Wednesday, September 21, 2016

Beyond the failed Presidential SCOTUS strategy

For over half a century, conservatives have struggled to rein in the Supreme Court.  In the 1960s the court crippled the criminal justice system, leading to the greatest spike of crime in American history.  In the 1970s, they imposed irreversible abortion legalization nationwide, polarizing the nation's politics to this day.  Throughout the past couple of decades, the Court has repeatedly continued to sweep aside incremental policy arrangements in favor of dogmatic rights and irreversible social experiments.  The expectation that courts will pick apart legislative compromises has scared Congress away from making them.

Following the appointment of Clarence Thomas in 1991, 8 out of 9 Supreme Court Justices had been appointed by Republican Presidents.  Yet, rather than rolling back prior encroachments, the past two decades have seen the tides of judicial liberalism wash further forward.

Quite simply, the conservative strategy of reshaping SCOTUS through Presidential appointments has failed.  There is very good reason to believe it would be just as unsuccessful if Trump were elected President this year.

People overestimate the interest of the President in nominating a candidate preferred by their party's base.  Presidents care primarily about their own personal reputation for the sake of popularity with the electorate as a whole.  This is why Dwight Eisenhower nominated the liberal Earl Warren, why Richard Nixon appointed five members to the court without entrenching a conservative majority, and why Donald Trump could be expected to do likewise.  It is the path of least resistance for a President who has no deep ideological attachment to the judicial cause.

Furthermore, if the President is more desperate than the Senate to fill a vacancy on the Court, the Senate can insist that the President nominate someone ideologically congenial to them.  Hence Justices Souter, Kennedy, and Stevens were appointed nominally under Republican Presidents, but in practice as the result of Democratic Senate majorities.  Not having a personal reputation at stake, a Senate majority party can be expected to hold firm for the sake of ideological principle where a President cannot.  In fact, it may be easier for the a Senate party to take a stand on principle when the President is a member of the other party.

But, the problem with judicial activism is a deeper one than SCOTUS membership.  On the surface, it has the lure of an easy way to bypass political tangles and solve social problems.  But, in reality, while Courts can easily launch half-baked forays, the end-run around the process of legislative consultation leaves their projects without deep public support and woefully ill-equipped to marshal the resources needed to effectively follow through.  Like an army equipped with artillery but no infantry, they may be able to destroy institutions, but lack the capacity to replace them.  This was made clear following Brown v. Board of Education, where little school desegregation occurred in practice until Congress and the executive branch put real resources behind the initiative.

While liberals regularly voice hopes that Courts might enact their dream social reforms through swiping decrees, some conservatives entertain similar delusions that the New Deal regulatory state could be rolled back by judicial fiat.

Alas, there is no easy alternative to the hard work of winning elections, building coalitions, and designing effective compromises, necessary to reform the regulatory and entitlement programs on which every sector of the economy and society relies to some extent.  Declare the Medicare program unconstitutional, and the problem of providing $650bn of healthcare needed by those out of work for reason of disability and old age remains.

The lure of the permanent victory through SCOTUS decree is fundamentally incompatible with democracy.  One should work to check the power of the Courts to do ill -- not to try to capture absolute power for one party in the belief that it can effectively solve complex social problems with delicate trade-offs through sweeping pronouncements.

The United States Constitution was designed on the premise that those in power naturally seek to extend their authority, and that each branch of government must be given the "necessary constitutional means and personal motives to resist encroachments of the others". The Supreme Court, being a panel of political-appointees, should be a part of the system of checks and balances, not above it.  It is foolish to expect a change in the membership to cause the Supreme Court to yield authority that it has usurped from elected officials.  Why should we expect Justices to give up their own power at the very moment that their allies have assumed a majority?

It should rather be up to Congress to take power back from the Supreme Court.  Article III of the Constitution specifies: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."  The membership and size of these judicial authorities are also left to Congress.

During the first century of the American republic, Congress repeatedly altered the size of the Court, keeping it on a short leash.  As with the unelected 19th Century British House of Lords, it was clear that the power of Justices would be diluted by the addition of new members, should they flagrantly overstep their authority.  Like all the other branches of government, they were subject to checks and balances.  Court-packing was, of course, difficult -- as it is not easy to get legislation to seat additional Justices approved by House, Senate, and President -- but it was an effective gentle restraint. In practice this forced those seeking to enact projects of social reform to proceed through the longer path of securing broad public approval through elected legislatures, rather than attempting immediate nationwide revolution by legal decree.

Court-packing fell into disrepute when FDR sought to employ it to aggrandize his own power and impose his own agenda.  But he was frustrated by the congressional process working as intended.  Defensive court-packing, being essential to the balance of the constitution, should in no way be stigmatized.  Congress should therefore make it clear that members of the Supreme Court will find their personal power diluted whenever the institution oversteps its bounds.  This may erode the exulted status of the Supreme Court in society -- and that would be a good thing.

In more ordinary times, Senators should avoid being bullied into seating nominees made by the other party's President.  The past year should reassure those concerned that the sky would fall if SCOTUS went long without 9 Justices.  There is no reason why Senators shouldn't be able to insist that a seat be left open indefinitely unless a compromise replacement be seated.  Nor is there any reason why a nominee from each party couldn't be seated together as a compromise to preserve the balance of the court.  A court with an even number of justices might occasion circuit splits -- but, more likely it would cause Justices to behave less intransigently, and find some basis for agreement.  After all, as much as Supreme Court Justices might disagree with each other, they wouldn't want to let other Courts have the final say!

