Category Archives: Public Policy and Governance

Comey, Continued….

Yesterday, while editing an post that I intended to send out this morning. I inadvertently hit “publish” rather than “save,” so subscribers received an extra transmittal yesterday.

Sorry about that! But let’s continue that discussion….

I don’t know what the effect of Comey’s actions will be on the election; we still have 8 days, and given the magnitude of the criticism he has received, perhaps he will clarify or otherwise clean up his mess prior to election day. There is speculation that his action will generate more enthusiasm and higher turnout among Trump voters, but it is also possible that anger at what will seem to many Democrats a “dirty trick” will motivate Clinton voters.

My own concern is the potential effect on the down-ticket races. Who knows? We’re in uncharted waters here.

That said, let’s revisit the ethics of Comey’s action.

letter in yesterday’s New York Times addressing that issue deserves broad readership. It was from Richard W. Painter, currently a professor at the University of Minnesota Law School, who formerly served as the chief White House ethics lawyer from 2005 to 2007, during George W. Bush’s administration.

Mr. Painter has filed a complaint against the F.B.I. with the Office of Special Counsel, which investigates Hatch Act violations.

The opening paragraphs of his letter explain the reasons for the rules that are in place–the rules Comey disregarded.

The F.B.I. is currently investigating the hacking of Americans’ computers by foreign governments. Russia is a prime suspect.

Imagine a possible connection between a candidate for president in the United States and the Russian computer hacking. Imagine the candidate has business dealings in Russia, and has publicly encouraged the Russians to hack the email of his opponent and her associates.

It would not be surprising for the F.B.I. to include this candidate and his campaign staff in its confidential investigation of Russian computer hacking.

But it would be highly improper, and an abuse of power, for the F.B.I. to conduct such an investigation in the public eye, particularly on the eve of the election. It would be an abuse of power for the director of the F.B.I., absent compelling circumstances, to notify members of Congress from the party opposing the candidate that the candidate or his associates were under investigation. It would be an abuse of power if F.B.I. agents went so far as to obtain a search warrant and raid the candidate’s office tower, hauling out boxes of documents and computers in front of television cameras.

The F.B.I.’s job is to investigate, not to influence the outcome of an election.

The letter deserves to be read in its entirety, but here is Painter’s conclusion.

Absent extraordinary circumstances that might justify it, a public communication about a pending F.B.I. investigation involving a candidate for public office that is made on the eve of an election is thus very likely to be a violation of the Hatch Act and a misuse of an official position. Serious questions also arise under lawyers’ professional conduct rules that require prosecutors to avoid excessive publicity and unnecessary statements that could cause public condemnation even of people who have been accused of a crime, not to mention people like Mrs. Clinton, who have never been charged with a crime.

This is no trivial matter. We cannot allow F.B.I. or Justice Department officials to unnecessarily publicize pending investigations concerning candidates of either party while an election is underway. That is an abuse of power. Allowing such a precedent to stand will invite more, and even worse, abuses of power in the future.

The Original Sin

We can all list behaviors we consider sinful.

My list begins with self-righteousness, defined as moral smugness combined with a troubling lack of self-reflection and humility. Enormous harm is done by folks who are absolutely convinced that they are in possession of Truth, and that their actions–no matter how inconsistent with social or constitutional norms–are therefore justified. When self-righteous people are in positions of authority–whether they are Governors or FBI officials–their unshakable belief in their own moral superiority can undermine both liberty and democratic processes.

As Learned Hand famously put it, “The spirit of liberty is the spirit which is not too sure that it is right.”

Which brings me to FBI Director James Comey.

As two former Deputy Attorneys General wrote in Sunday’s Washington Post, the FBI

operates under long-standing and well-established traditions limiting disclosure of ongoing investigations to the public and even to Congress, especially in a way that might be seen as influencing an election. These traditions protect the integrity of the department and the public’s confidence in its mission to take care that the laws are faithfully and impartially executed. They reflect an institutional balancing of interests, delaying disclosure and public knowledge to avoid misuse of prosecutorial power by creating unfair innuendo to which an accused party cannot properly respond.

Decades ago, the department decided that in the 60-day period before an election, the balance should be struck against even returning indictments involving individuals running for office, as well as against the disclosure of any investigative steps. The reasoning was that, however important it might be for Justice to do its job, and however important it might be for the public to know what Justice knows, because such allegations could not be adjudicated, such actions or disclosures risked undermining the political process. A memorandum reflecting this choice has been issued every four years by multiple attorneys general for a very long time, including in 2016.

