- Changing Sources of Republican Ideology: From Academia to Demagoguery
- Enriching Analysis of Judicial Decision with Personality Theory and Moral Foundations Theory (Part I)
- Given Principles the Entire Court Accepts, a Less Naïve View of Political Influence Contravenes the Court’s Ruling in Citizens
- Giving Justice Scalia His Principle
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People frequently talk these days about how the Republican Party has shifted further right. Many long-time Republicans are, in fact, very frustrated with the positions and inflexibility of ideological Tea Party-ers. Just as, if not more, troubling than this rightward shift, however, is the change in the nature of the drivers of the Republican Party’s core beliefs. Importantly, I’m not here promoting a conservative or liberal agenda. What troubles me is the shift in how opinion is shaped; though, much of what’s most concerning is most prominent in the Republican Party. This is not surprising as—judgment aside—Republicans are generally more supportive of the interests of business and the wealthy.
I’ll begin by looking at the sturdier groundings of core conservative beliefs and the impact these beliefs had on our politics, and will then look to the evolution of influence from less reliable sources. Much of conservative thought—whether right or wrong—is grounded in deep philosophical and ethical study, analysis, and debate. And historically, academia and intellectual debate has been a, if not the, core source for many of the beliefs of right-leaning policy-makers. Much of the anti-government sentiment of modern conservatism has a pedigree going back to The Enlightenment and Classical Liberalism. Many branches of thought grew out of the central tenants of these movements, including, in the US, the much more extreme US version of Libertarianism, and non-libertarian conservatism similarly derives many of its core beliefs from these same some philosophically and historically grounded movements (again, not to say they are right or wrong).
Academic economics has provided another analytically-based source of conservative beliefs. Milton Friedman and the Chicago School provided an intellectual base for, and then evangelized what became for many decades orthodox economic theory, a theory that placed tremendous faith in the proper workings of free markets—to the extent that The Efficient Market Hypothesis became commonly accepted as fact. This economic thought was a foundation upon which the developed Washington Consensus, which long held sway among many thoughtful, informed policy-makers of varied political stripes, including those of the Clinton administration (good recent accounts of these developments are given in Justin Fox’s ‘The Myth of the Rational Market’ and Michael Hirsh’s ‘Capital Offense…,’ among many others). Before the Great Recession, I, too, also embraced much of the Washington Consensus.
Starting somewhat earlier, but somewhat contemporaneous with the above, intellectuals and evangelizers such as William F. Buckley and Barry Goldwater promoted developed and promoted conservative ideas that encompassed the above ideas along with more socially oriented beliefs.
Much of the above-mentioned erstwhile orthodox economics has in recent decades by developments in Behavioral Economics and our understanding of the market breakdowns that result from information asymmetries and other imperfections (Cf. works by Joseph Stiglitz, Daniel Khaneman, Amos Tversky). These latter economic ideas have since gained consensus-status and were given much empirical validation by the Great Recession.
But there’s another quite distinct source of Republican ideology, one that is fairly insensitive to recent evolution in economic thought and which has in fact evolved—or better, devolved—in recent years. In the sixties and seventies the Republican Party was in poor shape; Democrats consistently held both the House and the Senate. Republicans, however, found salvation (excuse the pun) in Jerry Falwell’s ‘Moral Majority’ and the many evangelical preachers, making use of the growing mega churches and televangelism, that helped Republicans take back from the Democrats much of the Southern vote through the promotion of the Republican Party as bulwark for the preservation of conservative social values.
