has been covering (particularly Robert Nozick's Anarchy, State, and Utopia), and that I discussed briefly with V recently (hopefully he'll chime in). I'm going to respond in chunks, hopefully it won't fragment the discussion too badly.

In the case of the car accident loss being left where it fell, the government is clearly failing to protect the rights of the victim. The goal of the government (under the aforementioned philosophy) is to secure individual's rights to life, liberty, and property. It would be ludicrous to suppose that this could be accomplished without torts (or likewise without the use of police power to try to prevent wrongful conduct)

Even accepting that a tort system is a necessity, this still leaves a huge range of determinations to be made with respect to process and defaults. Default legal burdens of proof and persuasion, burden-shifting rules, rules of evidence and courtroom procedures, etc. And to suggest that only the victim's rights are implicated neglects the fact that the tortfeasor's property rights are equally implicated. A faulty or unfair process could easily result in an unjust invasion of his rights. Protecting everyone's rights is a complicated business, packed with value-laden judgments.

In fact, one of my (many) objection's to Nozick's theory is that he imagines there will be numerous regimes of justice developed by individuals and associations in the state of nature, and he is indifferent to which one prevails (which would occur through economic competition of the associations). Any rights-protecting regime is apparently as good as any other in his view. But process can be slanted heavily to favor particular groups and actions, and it seems to me fairly important that there be a conscious and rational effort to create the "best" system, rather than the one most appealing to those with the greatest economic power.

I sincerely believe that the principle is merely a backdoor approach to regulation, and that his use of the word libertarianism is a usurpation of the term (this is the slippery-slope argument that Sunstein says is silly). Many of his examples involve at least some components which are involuntary and do not allow for choice. My second point along this line is a much more interesting one. Can such policies really be implemented (meaningfully) without imposing upon the liberty of the parties involved?

Sunstein's argument is fairly limited in this regard. I don't think he wants to get into the argument about whether or not programs like the 401k program should exist, but rather given that it already does exist wouldn't it be smarter to set the defaults in a manner that will produce the socially optimal result? We can get into the topic of what optimality means (and I will below), but let's assume Congress created the 401k program for some purpose and that purpose can be furthered by adjusting the default as Sunstein suggests. It would be a paternalistic change to an existing regime that creates no additional burden with respect to interfering in anyone's rights and that produces a better outcome. That seems fairly unobjectionable.

So it makes sense that we would be better off providing people with a rationally determined set of defaults to prevent their credulity mechanism from accepting a bunch of random crap. But this is harder than it sounds. I mean the 'determining a rational set of defaults' part. It can be done, but it requires a great deal of thoughtfulness, trepidation, and investigation. From my point of view, doing so through the auspices of modern democratic government virtually guarantees that we will botch the process.

Modern American government warrants a healthy dose of cynicism, but this is more like nihilism. Our institutional system is a bit of mess, and in my view needs some significant reform. But that stands entirely aside from the discussion of libertarianism as far as I can tell. Even the classic night watchman government requires a structure of governance. And if that system of governance sucks, you kiss your night watchman government goodbye in short order.

This, in fact, has always been my biggest objection to libertarian theory. I simply cannot see how a libertarian government could ever remain so for any appreciable length of time. The initial structure of the government will not bind it in libertarian form, even if you had a constitution without amendment procedures. It was not a constitutional amendment that allowed the development of the administrative state in the US, but judicial interpretation. And it wasn't just uppity judges responsible for that (although I'm not sure it would be significant to my argument even if it were), but intense political pressure placed on them by political branches motivated by quite serious concerns about social stability and unrest (and rising socialist sentiment). Whether it's a Great Depression and populist outrage or rent-seeking businesses and other economically powerful interests, a state will always be subject to pressures (of varying intensities) to do non-libertarian things. The state will always have the power to do those things; it is inherent in being a state. That power cannot be ignored, and there is no structural way to make it go away. It just sits there begging to be used.