It is precisely this “balancing of interests” that self-righteous people cannot understand.

The modern world, to the consternation of many people, rarely gives us a bipolar choice between good and evil, black and white.  We live–like it or not–in perpetual shades of gray, a world where “on the one hand” competes with “on the other hand,” and ethical decision-making more often than not requires us to balance competing goods. Unfortunately, ambiguity is intolerable to people who live in a Manichean world where they are on the side of righteousness.

There has been an eruption of anger over Comey’s decision to make public the discovery of emails found on devices used by then-Congressman Anthony Weiner and his wife, Huma  Abedin, a close aide to Hillary Clinton. The criticism–much of it from Republicans within the FBI– has been harsh: not only was the disclosure inconsistent with Department of Justice traditions, not only did Comey ignore his boss, the Attorney General, who told him to abide by departmental regulations, but he admitted he didn’t know whether the emails were significant, or mostly copies of messages the Department had previously reviewed. He hadn’t seen them.

Partisans, noting that Comey is a Republican, have accused him of political motivations. Perhaps, but my reading is different. The way in which he announced the FBI’s original conclusion not to recommend charging Clinton (a result entirely unsurprising to most lawyers) provided a clue. During that press conference–itself a violation of normal procedures–he coupled the FBI’s finding that no laws had been broken with a highly offensive, unnecessary and self-serving lecture about “carelessness.”

Comey has defended his decision to inform Congress of the existence of additional emails  with reasoning that reeks of self-righteousness and an unseemly focus on his own reputation–consequences to the integrity of the FBI and the Presidential campaign be damned.

As the former Attorneys General concluded,

Justice allows neither for self-aggrandizing crusaders on high horses nor for passive bureaucrats wielding rubber stamps from the shadows. It demands both humility and responsibility.

Ironically, unless I miss my guess, Comey’s utter lack of such humility has now destroyed the reputation that meant more to him than the consequences of his decision for the nation. His incredible arrogance has also probably ended his career. But in the age-old tradition of the self-righteous, he will undoubtedly consider himself a martyr.

 

The Price of Justice

The fact that politicians seem to get away with incredibly slanderous and libelous comments has been a particular annoyance during this election campaign. Granted, it’s hard to match the invective of Donald Trump, but if we’re honest, we have to admit that he has simply normalized and amplified the growing nastiness of too much of American politics and culture.

Seen any Senate ads lately?

Of course, candidates know what they are getting into, and I suppose they can slug it out (although it does make you wonder how many nice, qualified people who would do a good job simply decline to get down and dirty), but other objects of vitriol and unsubstantiated accusations are rarely in a position to fight back.

Think about the women (I believe the number is currently 12) who summoned their courage and shared their “Trump experiences” following disclosure of the appalling “pussy tape.” They probably anticipated his rage and bluster and denial, but those reactions have been accompanied by threats of lawsuits. Trump is clearly someone who issues empty and even ludicrous threats (see: letter to the New York Times), but he has also been involved in literally thousands of actual lawsuits, and not always as a defendant. In fact, as Ed Brayton reports, 

The New York Times reports that the American Bar Association prepared a report calling Donald Trump a libel bully for his decades-long use of defamation suits to stifle criticism of him, but they chickened out on releasing it because — drumroll, please — he might sue them.

The New York Times can take care of itself, but if the threat of litigation can chill and intimidate the ABA, think of the effect on even the most blameless and resolute accuser. If you lack the financial wherewithal to mount an adequate defense to a lawsuit, no matter how unfounded, the person pursuing that lawsuit starts out with a grossly unfair advantage. Even a loss is a win, when the real goal is to inflict damage.

This problem goes well beyond the antics of the spoiled brat running for President, and it isn’t simply relevant to libel cases. Ask any lawyer who has defended  or sued on behalf of a “little guy” against a large corporation represented by a major law firm. For that matter, ask the twenty-year-old stuck in the Marion County Jail awaiting trial on a relatively minor charge, who doesn’t have money to post bail and is represented by an overworked public defender because he can’t afford private counsel.

In far too many situations–not all, but too many–justice is something only the affluent can hope for.

Americans talk a lot about the obvious problems with our justice system: (1) inexcusable delays in the federal courts because there aren’t enough judges (thanks to Mitch McConnell and the GOP lawmakers who simply refuse to fill judicial vacancies so long as Obama is nominating the candidates for those positions), (2) unarmed people getting killed because police departments’ training programs–especially in smaller communities– are spotty at best and nonexistent at worst, (3) hundreds of thousands of people–mostly black– suffering mass incarceration and lifelong stigma thanks to a Drug War that we now know had little to do with controlling drugs and lots to do with continuing Jim Crow practices (I urge everyone reading this to watch Netflix’ documentary, “13th.” It gives chapter and verse.)