So that’s the context. Here, though, is where the money comes in, first in a much less pernicious form. In the 1970 came the rise of the conservative think tanks. The American Enterprise Institute (though started early, gained real traction starting around 1971; the Heritage Foundation was founded in 1973, The Ethics and Public Policy Center in 1976, the Cato Institute in 1977, and the National Center for Policy Analysis (NCPA) in 1983. Many others have since followed. This seems benign, but this was a key development in the moneyed elite’s effort— always present, but changing in form—to apply great wealth to sway public and policy-maker opinion. The Heritage Foundation was largely funded by Richard Mellon Scaife (publishing billionaire) and Joseph Coors (of the beer); the NCPA is largely funded by the foundations of similarly wealthy business titans such as the Koch brothers (on whom, more to follow), Josesph Coors, Richard Mellon Scaife, Harry Earhart, John Olin, etc.; the EPPC is receives much of its funding from the foundations of much of the same crew again, i.e. Coors, Koch, Olin, Scaife, etc; and so on. The left has its foundations, of course, but most of them were started much later, they receive less of their funding from such magnates, and, of course, the wealthy that do contribute are not similarly forwarding their personal and business economic interests. (See Paul Krugman’s works for a good account of the conservative think tanks; Krugman is a liberal, but the account can be verified at sourcewatch.org, among other places.)
Of course, as mentioned, this is the earlier (though it continues) and less pernicious form of billionaires’ shaping opinion. At least these organizations were to some extent engaged in a somewhat rigorous, intellectual debate, in which both conservatives and liberals could participate, even if all were not equally well funded.
What’s concerning now is that the nature of the influence such mega-rich exert has, as the title indicates, shifted from academia and at least semi-academic debate, to populist demagoguery. As in the 1960’s, the Republicans again found themselves in desperate circumstances in the late 2000’s, as many citizens became disaffected with the Bush administration and in the wake of the Great Recession. Something dramatic was needed. And, alas, salvation was found in the Tea Party movement and the ideas it has promoted. This again initially seemed benign, as this appeared to be a grass-roots movement. Unfortunately, though there may indeed be some grass-roots, it’s largely Astro Turf. From the beginning Tea Party meetings and strategy and message development were funded by the (again) Koch brothers, via their Americans for Prosperity Foundation. Leading up to the first Tax Day Protest (April, 2009), to give just one example, Americans for Prosperity promoted ‘Tea Party Talking Points’ via a website it launched. Jane Mayer gives a thorough account of the Koch brothers role in creating and shaping the Tea Party in her excellent and detailed article ‘Covert Operations.’
I won’t go through examples of the demagoguery of Tea Party thought-shapers (nor the role of media such as Fox News), but I think there’s little debate even among conservative intellectuals that it is extensive. The deeply troubling problem is that the drivers of of ideas in the Republican Party has shifted from philosophers and academics (especially economist academics) and even from the billionaire-supported semi-academic foundations, to billionaire supported populist campaigns that employ demagoguery, savvy media strategies, and, indeed the psychology of influence (which I won’t discuss here, but which has made great strains in academia and is now, of course, employed by all parties) to directly shape the thinking of the general population, which myriad academic studies have shown to be mostly uninformed (and subject to all the biases, such as confirmation biases—cf. Stiglitz just-out ‘The Price of Inequality…’—that behavioral economics hold tremendous sway over us all). And, as most political scientists and informed policy-makers understand, the ideas being promoted are very much to the benefit of the wealthy, and very often detrimental to the middle class that constitutes the great preponderance of Tea Party members. To take just one example, leading up to the 2010 congressional race, Republicans, depending largely for their electoral success on Tea Party candidates, were adamantly opposed to letting the Bush reduction in the top bracket tax rate expire, something which of course would have done nothing to hurt the vast majority of Tea Party-ers This is not the way a democracy should function.