I have a strong suspicion that some of the policies necessary to keep those pressures at bay (to the greatest degree possible) are themselves non-libertarian (e.g. some level of redistributive tax policy and regulation political speech financing, etc.). In the end, I tend to believe that our rights (which may or may not be limited only to life, liberty, and property) are likely best protected by a state that overtly recognizes the threat of instability and subversion of state power and is structured to best address that threat, even if that structure is not a strictly libertarian one. The state may need to be more powerful and far reaching than a night watchman state in order to be a stable, free-standing system. What good is the night watchman if it ends up being overthrown by communists or turning into a plutocracy?

Defaults and "Libertarian Paternalism"

I just watched a lecture by Cass Sunstein titled 'Libertarian Paternalism is Not an Oxymoron'. I'm not so sure. It seems to me that there is something important in the idea of libertarianism that is anti-meddling. It also seems that there is something fishy about Cass's idea of Libertarian Paternalism.

Sunstein says that there must be some default in any government decision. I guess that's true, but he reads a lot more into this than I think is warranted. First he mentions the notion that a no fault law regarding an auto accident is not an instance of government non-intervention, but rather an instance of the government granting privilege. The driver who caused the accident is not forced to compensate the innocent driver, yet the innocent driver is restrained from demanding compensation on his own. Sunstein later compares this to the presumption that an employer can fire an employee when and as they wish unless the specific employment contract states otherwise. He specifically says that this is not an instance of government non-intervention, but rather an entitlement granted to the employer by the government. Since what here appears to be non-action by the government is really a form of pro-business action, the question of whether or not the government should intervene is nonsensical. It is a 'mystification', as Sunstein notes in the Q&A. Since inaction is really a form of covert intervention the question of whether or not to intervene is trivial. We can only argue how we ought to intervene.

This seems to advocate a point of view that I find abhorrent. It suggests that life, liberty, and property are not fundamental rights to be protected but privileges to be granted at the pleasure of government. I would much prefer a philosophy of government in which the fundamental goal of governance is to secure these rights as firmly as possible. Under this assumption there is a default response to each of the situations mentioned in that last paragraph which is obvious and, I think, optimal. In the case of the car accident loss being left where it fell, the government is clearly failing to protect the rights of the victim. The goal of the government (under the aforementioned philosophy) is to secure individual's rights to life, liberty, and property. It would be ludicrous to suppose that this could be accomplished without torts (or likewise without the use of police power to try to prevent wrongful conduct). But in the latter case (that of job security), it is clearly in the interest of the liberty rights of both parties (and very likely the property right of the employer) that they be allowed to structure their contract as they see fit. Within the bounds of this minimalist framework we can do away with the absurd (or so it seems to me) nullification of the concept of non-intervention. Non-intervention would be to adhere to the principle of maximizing individual enjoyment of the rights to life, liberty, and property.

Rather than carry on in this line I will discuss the obvious objection to my discussion thus far. Sunstein is not proposing that we remove people's contract rights, but rather that we impose default contract structures that can then be negotiated away from. First I will say that this is at times quite fuzzy (e.g. the job security argument i.e. I thought that defaults weren't entitlements) in his expression. I sincerely believe that the principle is merely a backdoor approach to regulation, and that his use of the word libertarianism is a usurpation of the term (this is the slippery-slope argument that Sunstein says is silly). Many of his examples involve at least some components which are involuntary and do not allow for choice. My second point along this line is a much more interesting one. Can such policies really be implemented (meaningfully) without imposing upon the liberty of the parties involved? What if I own a business that has never had any sort of structured savings plan? If the government mandates that employees be defaulted into a certain sort of plan, would I not be obligated to set up such a plan? If not, is the program really being meaningfully implemented? Or, say that the government requires that the default employment contract include a provision supplying job security. What does this mean? Either the employer's liberty is unaffected, meaning that they have just as much right to opt out of the default as the employee does, or, only the employee has this right (i.e. the employee has the right to demand a contract with job security) and the 'default' infringes upon rights the employer previously enjoyed. If the employer can just opt out of the default, then nothing is changed and the default is not meaningful.