There’s much more.

The good news is that there finally seems to be a bipartisan recognition of at least some of these problems and even some evidence of a willingness to address them.

Bottom line: your chances of achieving justice–whether that’s redress of a wrong done to you, or the fair and timely resolution of a charge against you–shouldn’t depend upon  who is in office or what’s in your wallet.

The American justice system needs to be fixed, sooner rather than later.

 

 

 

The Words We Use…

Last night, I spoke to the student Economic Club at Ball State. Since numbers aren’t my thing, I focused on theory….Here (slightly condensed)are my remarks.

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Terms like conservative, liberal, socialist, progressive get used these days as accusations and insults rather than ways of defining a political or economic philosophy.

On today’s political spectrum, I consider myself liberal, but given the state of current discourse,  it might be worth explaining what I mean by that term—and why my kind of liberalism is compatible with genuine market capitalism, although not necessarily with what passes for capitalism in today’s America.

I am basically an 18th Century liberal, by which I mean a product of Enlightenment values like empirical inquiry, science, and the importance of facts—including facts I may find inconvenient.

It also means I place a high value on both individual autonomy and the common good. And that means I tend to analyze government’s activities through the hypothetical of Locke’s Social Contract.

The United States’ Constitution was crafted by men heavily influenced by Enlightenment ideas. Their belief in protecting a marketplace of ideas owed a debt to Adam Smith’s description of economic markets, a description supported by the experience of the colonists, many of whom were small merchants. Good ideas would win out over bad, in much the same way as that better mousetrap would win market share.

I believe market principles remain sound, but they have to be applied to “facts on the ground” that the Founders could never have anticipated.

There were around 4 million people scattered along the east coast when America won independence; there are now over 300 million. Technology, diversity, and globalization have changed the national landscape. Our job is to craft policies that protect the essential values of the Constitution and Bill Of Rights in new and very different environments. People of good will can disagree about how to do that –but I would argue that in order to disagree productively and civilly, we have to begin with a common basis in fact and history, and we have to agree on the definitions of the words we use.

For example, I consider myself a capitalist; I believe in markets—in those areas where markets can work properly.

Economists often define a free trade as a transaction between a willing buyer and a willing seller, both of whom are in possession of all information relevant to that transaction.

Understanding how markets work is important, because it defines the proper role of government in a capitalist system—as an “umpire” or referee, ensuring that everyone plays by the rules.

Teddy Roosevelt reminded us that monopolies distort markets; if one company can dominate a market, that company can dictate prices and other terms with the result that  transactions will no longer be truly voluntary. There are other behaviors that undermine markets: If Manufacturer A can avoid the cost of disposing of the waste produced by his factory by dumping it into the nearest river, he will be able to compete unfairly with Manufacturer B, who is following the rules governing proper waste disposal. If Chicken Farmer A is able to control his costs and gain market share by failing to keep his coops clean and his chickens free of disease, unwary consumers will become ill.

Most economists agree that in order for markets to operate properly, government must act as an “umpire,” assuring a level playing field.

Government also responds to what economists call “market failure.” There are three situations in which Adam Smith’s “invisible hand” simply doesn’t work: when monopolies or corrupt practices replace competition; when so-called “externalities” like pollution harm people who aren’t party to the transaction (who are neither buyer nor seller); and when there are “information asymmetries,” that is, when buyers don’t have access to information they need to bargain in their own interest. (Health care is an example.)

Since markets don’t have built-in mechanisms for dealing with these situations, most economists argue that regulation is needed.

Economists and policymakers can and do disagree about the need for particular regulations, but they agree that the absence of appropriate regulatory activity undermines capitalism. Unregulated markets lead to corporatism, where special interests can “buy” government regulations favoring them. You might think of it as a football game where one side has paid the umpire to make calls favorable to that team.

Socialism refers to the collective provision of goods and services, usually through government. There are some goods that free markets cannot or will not produce. Economists call them public goods, and define them as both “non-excludable” –meaning that individuals who haven’t paid for them cannot be effectively kept from using them—and “non-rivalrous,” meaning that use by one person does not reduce the availability of that good to others. Examples of public goods include fresh air, knowledge, lighthouses, national defense, flood control systems and street lighting. If we are to have these things, they must be supplied or protected by the whole society, usually through government.