Monday, August 29, 2016

Regulating spiritual vs temporal affairs

"There is no distinction between things spiritual and things temporal. The two are so intimately connected by the Author of our nature that no human power can separate the one from the other. The subject of all government is man; but man is a spirit, and it is because he is a spirit that he is capable of government. A corpse cannot be governed, nor can it perform the most ordinary functions of life. There is a mental or spiritual element in sweeping a room or mending a pen. When we get to the higher functions of life, the distinction between spiritual and temporal becomes unmeaning. Take, for instance, the case of a war. War is always described as a temporal matter, the highest manifestation of the secular power; but surely there is nothing which makes greater demands upon all that is spiritual--upon courage, upon conscience, upon every moral faculty whatever. What, then, is the sense of the assertion that to go to battle is a secular act, and to go to prayers a spiritual act? Is there any subject in the world on which a man who really believed in prayer would pray with more intense earnestness than the question whether or not he should lend his influence to peace or to war? Is there any higher religious duty than that of manfully carrying on a just war and inflexibly opposing an unjust one? The only real ground for the distinction is the desire to protect particular religious bodies, especially the Roman Catholic Church, from inquiry. It is the bait which the priest holds out to the layman--“Let me alone, and I’ll let you alone. You shall have all that you really care for--noise, excitement, wealth, and power; leave the soul to me.” An honest man or nation will refuse the offer with disgust. The use of wealth and power and hard work is to educate the soul, and if that is to be privately drugged with narcotics by a representative of the “principle of authority” the rest matters very little."

(from "Carlier's Early History of the American States", review by James Fitzjames Stephen, in Saturday Review, 2 April 1864)

The case against moderation

"After all, the greatest pleasure in life is to have a fanatical enthusiasm about something. It may be the collection of pictures or of foreign postage stamps—the preaching of teetotalism or of ritualism; it matters comparatively little what is the hobby upon which a man should mount; but the possession of at least one hobby, if not of a complete stud of hobbies, is the first condition towards a thorough enjoyment of life. It is commonly said that chess is too severe an intellectual trial to be suitable as an amusement; and the argument is a very sound one against learning chess for those who cannot devote their time to it; but the intense attention which is willingly granted by a good chess player is the best proof of the powerful attractions of the occupation."
(from "The Life and Letters of Leslie Stephen", pp.48-49)

Tuesday, August 23, 2016

Thoughts on Robert Caro's "Power Broker"

When Richard Nixon resigned the Presidency and ascended into Marine One for the last time, he took a way of doing politics with him.  Americans had grown disgusted with the backroom deals and wire-pulling which characterized the post-war era, and fearful of an Imperial Presidency that had established itself.  The methods of that moment have received – and continue to receive – their richest portrayal in Robert Caro’s multi-volume series, The Years of Lyndon Johnson.  But, the vivid character of the man and the highly-charged partisan and ideological aspects of his career easily overwhelm the work as a focused assessment of pure politics.  Nonetheless, in Caro’s defense, it could be said that he had already written such a book, with his 1974 biography of Robert Moses. 

The story of Robert Moses is the story of the construction of massive public works in a densely populated urban area in the context of a modern liberal democracy.  The story of his career is an account of the political maneuvers undertaken by an unelected official to overcome a thicket of parochial and private interests for the sake of grand public designs. 

Across five decades, Robert Moses oversaw the planning, legislation, funding, and implementation for the construction of a vast array of public works including the entire system of highways, bridges, and tunnels connecting Long Island to the mainland of the United States, the vast majority of the metropolitan region’s parkland, the creation a half-dozen massive new beaches, the reclamation of New York City’s waterfront, the building of several hydro-electric dams, Shea Stadium, Lincoln Center, the United Nations headquarters, hundreds of public playgrounds, and new public housing for thousands of residents.

The case against Moses (where it is not a dispute about the merits of various projects) is the classic case for skepticism of centralized discretionary power, and of the costs incurred in its accumulation.  The argument in his defense is the case for putting public above private interests, and for public improvements against the tyranny of the status quo. 

The Power Broker by Robert Caro is an outstanding and gripping narrative of the career of Robert Moses, a lucid exposition of his methods of accumulating and wielding power, a reasonable picture of mid-twentieth century New York politics, and a melodramatic and often poorly reasoned discussion of urban policy. 

To put the strength of Caro’s political analysis in perspective, it is therefore best to begin with its flaws.  As a (highly successful) attempt to turn arcane bureaucratic wrangling and policy disputes into a bestselling book, dispassionate reasoning regularly takes a back seat to emotive exaggeration.  The brilliance of Moses’ early idealism is given a godly hue as pure as the darkness of his later supposed cynicism.  Characters enter as caricatures, and the routing of every mile of road is a battle of good versus evil.  Long Island landowners are in one chapter put-upon property-holders, and in the next grotesque oligarchic barons – so best to suit the grand morality play.  Nowhere is a policy choice portrayed as a fine judgment-call, and subject to uncertainty or compromise. 

This is a shame, for such bombast renders Caro’s judgments often imprudent and untrustworthy, and his discussion of policy presumptive and lopsided.  Moses is blamed for the insufficient supply and poor quality of housing in New York City and the inability of displaced families to find accommodation at the same price they previously enjoyed – yet 1162 pages pass without the slightest reference to the logic of rent control legislation.  Unpleasant insinuations of racism are made in Moses’ direction, and yet Caro goes on to complain that expressway construction leads to the decline of the Bronx, as Jewish families are replaced by “families from the other side of the park”. 

Moses is portrayed as insatiable in his lust for power, yet reluctant to extend his empire into mass-transit.  Suburban rail lines are described as subject to collapsing demand, yet also the focus of irrationally foregone opportunities.  Implicit in Caro’s jeremiad on the decline of Long Island Railroad, is almost a wish that if only a man of Robert Moses’ brilliance, power, and ruthlessness was a zealot for mass transit, then wonders would truly be possible.

Yet, with this attitude, Caro misses the key to the whole Robert Moses story: the man only accumulated such power because he was the only man who could consistently deliver what the public wanted. 

All other considerations derive from this basic point.  As an unelected official, Moses’ power had to constantly be fought for and justified at the margins, on the merits of each specific project.  Even at the supposed height of his power, Moses was unable to gain assent for the Brooklyn-Battery Bridge or even a small parking facility for Tavern-on-the-Green. 