I also think that Cass glosses over the argument that the 'science' of what makes a good decision is controversial. The sciences (mostly social sciences ) from which these recommendations come, tend to be consensus sciences in which group think is common and people with an agenda can easily push the herd toward a predetermined position. Sunstein thinks that it will be easy to tell when personal interests are involved or when the science is fuzzy. I doubt this.

I don't think that the underlying idea of defaults is bad. There is no doubt that people do tend to stick with defaults. I think that the phenomenon originates in the inherent credulity of cultural animals. The evolution of culture is, or rather was during the course of human evolution (i.e. several thousand years ago and earlier), an ongoing numerical optimization (by randomized search) of a highly chaotic system with regard to the contents of behavioral instruction. The powers of this computational process dwarf those of the human mind. So it would be shocking if the human mind did not possess mechanisms to keep it from rejecting the output of that process: received culture (i.e. defaults). It is also perfectly reasonable to suggest that, given that we no longer live in a culture shaped by the evolutionary process, these mechanisms are defunct. So it makes sense that we would be better off providing people with a rationally determined set of defaults to prevent their credulity mechanism from accepting a bunch of random crap. But this is harder than it sounds. I mean the 'determining a rational set of defaults' part. It can be done, but it requires a great deal of thoughtfulness, trepidation, and investigation. From my point of view, doing so through the auspices of modern democratic government virtually guarantees that we will botch the process.

I think a great example of rational default setting is the creation and adoption of the U.S. Constitution. It's hard to figure out what it is that makes a Constitution distinct from the body of ordinary law if it contains a provision for its own amendment. The real distinction of the Constitution is that it is the supreme default of the land. It has all of the power of social proof behind it. I have said before that I think it is very much a rationally conceived document. So it's a rational default. The tragedy is what the Supreme Court has done to the constitution. They have dismembered our glorious default. It is far easier for a small group of highly educated individuals to overcome their preference for the default than for a great big congress and a huge unruly populace to do the same. So whenever a significant proportion of the population want to change the Constitution, it almost always ends up being easier to have the court skew its interpretation than to get congress to change the actual wording. This path of least resistance is the weakness that undermines the constitutional fortress. The justices have been smart enough to overcome the default but not wise enough to understand why they shouldn't.

More On Security Narratives

First a little housekeeping. As I'm sure you've noticed, the blog looks a little different. I've had several requests for a newer look or more readable fonts, so I thought it was about time for a makeover. Henry requested dark fonts on light background, which I didn't do simply because I liked the look of this template. I certainly could go to that format if it is preferred, let me know what you think. Also I modified this template to widen the text space because it seemed awfully narrow and necessitated a lot of scrolling down to read anything. I, however, have a widescreen laptop, so I'm not sure if this will cause problems on standard monitors. Please let me know if any of you are forced to have a side-scroll bar and I can narrow it back down a bit.

On to the topic. Henry and Veritas both had excellent replies to my initial post on this, so I'd like to comment on those, and on the Sunstein blog post V mentioned.

Henry's comments reflected his usual deep pessimism towards the ability of the public to maturely deal with difficult topics combined with a remarkable optimism over the ability to essentially reprogram the public through a more enlightened educational regime. I share much of his skepticism on the former issue, but, while I am guardedly optimistic on the effect of his planned educational makeover, I am also highly pessimistic over the prospects for the implementation of such a regime. As such, I must ask what more pragmatic near-term steps might be available to us. Henry's forecast in that case is fairly bleak, and I don't think he's wrong.

In recognizing the contemporary political strength of the neocon approach, as we both do, we are propelled into the world of paternalism. This is a dangerous place to be, as Henry also acknowledges. It is relatively easy to see when our government is being stupid (particularly when it is monumentally so), but it is nonetheless difficult for an individual or group to justify appointing itself as the overseer of the public good, to maintain its power through deception or manipulation, to exercise it for the good of all. That sounds a lot like tyranny to me. But if tyranny wins elections, what then for democracy?

The upside is I think good narratives sell. We should all recognize by now the immense power of a good story. While it is unfortunate that it doesn't appear to make a big difference whether the story is true, or indeed even coherent, there is no reason why it couldn't be coherent and true. So I think the duty of a committed democrat (small d) in this era is to find ways couch truth and wise policy into a convincing narrative.