Obviously, not all goods and services that we socialize meet the definition of public goods.  We socialize police and fire protection because doing so is generally more efficient and cost-effective, and because most of us believe that limiting such services to people who can afford to pay for them would be immoral. We socialize garbage collection in more densely populated urban areas in order to enhance the livability of our cities and to prevent disease transmission.

Getting the “mix” right between goods that we provide collectively and those we leave to the free market is important, because too much socialism hampers economic health. Just as unrestrained capitalism can turn into corporatism, socializing the provision of goods that the market can supply can reduce innovation and incentives to produce. During the 20th Century, many countries experimented with efforts to socialize major areas of their economies, and even implement  socialism’s extreme, communism, with uniformly poor results. Not only did economic productivity suffer, so did political freedom. (When governments have too much control over the means of production and distribution, they tend to become authoritarian.)

Virtually all countries today have mixed economies. The challenge is getting the right balance between socialized and free market provision of goods and services.

There’s lots of room for disagreement about things like how much regulation is too much, what level of national debt slows economic growth, what the tax burden should be and who should pay what. But in today’s America, these discussions tend to be all ideology and no understanding—all heat, no light. I wish I had a dollar for every TV pundit who clearly did not understand the difference between the deficit and the debt, or the difference between marginal and effective tax rates. We have people in Congress who quite obviously don’t understand what the debt ceiling is and isn’t.

It’s actually a good thing that Americans disagree—thoughtful disagreements often lead to better results. But it is really, really important that parties to a debate know what they are talking about. That is a lot harder today, thanks to the Internet and the collapse of that quaint exercise we used to call journalism. We live in an era of cherry-picking and confirmation bias—and our preferred realities are only a click away.

At the end of the day, policies based on ideology or wishful thinking just make things worse. And arguing about economics without agreeing on the meanings of the words we use is worse than useless.

 

 

Term Limits: Another Bumper-Sticker Solution

Americans have very hazy notions of how government actually works. As a result, they tend to embrace “reforms” that sound superficially attractive but would actually make things worse. I call them “bumper sticker” solutions because they are usually short and simple enough to slap on your car’s bumper.

Vox recently addressed one of those “solutions,” term limits, and did a very good job of explaining why this particular “fix” is a terrible idea.

In one recent survey, 75 percent of Americans said they supported term limits, including 65 percent of Democrats.

For that reason, it’s worth spending a few minutes on this point, because it does get to a fundamental problem with how the public views Washington. There is a perennial myth that the problem with Washington is that the longer people spend there, the more corrupt they become. Therefore, the only way to ensure good judgment in politics is to constantly have a bunch of fresh-faced lawmakers who are total rookies and don’t understand how anything in Washington works.

Since 15 states do have term limits, we actually can know something about their effects. And the political science literature here is pretty unequivocal. Term limits are the surest way to weaken the legislative branch and empower the executive branch. Term limits are also a great way to empower special interests and lobbyists. Basically, what term limits do is shift power toward those who are there for the long haul.

For example, here’s the conclusion from a 50-state survey published in 2006: “Term limits weaken the legislative branch relative to the executive. Governors and the executive bureaucracy are reported to be more influential over legislative outcomes in states where term limits are on the books than where they are not.”

This result has been replicated multiple times. In one study, a post-term-limits respondent said that after term limits, “agencies [do] what they want to. [One bureaucrat told me] we were here when you got here, and we’ll be here when you’re gone.” As the authors of this study note, “Legislative oversight is the venue of specialists. A term-limited legislature tends to be populated by generalists, who lack the accumulated knowledge to exercise oversight effectively, if they even recognize it as their responsibility.”

Term limits also strengthen the power of lobbyists and interest groups for the same reason….  But like the executive agencies of the state government, lobbyists and interest groups are also there year after year. They are the true repeat players building long-term relationships and the true keepers of the institutional knowledge. This gives them power.

The truth of the matter is that government operations are complicated, and competent policymaking requires significant substantive and procedural knowledge. At the federal level, congressional (House) terms are two years–just enough time for a neophyte to find the bathroom and figure out the arcane rules of procedure. The first thing every newly elected Representative does is hire staff from among the available pool of political and policy experts with relevant experience, and for at least the first term–and probably the second–a smart Congress-critter will be guided by those staff member, because they’ve  been around long enough to know the ins and outs.

A significant percentage of the people who staff congressional offices are in Washington for the long haul serving consecutive committees and elected officials. If elected folks are term-limited, those faceless staff members will be the ones really making policy decisions. So much for accountability.

We already have a mechanism for limiting legislators’ terms. It’s called voting. The biggest impediments to its effective use are gerrymandering and civic ignorance.