Moses’ power was to a large extent contingent on policy subsystems being left to operate by themselves by the broader public realm.  He obviously devoted much attention and resources to ensuring that fundamental questions of the desirability of the power that he had accumulated was never a matter of open controversy, but he was also very much aware that discretion was only afforded to him out of an understanding that he had a peerless capacity for Getting Things Done.  While Caro intermittently acknowledges this point, this discipline was ever-present and acknowledged by all – not least by Moses, who imposed a phenomenal workload upon himself and his staff.  Moses’ innumerable threats to resign derived their strength from this popular mandate, and the potency of the threat was to a great degree contingent on the things that were to be Done being of significant value to the public – and to elected officials, who needed achievements (not just intentions) to proclaim. 

Although Caro portrays the decline of Moses’ power as the result of a extraordinary presence of countervailing power in the person of Nelson Rockefeller, it is probably more important to note just how easily and painlessly this fall from grace was achieved, once an elected official set his mind to achieving it.  John Lindsay’s attempt to quash the Triborough Bridge and Tunnel Authority, which Caro acknowledges involved remarkable ineptness on behalf of the Mayor, is portrayed as a result of Moses marshalling the resources of a hidden oligarchy to subvert the cause of democracy.  A more accurate characterization of the incident would be to suggest that Lindsay and his team were quite clueless as to the true value to the city of existing institutional arrangements, and that the legislature was easily persuaded by the unanimous agreement of the experts who had any knowledge of the situation whatsoever.

Of course, it is true that some of the value of existing institutional arrangements had been deliberately crafted by Moses to sustain a need for himself.  Just as Alexander Hamilton bound states to the new Union with debt, so Moses was able to bind a network of banks, corporations, and labor groups in support of Triborough.  Yet, it is also clear that such designs had been approved by elected authorities at every stage.  Indeed, the long-term autonomy and power of Triborough was of significant value to the public as a whole.  The bankers, who Caro at times portrays as puppets of Moses’ power, had good reason to entrust an independent authority with so much credit for highly profitable public works – and citizens of New York, though guaranteed contracts of an independent agency, were in turn able to (with very low risk, and hence interest rates) credibly commit to turning over some of the value that would be created for them. 

Similarly, while Caro is eager to suggest that Moses’ staying power enabled him to outlast elected officials, it also enabled him to be a reservoir for long-run trust.  Indeed, one of the reasons for his rapid downfall in old age, was the widespread recognition among interested parties that the post-Moses era was not far away, and that planning for this time had to occur sooner rather than later.  With this expectation and public opinion more strongly against him, Moses was not able to do much to forestall his loss of power.  Speaking of the 1964 World’s Fair, Caro suggested that “Moses appears to have seen the Fair as a gigantic gravy train on which he could ride back to power” and that the “World’s Fair gave Robert Moses a billion dollars to spend on power, and he got his money’s worth.”  Yet, while the snide remarks fit the story, they do not fit the facts: when his tenure at the Fair ended, Moses had far less power than when it had begun.

Nonetheless, while Caro’s wildest insinuations of Moses as a subverter of democracy are ill-founded, the more modest charge – that Moses construction plans were fully imbued with political calculations is clearly true.  Indeed, it is the ever-present considerations of democratic politics which makes Moses’ career a remarkably different enterprise to that of the more simply rationalistic, but politically far less involved Parisian urbanist, Baron Haussmann.  If the problem Moses faced was a multitude of stubborn rights-holders with their own private interests standing athwart his public designs, his weapons were democratic instruments – at every stage designed to mobilize the broader public to quash parochial interests.

Since his accountability to voters was indirect, he could not neglect their ultimate sovereignty. Yet, his methods were not conventional electoral devices, but owed much to the institutional situation with which he was located, the resources with which he was endowed, and the environment in which he was constrained. 

Not being constrained by the need to maintain a multi-issue electoral coalition or the need to keep a base enthused for fundraising, Moses had more flexibility, and hence was able to cast a wider net for popular support.  He could inveigh against Long Island barons one day to gain right-of-way for parkways, and wage war on leftists the next to remove obstacles to development on Manhattan – simultaneously reaping the benefits of right and left-of-center populism. 

The strength he gained from the bureaucratic arts, at which he was highly accomplished, also owed much to general popular appeal.  Indeed, his threats to elected officials could be said to depend upon a triangle of bureaucratic resources: the heat of information (the files of damaging facts he kept on associates, and the talking points he held on project proposals), the oxygen of publicity (his carefully cultivated relations with the media, and resources marshaled for public relations), and the fuel of public interest in his projects.  With these, each at his discretion, he was able to light a fire of public concern under the feet of elected officials who were minded to obstruct development.

With his ability to allow, block, or re-assign construction projects, Moses was able to orchestrate compliance from a vast network of political associates in support of his overall plans.  Although Caro does not say so explicitly, it is apparent that Moses’ objection to the “One Mile” diversion of the Cross-Bronx expressway was likely founded in such deals – without which the support of all officials possessing veto-powers would have been altogether impossible.  The assent needed to pass miles of highway through some of the most densely populated real estate in the western world could only be obtained by a man with an extraordinary knowledge of the legal, economic, and electoral sources of power, which motivated thousands of the nation’s savviest and best-connected political operators – and the ability to marshal them in support of his designs.  Moses’ persistent exasperation with critics who “don’t know what they’re talking about” likely stemmed from the highly delicate balance assembled from such an array of accumulated considerations.  His stubborn refusal to revise projects, once devised, seems to derive from the keen awareness that the carefully constructed web of political support for them could easily unravel.  Far from being evidence of his autocratic authority, his obstinacy was as much a product of his tireless coalition-building.

Although Moses’ ability to construct a power apparatus for his own pleasure has been exaggerated, he did possess one significant independent source of power – the revenues, available for use at his discretion, at the Triborough Bridge and Tunnel Authority. 