And sadly, there’s, as most have learned another stage in this story. In 2011 the Supreme Court made—and I say this based on constitutional grounds—one of its worst decisions in recent years when it ruled on a 5-4 decision conservative/liberal (based on appointing President) split on Citizens United, which opened the door to corporations and (later via the DC Federal Court of Appeals Citizens United-based ruling in Speechnow.org vs. FEC) individuals to donate unlimited amounts to organizations engaged in electioneering. Since then, via Super PACs, corporations and individuals have been able to spend unlimited amounts to promote their favored candidates. Super PACs cannot coordinate with candidates, but these organizations are generally lead by former political directors of the candidates, which makes a farce of the Supreme Court’s justification that as long as there can be no direct coordination there will be ‘neither corruption nor the appearance of corruption.’ Since then, the money has poured in, and we have a situation whereby the likes of casino billionaire Sheldon Adelson, who is opposed to a Palestinian state, spends tens of millions of dollars (and he’s suggested he’ll spend over $100M) to influence electoral outcomes.
The historical trajectory in how political ideas are shaped—from academia, to wealthy-supported think takes, to billionaire-supported Astro Turf demagogic movements, to Super PACs –over the last decades is shocking, saddening, and, I think, a real threat to the quality of our democracy. I hope others join me in fighting this trend, and there are some ways to do so; FreeSpeechforPeople.org and other such organizations—and hopefully more soon—represent some ways to get involved and help preserve American democracy from the undue influence of huge aggregates of wealth.
Enriching Analysis of Judicial Decision with Personality Theory and Moral Foundations Theory (Part I)
Part I: Introduction and Brief Survey of Traditionally Analyzed Influencers of Judicial Decision
As in so many cases, the Supreme Court’s recent rulings in Citizens United v Federal Election Committee, was split 5-4 with all the Court’s conservative justices voting together and all the liberal justices dissenting together (with both ‘conservative’ and ‘liberal’ being defined at a minimum by the political party of the president appointing the justice).
This presses what has long been a nagging question for me: Given the complexity of these constitutional questions, why are the justices so often divided along the conservative/liberal divide in Supreme Court justices (federal or state) judgments about constitutionality? Here I would therefore like to review the major types of potential influencers on a justice’s decision, including, in addition to the influencers most frequently discussed in legal analysis, psychological considerations informed by the fairly young study of conservative/liberal psychology. I will then apply two theories of political psychology to the decision in the Citizens case; these theories are the application of the standard ‘Big Five’ Personality Theory to political stance and Moral Foundations Theory. I will not attempt to show the decisions in the case were determined by psychological considerations—that would be near-impossible—but I think Citizens provides an interesting test application of these young psychological theories, and these theories may enrich the perspective of those analyzing judicial decision in Citizens and generally.
Before moving into the application of psychological theories to judicial decision, it’s helpful to consider broadly the major types of drivers and considerations motivating judicial decision. One obvious one is of course logical reasoning and the justice’s success or failure to reason correctly. A second is the justice’s judicial philosophy, i.e. his philosophical approach to assessing constitutionality. These two are, of course, considered generally legitimate influencers of judicial decision. A third—and I’ll argue this is distinct from judicial philosophy as normally understood—is the justice’s level of judicial restraint, which often consists in his inclination to defer to the democratically elected branches of government at the margin. And a fourth is often articulated to be the justice’s personal or political bias; I will present this as the psychological influencers of the justice’s decision, especially those psychological influencers related to the conservative/liberal divide.
Judicial philosophy is a broad subject, but I believe all of the justices on at least today’s US Supreme Court agree on a few general principles generally associated with different judicial philosophies; though, these principles do guide different justices to different degrees. They all consider the original meaning of the Constitution, informed by the text and historical context—the guiding beacon of Originalism—important to deciding constitutionality (it’s not as though the conservatives embrace this and the liberals reject it). They all agree that considerations of stare decisis—normally a premise of modern Living Constitutionalism and Pragmatism—are important. And they all agree that considerations of the differing roles and natures of the branches and institutions of government are important, as Political Process Theory supports. Finally, all but the strictest of Originalists believe that considerations of the real-world implications and consequences of laws warrant some weight. Analysis of the degree to which different justices embrace these principles and how they apply them is central to traditional analysis of judicial decision and is often informative. However, the significant shared ground among justices as regards the principles underlying these different judicial philosophies often complicates matters and the fact that (though Originalism is more associated with conservative judges) there is no clear liberal/conservative divide as regards these principles together suggest that fully understanding conservative/liberal splits in cases like Citizens based on consideration of judicial philosophy alone is a nearly impossible task. I, at a minimum, find it very difficult.