The obvious question then is to what degree complexity inherent in truth and good policy can be packaged in a narrative, and, failing that, to what extent it can be boiled away for the sake of storytelling while maintaining fidelity to a democratic ideal. Is it enough to believe in the big picture from which you've constructed your simple myth? Is it possible to avoid the pitfalls of paternalism while telling the public less than the full (tedious) story?

Then, of course, there is still the difficulty of V's comments on Sunstein's mortality salience. While I imagine the issue encompasses a broad sweep of irrationalities of which MS is only a subset, it's a good enough proxy for this discussion. This is, sadly, where the neocons truly shine. Not only have they recognized and embraced the need for paternalism to facilitate the implementation of complex policy, and the need for a simple narrative to sell their paternalism, they have crafted a narrative that appeals to deep emotional needs and responses within the electorate. They take our irrationalities and amplify them back to us. They only needed a violent conflict to tap those emotions and have now created one that will last decades.

As I mentioned in my initial post I am increasingly skeptical about all of this. V asked me in a recent conversation whether I believe we will see an American city nuked in our lifetimes, something he believes (correct me if I'm wrong) will happen. I replied that it is still avoidable. I don't think it will happen in the immediate future, nor do I think events have spun so far out of control that they cannot be reconciled before it's too late. But without any doubt the clock is ticking. And it will take a complete repudiation of everything the neocons have done and everything they believe to avoid a catastrophic global conflict. As much as people are growing frustrated with them, I'm not sure I see that happening. I doubt that we have time to just let things sort themselves out. These are difficult questions and difficult issues, but we need answers sooner rather than later. This country is in dire need leadership. No doubt there are great leaders here, it is only unfortunate that our political system does such a poor job of selecting for them...

Analyzing Alito

In the Washington Post, Cass Sunstein provides a measured look at Alito's appellate record. I have no doubt that we have a major political battle at hand, but Democrats will face a tough challenge in that Alito's record does not look to be any more conservative than Scalia's, and, by Sunstein's analysis, it might be less so. How would a filibuster be justified here when Scalia was confirmed 98-0? There will likely have to be arguments external to the judge's personal record, in reference to the overall balance of the Court or some such thing. This may take the form of arguments that Alito is not just taking any seat on the Court, but he is replacing O'Connor, a relative moderate, in whose mold the replacement should be cast. I've seen this argument implied in several places already, and I'm not sure it makes much sense. It is difficult to find historical or policy justifications for the idea that the Court needs to adhere to some particular partisan structure or another. In general I think this will be a tough fight for the opposition. Their best approach will probably be to tie this nomination as closely as possible to the White House and try to make the confirmation into a referendum on George Bush to capitalize on his falling popularity.

Update: On Alito-Scalia comparisons, Robert Gordon of the Center for American Progress (a liber think-tank) makes the case on Slate that Alito is more extreme than Scalia.

Update (11/02): For some balance, here a CSM story suggests that Alito is not a hardliner on abortion.

Yet Another Update (11/03): I had to add a link to this rebuttal to the CSM column UVA's own Richard Schragger.

Spoiling For A Fight

So John Roberts is the nominee, and now the circus begins. I don't know as much about the man as I'd like (although I saw him speak here a few months ago and was very impressed), but I'm disappointed by the knee-jerk reactions of liberal groups. The Kossacks are predictably upset, MoveOn has already started a mail-in campaign to reject him. I got an email for Human Rights Campaign to tell me that Roberts' nomination puts our rights in "grave danger." Much of the criticism apparently focuses on things Roberts did as an attorney in private practice and in the Solicitor General's office. I'm pretty sure Deputy Solicitor Generals don't make policy, and it seems to me that I once knew an attorney who defended a large corporation in a mass toxic tort case, and I'm pretty sure he wasn't a corporate shill.

The question that keeps coming to me is: who would you rather have? Who do these people expect will be nominated if Roberts is rejected? Roberts is obviously a very smart and talented man, and he doesn't strike me as an ideologue. Yes, he is a conservative, but this is a Republican administration. Was anyone expecting a liberal? Is this just a fight for the sake of fighting?