The functions of money in economics are classically defined as being a medium of exchange, a unit of account, and a store of value.  In the field of politics, relative to the direct bartering of the commodity of power, money similarly has certain critical advantages.  It is easily aggregable (it does not perish in accumulation), it is fungible (it can be leveraged on targets regardless of pre-existing ties), and its value is clearly recognizable.  Moreover, money also yields certain advantages unique to the realm of politics:  it is non-reciprocal in its effect (control of funds does not produce exposure in the way that an alliance or trading of favors would) and it solves a multiple principal problem (at least where there are no checks on appropriations procedures, as in the case of Moses).   

This advantage was heightened by circumstances.  City and state funds were under assault from all sides and felt the pinch of inflation, whereas Triborough’s funds grew steadily with traffic flows through its toll booths. Possessing control over such a potent weapon of power, Robert Moses was also assisted by the relative scarcity of discretionary resources available to his rivals and associates.  While he could get the most out of his money, legislators, state and city officials were constrained by a web of checks and balances, as well as entitlement obligations.  Instead of going cap-in-hand to elected officials for funds, it was they who would have to bear the burden of begging from him.

Yet, money alone does not yield power in a democracy.  It must be leveraged to move elected officials so that they not obstruct one’s designs.  Moses’ investments were largely of this sort – not campaign contributions aimed at promoting the rise of certain officeholders, but the carefully controlled disbursement of funds so as to direct their attention and efforts in a more amenable direction.  Moses spent money to create incentives for compliance with his designs and political momentum behind his plans.

At the same time, with his post as Construction Coordinator for New York, Moses held a choke-hold on the city’s alimentary canal of federal assistance.  This enabled him to impose take-it-or-leave-it offers upon officials and highly mobilized interest groups, hungry for funds, and to accumulate influence at all levels of government.  Yet, this important power was also highly conditional on the application of Moses’ unique ability to Get Things Done.  Indeed, it derived from the fact that his team at the Park Commission was the only one able to develop plans, on time, and to implement them swiftly.  Unions could be sure to benefit from patronage regardless of the source of funds, but Harry Van Arsdale’s support of Moses’s authority was to a large extent the product of his unique ability to win these supplementary contracts for the region.  Without widespread trust in his ability to deliver, the power for him to do so would not have been so widely supported.

Almost all of Moses’ projects would be categorized by political scientists as “non-incremental policymaking”.  For instance, the essence of bridge-building, from a political standpoint is that half-a-bridge is as useless as no bridge.  Only a fully complete bridge is of any value whatsoever, regardless of how many public funds have been spent up until that point.  This allows those in charge of construction to hold the public hostage to a certain extent, and to derive a significant degree of discretionary power in the process.  Robert Moses did this repeatedly – almost always being sure to lay foundations before full right-of-way (or even full funding) had been obtained. 

It was this and a multitude of other similar bureaucratic tactics that eventually soured much of the city on Moses, when given full exposure in its press.  Although he had traded on his popularity to keep his methods quiet, once his reputation was tarnished in a number of relatively minor incidents, elected officials were less keen to entrust him with authority, and his power gradually ebbed away. 

Yet, while his successors have doubtless avoided his level of controversy, they have also fallen far short in accomplishment.  America struggles to upgrade its crumbling infrastructure to keep up with a growing population, despite hundred-billion-dollar legislative appropriations for surface transportations, as major projects are stymied by interminable legal wrangling and battles with environmentalists, unions, and local communities.  While it may be easy to blame others for gridlock and inertia, a free society rightly affords people multiple opportunities to defend their private rights when there is no demonstrable popular enthusiasm to usurp them for the sake of the public interest.  Hence the indispensible role for leadership – to offer a vision that moves people, brings together those with widely-differing motives, and gives foot-draggers a reason to get on board. 

In the mid 1960s, Nelson Rockefeller decided against giving Robert Moses the responsibility for constructing a Long Island Sound Crossing.  Over forty years later, the project remains on the drawing board.

Tuesday, July 26, 2016

The New Nationalism and the Old

With Britain voting to exit the European Union, Donald Trump claiming the Republican nomination for President, and Marine Le Pen currently leading the first round polls for the French presidential election, it is clear that nationalism is back. In all these instances, the candidates are generally designated "right-wing" or "far right". They emphasize parochial needs rather than universal values, and have been embraced by those who scoff at the progressive spirit.

And yet, despite the online spectacle of the Alt-Right and self-identified "neo-reactionaries", the leaders of populist electoral nationalism have largely ignored their values. Donald Trump has swatted aside conservative orthodoxy on planned parenthood and posed as the defender of America's gay community, while his daughter lauded him as a champion of "equal pay for equal work". Brexit advocates appealed to the principle of democracy and defense of the NHS more than stressing Britain's constitutional traditions, while Marine Le Pen has repudiated many of her father's free-market principles to champion feminism, intervention in the economy, and a generous welfare state. Twentieth century nationalism may have been a creature of the right, but the new nationalism is remarkably secular, democratic, and egalitarian.

In this, it resembles nationalism in its original incarnation. Jean-Jacques Rousseau preached the collective sovereignty of the people in assertion of their rights against their rulers. In contrast to the intellectuals who sought the favor of courts and princes across Europe, he argued: "Distrust those cosmopolitans who search out remote duties in their books and neglect those that lie nearest. Such philosophers will love the Tartars to avoid loving their neighbour."

The french revolutionaries followed Rousseau's counsel to dethrone a King who had sought the assistance of his wife's Austrian royal family to wipe out the domestic constraints on his power. Nationalism was subsequently, and for most of the 19th century, a left-wing idea -- with national liberation movements rousing international enthusiasm, particularly in overthrowing multinational authorities such as the Habsburg Monarchy or Ottoman Empire.

The democratic revolutions and nationalist ideals that shook Europe in 1848 achieved their fruition through Woodrow Wilson's insistence on the principle of self-determination at Versailles in 1919.  As this left Austria-Hungary in ruin, a power vacuum around a still-united Germany resulted, with disastrous consequences. As the continent rebuilt in 1945, Germany was deliberately divided and shackled by the constraints of the European Union.