Various of the judicial philosophies are often popularly associated with different levels of judicial restraint, but as the esteemed J. Harvie Wilkinson III convincingly argues in his new book ‘Cosmic Constitutional Theory,’ this is largely a red herring: a justice can almost equally easily abandon restraint while applying any of these philosophies. This is why I identify judicial restraint as a separate dimension for analyzing a justice’s decision; it has a special relationship to Political Process Theory, because the justification for judicial restraint is partly based on an inclination to defer at the margin to the democratically elected government branches, but being thoughtful of Political Process Theory is not guarantee of judicial restraint, as the latter is partly a matter of one’s general attitude, especially one’s level of humility in the face of very difficult, debatable questions. Considerations of judicial restraint likely hold some relation to considerations of psychology.
Part II: Application of Personality Theory and Moral Foundations Theory to Conservative/Liberal Splits in Judicial Decision
Given Principles the Entire Court Accepts, a Less Naïve View of Political Influence Contravenes the Court’s Ruling in Citizens
The Supreme Court’s decision in Citizens United v Federal Election Committee made legal unlimited corporate expenditures from their general treasures on Super PACs, which have been a critical vehicle of campaign financing—outspending the candidates and parties themselves—in the current election cycle. I believe, with many others, that the position of the majority is both naïve and incorrect. No coverage to my knowledge, however, has presented what I believe is the strongest argument for finding the decision flawed. I will present an argument that the decision was flawed, and I will briefly raise the policy question of whether individuals should be able to donate unlimited amounts to Super PACs.
The foundation of my argument consists in a set of principles on which both Majority and Dissent agree. First, all agree that, per Buckley, it is constitutional to restrain speech where there is a “sufficiently important governmental interest in the prevention of corruption and the appearance of corruption.” Second, all agree that there is just such an interest in proscribing corporations’ contributing general treasury funds to candidates or coordinating with candidates on “electioneering communication,” which is “any broadcast, cable, or satellite communication that refers to a clearly identified candidate for Federal office and is made within 30 days of a primary election and that is publicly distributed” (where “publicly distributed” means, in the case of presidential contents, that the communication is received by more than fifty-thousand individuals.)
The Majority, however, diverges from the Dissent in finding that corporations can employ general treasury funds for independent—i.e., not-coordinated with the candidate or party—electioneering expenditures. It finds that such expenditures to not present a sufficient threat of corruption or the appearance thereof.
Much of the Court’s argumentation in the case relates to the correct constructionist interpretation of the First Amendment and on the application of stare decisis to questions not directly related to those areas of agreement presented above. Both sides present good arguments for the correct constructionist interpretation of the First Amendment, but I think both sides would agree that neither the text of the Constitution or its historical context to conclusively indicate whether or not the Framers’ intended the First Amendment to apply to corporations. Considerations of stare decisis (as regards principles other than those from Buckley) are certainly not the fundamental basis of the Majority’s argument and, in any case, I think the agreed-upon principles from Buckley are more dispositive in this case.
As mentioned, many have commented that upon the naiveté of the Court’s decision. I think the naiveté relates to the distinction the court makes between direct contributions and independent expenditures for purposes of electionioneering. From the perspective of a candidate in need of funds to support the myriad and expensive TV ads required by a campaign, it makes little difference whether a corporate donor contributes to the candidate directly or contributes to an independent Super PAC, as long as the Super PAC effectively supports the candidate. In fact, the candidate may prefer donations to the Super PAC, because such an entity can run negative, which have been shown to generally be more effective than positive ads, without the candidate having to endorse the ads. And given the candidate knows the identity of both donors giving direct contributions and donors to Super PACs, there is little reason to believe there is any difference between direct contributions and donations to Super PACs engaging in electioneering as regards the potential for corruption or the appearance thereof. The Court was indeed naïve to think that independent expenditures for electioneering are meaningfully different from contributions as regards the potential for corruption or its appearance, especially in light of the fundraising and electioneering dynamics of the current presidential primaries.