I have been very excited by the rise of a populist liberal movement on the internet, and to some extent I still am. But lately I'm beginning to wonder if it is possible for a populist movement to be sustained without devolving into partisan extremism. I can hardly read Kos anymore without wanting to throw things at my computer. It seems everything is a conspiracy, and everyone is out to get them. I don't begrudge far-left die-hards their right to have an online community, but is there any liberal community left that isn't dedicated to this level of pointless partisan bickering? Maybe there's one out there that I just haven't discovered yet. But it seems that the liberal populist movement is increasingly mirroring the conservative populist movement, and that both seem to be subject to a strong drift towards partisan extremism. It may be that this is an inevitable result of Sunstinian group-reinforcement.

I guess I should note that I haven't gone establishment. I'm still as anti-establishment as the next guy. But my problem with the establishment has never been that it isn't liberal enough; it's that it's too fake, too staged, too deeply engaged in politicking without enough consideration for the policy that is supposed to result from politics. It seems to me that this is exactly the problem that comes from the knee-jerk response against John Roberts. I don't see any consideration of what comes from winning (i.e. how would the next nominee be better than Roberts), there's just a strong desire to beat the other side. It's not a results-based response, it's purely political. It signals an approach that will never be interested compromise or in building common ground across political boundaries. That's disappointing. It's important to fight when there's need for it (say, plans for an ill-advised war), but that doesn't mean you have to fight all the time about everything.

A Sunstein Teaser

While Larry Lessig is out on vacation, he's left Cass Sunstein in charge of his blog (until the beginning of next week). Sunstein has been discussing his follow-up to Republic.com, looking at aggregation of information on the Internet in various forms (wikis, open source, etc.) and contrasting these forms of aggregation with Hayek's market pricing theories. He has also discussed the Chicago Judges Project and The Wisdom of Crowds. I look forward to seeing the rest of his posts.

Paging Cass Sunstein

Time Magazine has a column from James Pniewozik discussing the frustration and animosity of Americans, each of whom have an entire portfolio of news sources telling them they're right about everything, but who have to live in reality where there are unfortunately folks who don't agree with them, some of whom occupy positions of considerable power...

Update on the Alleged Misappropriation of $700M

The Center for American Progress has done some searching and its preliminary findings only raise more questions--but they are certainly questions for which the public (and Congress) should demand an explanation.

Apparently the money must have come either from the immediate post-9/11 funds (made available by HR 2888, passed 18 September 2001 and archived here) or from the emergency funds that Congress passed on 2 August 2002 (H.R. 4775, passed 2 August 2002). I have excerpted the relevant portion (the part dicussing military funding) from HR 4775 because the whole Act is quite long.

Scenario 1:
If Bush got the $700M from the emergency funds that Congress made immediately available after 9/11 (HR 2888), (1) the President was required to "consult with the chairmen and ranking minority members of the Committees on Appropriations prior to the transfer of these funds," and (2) the Office of Management and Budget was required to submit quarterly reports on the use of those funds.

As for the first requirement, Senator Robert Byrd--the Chairman of the Senate Appropriations Committee at the time--recently stated:
To the best of my knowledge, and I was Chairman of the Senate Appropriations Committee at that time, the Bush White House provided no consultations as required by law about its use of funds for preparation for a war in Iraq in advance of those funds being spent. There is nothing contained in the Administration's quarterly reports indicating that projects were being funded to prepare for war with Iraq.

As far as those quarterly reports to Congress (requirement #2), the full reports covering the relevant timeframe can be found here (9 August 2002) and here (17 October 2002) [Whitehouse]. But rather than making you go through the whole document I have excerpted the pertinent page from each document (the one discussing military spending), which you can view here and here.

As the reports demonstrate, Bush didn't offer any specifics whatsoever. Instead, he grouped the military spending into broad categories like "Increased Situational Awareness" and "Improved Command and Control." Nowhere do the reports mention Iraq. Remember what the Constitution (Article I, Sec. 9, cl.7) requires: that "a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time." I don't know what these reports typically look like, but it hardly seems that the reports the OMB provided pass constitutional muster.