Seventy years later, the unaccountable multinational institutions of the EU are beginning to yield the same popular frustrations that those that struck Austria in 1848.  With cosmopolitan elites suspected of serving their own distinctive interests, nationalism is striking a populist cord.  As a result, it should be no surprise that political candidates seeking to exploit democratic and egalitarian sentiments end up promoting values closer to those of Mazzini than those of Metternich.

Friday, July 22, 2016

Trump, Conservatism, and the Supreme Court

Many reasonable conservatives will grant that Trump is not one of them.  They will grant that he has no interest in competitive markets, in restraining spending, in protecting the family, in leaving issues to the states, or defending religious liberty.  They may even admit that he is ill-informed, incompetent, and a serious threat to the system of alliances that has kept the western world at peace for the past 70 years.  And yet, they argue, the power of SCOTUS demands that they fall in line.

Anyone expecting Donald Trump to be the Republican President to achieve the overturn of Roe v Wade, after four of his predecessors (committed to the issue, where he is not) have tried and failed, must be counted as somewhat deluded.  As must any Republican who expects him to nominate Supreme Court justices who will institute tight limits on the power of the presidency and federal government.  Even if the Republican Party retains the Senate in November and he dutifully defers to Mitch McConnell's list of suggested nominees (don't laugh!), midterm elections will eventually give the Senate back to the Democrats.  If Trump doesn't cut a deal with Chuck Schumer to seat a pro-Planned Parenthood liberal before, he certainly will then.

And, if Trump is elected President, that means he will be the Republican nominee in 2020.  As a result, in the best case scenario it will be 2024 (if ever) before conservatives get a chance to put a solid choice of their own on the court.  A desperate haste to salvage a terrible deal this year will prevent conservatives from striking a good one from 2020.

With Hillary Clinton as President, the Democrats will very likely lose the majority of the Senate in 2018 if they win it back at all.  A Senate GOP dominated by conservatives, united in opposition to Hillary rather than subservient to Donald, is one that can be relied upon to take a firm stance on SCOTUS appointments (as it has done so this year).

Under divided government, Presidents hoping to change the composition of the Court must yield to the preferences of the Senate majority party if they wish a new justice to be seated.  This is how liberals achieved Souter, Stevens, and Kennedy -- nominally appointed by Republican presidents.  No additional justice need be appointed to the Supeme Court unless the majority of the Senate feels that the Court is improved as a result.  The Senate can hold firm to insist that a compromise pick be nominated.

Monday, July 18, 2016

The tragedy of Lord Acton

"If any work is ever really wasted in the world, it is that of the man who makes himself a sort of walking encyclopaedia, and then dies without having produced a single book. His knowledge perishes with him, and the facts which he has collected have to be reconquered by some successor, because he has never deigned to commit them to paper.

Every one of us has known such men—but perhaps I may be permitted to speak for a moment of the king of them all. I name him with infinite respect: he was in some ways a great man, and he might have been a great historian. He started to read history early, he was granted a long life, he had ample leisure, he was able to collect such a library of its kind as England had never before seen. And he died leaving as his life's achievement a lecture or two, and a number of reviews and short papers scattered about in the back numbers of more or less unobtainable periodicals, together with a scheme for a modern history which (though excellent in itself) has certainly not been carried out on the lines which he laid down.

This heart-breaking paucity of results from a man qualified to do great things seems to me to have proceeded mainly from the cardinal defect of the want of a definite clear-cut thesis. Lord Acton had a great book hovering before his mind: what it was I have never made out: his literary executor, Mr. John Morley, once told me that he fancied that its subject was the Growth of the Modern Idea of Liberty: but two or three alternative and equally vast titles have been suggested. Whatever it was, its compilation necessitated the accumulation of such a mass of detailed material that no single human brain could possibly deal with it. I went down into Shropshire to look at that famous library before it was removed to Cambridge: never was there such a pathetic sight of wasted labour.

The owner had read it all: there were shelves on shelves on every conceivable subject—Renaissance sorcery— the Fueros of Aragon—Scholastic Philosophy—the growth of the French Navy—American exploration— Church Councils—and many books were full of hundreds of cross-references in pencil, noting passages as bearing on some particular development or evolution in modern life or thought. There were pigeon-holed cabinets with literally thousands of compartments, into each of which were sorted scores of little white papers with references to some particular topic, so drawn up (as far as I could judge) that no one but the compiler could easily make out the drift of the section. Arranged in the middle of the long two-storied room was a sort of altar or column composed entirely of unopened parcels of new books from continental publishers. They were apparently coming in at the rate often or fifteen books a week, and the owner had evidently tried to keep pace with the accumulation—to digest and annotate them all, and work them into his vast thesis—whatever it was.

For years apparently he must have been engaged on this Sisyphean task. Over all these were brown holland sheets, a thick coating of dust, the motes dancing in the pale September sun, a faint aroma of mustiness proceeding from thousands of seventeenth and eighteenth century leather bindings in a room that had been locked up since its owner's death. I never saw any sight which so much impressed on me the vanity of human life. A quarter of the work that had been spent on making those annotations and filling those pigeon-holes would have produced twenty volumes of good history—perhaps an epoch-making book that might have lived for centuries. But all the labour had been wasted—save so far as the actual accumulation of the dead books was a permanent gain to Cambridge—because the accumulator had too vague and too broad an aim.

It is better to have produced one solid monograph on the minutest point— better to have edited a single pipe-roll or annotated a single short chronicle—than to have accumulated for forty years unwritten learning that goes down to the grave and is lost. And I said to myself—Learn to be definite at all costs; be limited, if it is necessary, stick to a single century if it must be so, or to a single reign, but write something—knowledge not committed to paper is knowledge lost."

- (Charles Oman, Inaugural Lecture on the Study of History)

Monday, June 20, 2016

What was the point of the American Revolution?

Last year, Dylan Matthews at Vox ventured to suggest that American Independence might have been a mistake.  Knowing this, can one celebrate July 4th with a clear conscience? 

The Declaration of Independence stresses claims to justice and rights, but this was for the practical purpose of gaining French support for the cause.  From a utilitarian point of view, it was easy to scoff at the logic (as Jeremy Bentham did).   

Independence did not yield clear material benefits -- a generation of economic stagnation followed.  And, nor did Independence do much to alleviate the burden of taxation -- it was already the lightest in the world.  Nor was Independence necessary for self-government -- colonial legislatures were elected with an even broader franchise than the House of Commons in London, and Governors wielded little power against their wishes.

So why the fuss?  There was a religious division between puritan colonists and anglicans in the mother-land -- but that was nothing new, and religious divisions among the colonies were just as great if not greater. There was popular hysteria about an oligarchic coup -- but why all of a sudden did this lead to a revolution for Independence?

The crux of the matter is foreign policy.  During the mid 1740s, American colonists fought boldly in King George's War to capture the strategically-important Fort of Louisbourg at the entrance to the St Lawrence River from the French.  As part of the peace treaty, in which many other British interests were at stake, the fort was handed back to France.  This was taken as a betrayal by the colonists, but began a genuine divergence of core national security interests between Britain and its American colonies.

Pressed against the Eastern Seaboard, and surrounded by a vast French Catholic territory stretching from Quebec to Louisiana, the protestant British colonists had little choice but to accept the situation until the  Seven Years' War -- a conquest fought across the globe in which control of North America was at stake.  When French power in North America was destroyed at the Battle of the Plains of Abraham, removing the main geopolitical threat to the colonies, the situation was transformed.

When the war (the most expensive in human history until that date) ceased, the British Parliament sought for the first time to gain financial contribution from colonists to pay for their defense.  The Stamp Act of 1765, which sought to do so, set in motion an escalating cycle of resistance and coercion which led to the Declaration of Independence.

But why were the colonies unwilling to accept the protection of their kinsmen for a fraction of the cost that it would have taken them to undertake it themselves?

The reason is also largely geopolitical.  Although Daniel Boone was first to blaze a trail through the Cumberland Gap in 1775, the colonists were united in their ardor for westward expansion.  George Washington's early career was focused on surveying the wilderness, expanding European civilization westward through Virginia -- and many of the other Founding Fathers embraced what would later be called "manifest destiny" with similar zeal.

To George III, things appeared different.  Just as the 1770s represented an attempt by the Crown to establish a lasting settlement in financing the military defense of its American colonies, so it needed to find a new formula for the rights of its various subjects.  He had little interest in being dragged into wars provoked by settlers intruding on Indian lands.  Nor did he wish to provoke a fight with french-speaking Catholics in Quebec, who were now his subjects.  In the 1774 Quebec Act, the British Parliament granted rights to the Catholic church through the vast "Quebec" territory (which also included most of what is now America's Midwest).

Yet, the Quebec Act was one of the primary grievances mentioned by the Declaration of Independence.  What did the colonists have to fear from George III the broker and defender of a multicultural peace?

The Founding Fathers wanted to preserve their "rights of englishmen".  They wanted the right to own land, to move westward, to practice the protestant religion under their own authority, and to rule themselves through local and provincial elected assemblies.  This was at odds with the provisions made for "Quebec", which placed a hard barrier to the westward expansion of the system of self-government.  In India, where the Empire had also expanded tremendously as a result of the Seven Years War, nabobs accumulated immense fortunes, while ordinary Indians lacked any democratic rights altogether.  As the British Empire began to establish hierarchical systems of government in India and "Quebec", the American colonists had good reason to fear they would soon be treated similarly.

Independence was fundamentally a challenge to this emerging system and represented a defense of the old arrangements that the colonists had enjoyed.  Rather than being a multicultural project, it was a deliberate attempt to expand the self-governing protestant culture westwards.

Britain suffered little in the 1783 Treaty of Paris, which ended the American Revolutionary War.  It was freed to expand its Empire in Asia and Africa, while colonists pushed the Anglo-Saxon culture and system of government across the American continent unhindered by the traditional geopolitical jealousies of France or Spain.  Native American tribes had played the European powers off against each other to defend their land.  They were the main losers, once an independent United States was given free rein on the continent.

Friday, June 10, 2016

The Economic Wisdom of Collective Ignorance

Review of Bryan Caplan's Myth of the Rational Voter

Among social scientists, economists hold a relatively high opinion of man's capacities.  They believe him to be resourceful, efficient, and clear-sighted.   He is thought to be prudent, and his judgments reasonable. So, what are economists to make of a situation where most people, as voters, seemingly reject the most highly reasoned recommendations that their profession has produced?

George Mason University economist Bryan Caplan attempts to answer this question in his discussion of The Myth of the Rational Voter .  In particular, he attempts to explain: Why do voters seek to obstruct the import of cheaper goods from abroad?  Why do they disfavor corporate downsizing that increases economic productivity?   And why does the electorate treasure costly entitlement programs while fretting about the negligible fiscal consequences of foreign aid?

In line with Nietzsche's claim that "he who has a why to live can endure any how," Caplan views man's appetite for arbitrary absolutes as congenital, asserting that "worldviews are more a mental security blanket than a serious effort to understand the world."   Although, as a good economist, Caplan grants that such beliefs are susceptible to incentives, he argues that such incentives are negligible in the political realm, since individuals have little chance of directly determining the outcome of elections in an electorate of millions.   A vote does not guarantee a political outcome the way an individual purchase of an economic good does.  As a result, voters have little reason to sufficiently inform themselves of the true consequences from proposed policies, and are therefore free to hold mistaken worldviews, regardless of the costs these may inflict on society.