Scenario 2:
If Bush spent the money from the second appropriation of funds, well, an immediate problem presents itself--Woodward claims that the $700M was authorized to be spent in preparing for the Iraq invasion in July 2002, but that money was not even available until August of that year.

But even more problematic, the Act specifically provides:
That during the current fiscal year, upon a determination by the Secretary of Defense that funds previously made available to the ??Defense Emergency Response Fund?? are required to meet other essential operational or readiness requirements of the military services, the Secretary may transfer up to $275,000,000 of funds so required to the appropriate funds or appropriations of the Department of Defense, 15 days after notification to the congressional defense committees.

In other words, the amount available to the Department of Defense was limited to $275M (not $700M) and that money could only be transfered 15 days after some members of Congress were notified. Senator Byrd serves on the Senate Armed Services Committee, and never heard a thing about military spending for Iraq at that time.

So far, the news coverage on this issue has been sparse. The LA Times quotes a few Congressional representatives in this article--and they are obviously not too happy about the development. Professor Cass Sunstein, who I respect a great deal, gave his two cents on the matter here [Salon.com]. He states:
With the words 'promoting national security,'[the language from HR 2888] Congress cannot plausibly have meant to give the president a blank check to prepare for hostilities wherever he chooses.

What does the Bush administration have to say about all this? According to this Fox News story, General Tommy Franks sent the Pentagon a $700M "request for improvements" (whatever that means), but the Pentagon reviewed the request and funded only $178M, which went to "fuel and rations, improvements to military communications networks and improvements to Franks' headquarters in Florida." The DOD's full statement to the press can be found here. I don't understand why General Franks would be submitting budget requests to the Pentagon instead of Congress, like it's supposed to work, and it certainly doesn't fit the Pentagon's M.O. to turn down an opportunity to spend more money.

The official response, from Scott McClellan on Tuesday:
I think the Department of Defense briefed on that yesterday, and pointed out that that simply was not the case. Congress was kept informed and the funding, the emergency funding from the -- the emergency funding gave the Pentagon broad discretion in how funds were used. And they also pointed out that the funding specifically for Iraq came after the resolution that Congress passed. And Congress was kept fully informed of the funding.

It is a possibility that Woodward simply got bad information. But even if that were so, we are certainly entitled to a better explanation than what has been provided so far.

Problems With Media Diversity

This Christian Science Monitor column by Dante Chinni reads like a page out of Sunstein's Republic.com. I have to say, I'm not real excited about the idea of Air America. Perhaps it's necessary to have a bunch of rabid, misinformed liberals running around to counter all of the rabid, misinformed conservatives... but it's a far from ideal solution.

Media Reform Thoughts

I agree with Barry and Dave that a publicly funded media source is absolutely necessary in the current climate. It should be better funded (perhaps like the BBC as Dave suggests). As Robert McChesney points out and echoing Cass Sunstein in Republic.com, there seems to be a greater and greater tendency for the big media companies to simply deliver what the consumers want instead of challenging them with truthful, thorough, and wide reporting of news events. We have seen the trends with both the explosion of Fox News as well as the example in the Radio industry, where many consumers have been sucked in by Clear Channel cookie cutter programs. As Joe points out in "What's At Stake" (10-31-03), these trends do not bode well for our democracy. An ill-informed public is perhaps the worst things that could happen to our democracy/republic, and this issue needs to be addressed.

How to address it has been a difficult issue for me. One can certainly place more restrictions on commerical media ownership and practices. One can also enhance support for public, independent media. Yet the core problem seems to remain: the laziness of the American citizen. Why do so many individuals fail to seek out multiple news sources and different viewpoints? What has happened to the discussion of substantive issues that affect our democracy and nation such as media reform, campaign reform, international trade and foreign policy? Perhaps it is the citizen that needs to be held more accountable instead of blaming big media or the government, as is so easy to do. As is pointed out in "Nationalism In Schools" (11-4-03), education may the place to start, and never too early.