Using survey data that compares voters' policy opinions with their knowledge of objective political facts, Caplan finds that most voters are poorly-informed and hold systematically skewed beliefs.   Voters, he claims, have failed to incorporate Adam Smith's central economic teaching: that man, "by pursuing his own interest… frequently promotes that of the society more effectually than when he really intends to promote it."   Caplan argues that this is "because Smith's thesis was counterintuitive to his contemporaries, and remains counterintuitive today."  As a result, policy is subject to four fundamental flaws, which he labels anti-market bias, anti-foreign bias, make-work bias, and pessimistic bias – all of which stand stubbornly against the forces of reason, and at every step serve to obstruct the rational organization of economic resources.  

Yet, given that democratic economies significantly outperform those of non-democracies, Caplan's argument is rather unconvincing.   In reality, the economic virtues of democracy (that the costs and benefits of public policies are accounted for within the political process, regardless of who bears them) counteract the vices that Caplan diagnoses.   While there is little evidence in the behavioral economics literature for the systematic cognitive skews he alleges, pervasive self-serving bias is well-documented.   This merely strengthens the alternative hypothesis – that voters are best motivated to identify their own pressing needs, that their votes are valuable to political leaders who compete to supply the savviest defense of their interests in return, and that legislative institutions allow representatives to trade support for whatever policies allow for the most efficient overall allocation of resources.  Yet, before exploring this counter-argument, it is important to consider whether the cognitive biases that Caplan identifies are to blame for voter irrationality, or whether he has merely misinterpreted voter interests.  

The widespread public opposition to the policy of free-trade, which economists overwhelmingly endorse, is Exhibit A in Caplan's argument.   Using survey evidence suggesting that the public blames economic woes on fears that "companies are sending jobs overseas", he attributes this to the chauvinistic pride that people enjoy from "the belief that foreign products are overpriced junk," which survives correction through lack of responsibility for the consequences.   This is indeed a good example of how specific cultures allow biases to persist without scrutiny, but not one which affords Mr Caplan's profession any reason to sneer at the general public.   Indeed, it is quite astonishing that none of the dozens of economists acknowledged in the introduction to the book pointed out the obvious concentration of protectionist sentiment in areas of the country that face the threat of plant closures from foreign competition.   Given regional negative multiplier effects, this is clearly the result of an entirely rational concern for the prosperity of one's own local community.   When a relatively high-wage country removes trade barriers with poorer nations, unskilled labor often becomes a more abundant factor of production, which can reduce the wages of such workers in the relatively prosperous country.   This may create net wealth for a nation as a whole, and effected workers are certainly free to upgrade their skills, but economists should not be surprised when those at risk vote on the basis of trade issues, whereas the rest of the population – who save $5 on a pair of shoes – do not.

But it is not just the creative destruction wrought by foreign entrepreneurs that is subject to popular suspicion.   Caplan argues that the public tends "to overestimate the severity of economic problems and underestimate the (recent) past, present, and future performance of the economy."  Compared with economists, the general public feels that the cost of living has risen faster than wages, thinks that more jobs are being lost than created, and believes that things will likely only get worse.  Although public perceptions may be skewed by the fact that bad news is always bigger news, this itself is an indication that the economic costs that matter to the public are not always those measured by economists.   While academics measure a dollar of economic expansion and one of economic contraction equally, the burden of downsizing to individuals is much greater, since it often forces people to replace employment-specific (physical or human) capital investments that have been rendered obsolete. As a result, where foreign competition or new technology threatens to lead to the loss of employment, those at risk are often quick to seek political protection.  

Furthermore, the policy preference biases that Caplan proposes are clearly not universal, and are poor predictors of public opinion.   Where the public depends on government programs, such as Social Security or Medicare, and has invested in the existing system and arranged their lives in anticipation of a stream of benefits, it is quick to defend them.   Yet, as Hillary Clinton found with healthcare in 1994, where the public relies on private institutions for services, it is loathe to accept higher charges and jealously guards whatever freedoms it enjoys.   While moments of extraordinary politics where the status quo no longer functions (for instance, during the Great Depression or after Britain's 1979 Winter of Discontent) may provide an opening for radical reform, the public cares more about defending its existing prerogatives, than entertaining the promises of abstract and unproven schemes for improvement.  

As the Athenian argued in Plato's Laws, "most people only ask their legislator to enact the kind of laws that the population in general will accept without obligation.   But just imagine asking your trainer or doctor to give you pleasure when he trains or cures your body!"  While, contrary to Caplan's assertions, such aversion to painful reform may be quite rational, opposition to the elimination of inefficient production arrangements can profoundly impede economic growth.   So, an important question remains: How is a democratic society to escape this 'tyranny of the status quo'?

The answer lies with economic and political entrepreneurs.  Just as market imperfections such as patents allow firms to hold longer time-horizons and capture the gains of innovation in economic markets, so secure terms of office offer politicians incentives to encourage and permit reforms that benefit public and private sectors alike.   Conversely, in fragmented political systems, where coalition governments allow little scope for autonomous leadership, the constant threat of dissolution for failing to satisfy any of a multitude of governing partners (each of which possess an effective veto) ensures that there is often very little scope for the state to allow the status of any established interests to wane.

Since voters are each limited to a maximum of one vote every four years for presidential elections, a ballot is a very scarce and valuable commodity to anyone whose life may be affected by political alternatives.  (In this sense, the incentive to consider options seriously and spend wisely is much greater than it is in economic markets, where if you dislike the DVD you have bought, you can easily and quickly buy another.) As a result, a particular reason for casting a vote comes with high opportunity costs, since voters are forced to trade-off the value that they derive from preferences across different issues.   Working class voters, for example, must often weigh the benefits of higher expenditure on prisons and police pledged by one candidate against the expansion in Medicaid spending which another proposes.  

Political scientists have long noted how the alignment of electoral divisions can shift from one set of issues to another, and it is often argued (against evidence of broad stability) that politicians can tack between issue dimensions at will, to evade electoral scrutiny.   Yet, since most votes are swayed by the primary issues of taxes, entitlements, public services, and crime, which have the most pressing effects on voters' lives, and since policies drawn from public purse are often interlinked and impose deadweight losses that burden the economy as a whole, electoral preferences tend to hold a certain consistency.  

But, Caplan would argue, since a single vote is so insignificant relative to the aggregate electoral outcome, why should individual voters expend the necessary efforts to properly anticipate the consequences of their vote and hold the correct people accountable?

While it may be irrational for many people who are not particularly passionate about politics to vote, the fact that those whose livelihoods depend on political outcomes are limited to only one ballot gives them very strong incentives to do whatever they can to persuade and entice others to turn out.   Indeed, it is imperative for interest groups (whose power is directly tied to how many people they can get to vote), political parties, and candidates to provide strong reasons for people to vote, to construct their policy positions accordingly, and to develop social networks that generate peer pressure and cultural expectations to ensure that people get to the polls.   Given the network externalities associated with voting, voters have the motivation to provide critical information that might persuade non-voters to turn out, since this can strengthen the position of the candidate who promises to benefit them.   As E.E. Schattschneider once noted, "everything about public affairs [is] vastly more newsworthy than business affairs," and bringing an issue into the political realm significantly increases the incentive for all and sundry to disclose and publicize the relevant information that may influence its resolution.   Should some voters fail to support the candidate that best advances their interests, other candidates have good reason to invest substantial amounts to target them.   At the same time, while voters can be expected to accurately respond to significant threats to their own wellbeing, few voters have reason to spend much effort informing themselves of the negligible fiscal consequences of foreign aid, given that this matter does not serve to sway their vote.

Yet, "if voters do not know term limits," Caplan argues, "incumbent politicians will be punished for the sins of their predecessor, and share credit for their achievements with their successor."   In such situations, however, political entrepreneurs can serve to aggregate, organize, and certify the critical information needed for the electorate to render its verdict.   Union leaders are not easily fooled to misperceive their interests, and their members are willing to trust their expertise when they stand to gain.  Similarly, organizations such as the AARP and associated publications can help voters separate sincere from insincere politicians that claim to defend particular interests – even when the issues involved are as abstruse as the proposed progressive indexing of Social Security.   That the cost of organizing concentrates power in the hands of a few privileged interest groups, is an argument to lower the costs of democratic participation and to increase the opportunities for political organization, not one for reducing its scope.  

As Gary Becker has observed, because "the total amount raised from taxes, including hidden taxes like inflation equals the total amount available for subsidies, including the hidden subsidies like restrictions on entry into an industry… policies that raise efficiency are likely to win out in the competition for influence because they produce gains rather than deadweight loss."   In the case of free-trade, since the costs of economic protectionism are greater in aggregate than the stresses from foreign competition that are felt acutely, there is much cause for politicians to accept free trade, and provide compensation to those disadvantaged by the change.   Indeed, this is precisely the basis for the Trade Adjustment Assistance program, and such measures regularly form part of the legislative deals that secure Congressional assent for trade liberalization.   As a result, the United States is able to enjoy benefits from substantial free trade policies.

Similarly, to the extent that the burden of taxation is concentrated on marginal activities undertaken by a minority, adverse incentives on such production are similarly concentrated.   As a result, such taxes generate little revenue relative to the cost they impose by diverting high-skilled labor away from the activities where it produces the most value for society.   Since the incidence of taxation is not isolated to the faction on which it is seemingly imposed, and such disincentives to production threatens to lower all boats, the popular parasitism that Tocqueville and Madison feared from "majority tyranny" has not materialized.   Indeed, as Gordon Tullock once observed, supposedly majoritarian political systems in reality encompass a broader range of interests, since politicians "must continually be seen to be engaging with non-members of the coalition, in order to keep the members in line."  

In a society where the majority of voters have significantly more to lose than their chains, government spending that offers "Something for Nothing" often engenders corruption and concentrates gains among those placed to most ruthlessly exploit the system.   This, unsurprisingly, tends to prove unpopular with a majority that must work hard for its income.  Yet, public opinion often insists that people who are afflicted through no fault of their own should not fall victim to theoretically dogmatic and practically asymmetric laissez-faire, and that the imperfections of existing institutions should not be used as excuses for total neglect.   As Amartya Sen has noted, democracies have never blithely tolerated famines, and similarly have incentives to make up for market imperfections that may lead human potential to go to waste, by investing in the education of those who could not afford to do so themselves.  

This does not mean that democracy will necessarily resolve all structural problems.  For example, when the majority is not afflicted by the consequences of entrenched institutional failures and dysfunctional cultures (such as those stymieing the accumulation of human and social capital by the poor), it often possesses incentives to isolate itself and throw money at such problems, rather than to insist on reform, if the costs of doing so are lower.   Yet, while democratic representatives are capable of delegating authority to civil service experts or allowing markets to resolve social problems, democracy clearly constrains the capacity for social elites to neglect and actively impose burdens on other sections of society, whether by factional interest, misguided intentions, or the imposition of skewed priorities that are blind to the facts on the ground.

Caplan warns of fanatical political movements, foisting their nostrums on the public.  Yet, these gain sway far easier when ambitions for social reform are not tempered by the need to convince a multitude of voters with differing priorities and often contradictory motives, preoccupied with mundane concerns, and under the sway of hard-won experience, habit, and tradition.   In a winner-takes-all electoral system, such as that for most political offices in the United States, it is hard to explain why so very few people choose to vote for ideologically pure third party no-hopers without concluding that most people are pragmatic in their attempts to advance their preferred policies.  

V.O. Key was therefore right when he famously concluded that "voters are not fools", and that "in the large the electorate behaves about as rationally and reasonably as we should expect."   Indeed, there is good reason to believe that, at least in the case of economic policy (which is a positive-sum game), greater constraints on political elites, resulting from a freer and more competitive market for the dissemination of information and for organization in the public political process would lead to more rational outcomes.   Although one might reasonably question the time-horizons offered to legislators in the form of term lengths and other institutional rigidities, the desirability of the ultimate sovereignty of the voter and a multiplicity of inlets for public scrutiny and discipline on economic policy is hard to doubt.