However, if there is truly no real-world distinction between the different types of financial support as regards potential for corruption or the appearance thereof; given both sides agree that direct contributions provide a sufficient basis for the potential for corruption or the appearance thereof; and given both sides agree that the such a potential does provide a basis for curbing speech; it is hard to justify the exception made for independent expenditures.
Further, if the unlimited expenditures on independent electioneering by corporations should be ruled unconstitutional on the above basis, should not the same line of reasoning also support a limitation on independent electioneering by individuals? It is not clear why a billionaire spending millions on electioneering (he could still spend on non-electioneering speech) supporting a candidate is any different from a corporations’ doing so as regards the potential for corruption or the appearance thereof. Billionaires can have political goals and create political debts in just the same way corporations can. I wouldn’t argue this should have been at issue in this case, as individuals’ rights are not at stake in the case of Citizens, but it may make policy sense to enact a law proscribing such electioneering for both corporations and individuals, and with such a law in place, there would be a basis for bringing a relevant case relating to individuals to the Court. Too bad that Court excluded any such possibility with its naïve and flawed ruling in Citizens.
Giving Justice Scalia His Principle
Reading the transcript of the oral arguments ‘Dept of Health and Human Svcs. Vs. Florida (11-398),’ the supreme court case regarding the constitutionality of the Affordable Care Act’s (ACA) provision on the coverage mandate is frustrating. In a case of supreme importance, a number of the justices’ arguments/questions, especially those from the conservative side of the bench, seem naïve, and while the respondents’ counsel, Mr. Clement, gave a superlative presentation, Solicitor General Verrilli’s responses were frequently glaringly deficient. H failed in particular to adequately respond to Justice Scalia’s request for a principled basis for distinguishing the healthcare market from other markets as regards the federal government’s ability to mandate purchases.
As has been much discussed, Justice Scalia early on asks why, if the federal government could mandate the purchase of health insurance, could it not mandate the purchase of, say, broccoli. General Verrilli gave the expected and, in so far as it goes, correct response that someone who otherwise doesn’t purchase broccoli is not in the market for broccoli, so the federal government’s authority to regulate interstate commerce would not apply; however, in the case of healthcare, the government argues, everyone is in the market, since everyone may one day need healthcare, and if and when they do they will impose a cost on others in the interstate market for healthcare.
Justice Scalia reasonably asked whether the government’s argument presented a principled basis for distinguishing markets in terms germane to the Commerce Clause. What meaningful principle, that is, can guide the court in deciding when the Commerce Clause does and does not permit the mandating of purchases in a given market? In responding, General Verrilli didn’t do much beyond re-iterating the principle implicit in the above, namely that such a mandate is constitutional if the person might end up having to purchase from the market and if that purchase will impose a cost in the interstate market.
The General’s Precarious Principle
An important problem with this response is that it is an intuitive stretch to say that since I might (or might not) in the future perforce partake of services of a given market, I am ipso facto already ‘in that market.’ I think this is part of why the argument didn’t resonate well with the justices. Consider a silly analogy, which reinforces that relying on this non-standard meaning of being ‘in a market’ fails to provide the rock solid intuitive foundation the government’s core argument should have. It is unlikely, but I may one day find myself starving—if, for example, a natural disaster strikes—and discover that the only foods available (within the time I must eat) are canned foods, which I theoretically may never otherwise purchase. We certainly wouldn’t say I’m already, today, ‘in the market canned foods.’ One could certainly argue that the likelihood of forced-purchase event does in a principled way distinguish the canned-foods market from the health care market. However, consider, that while the relevant time frame for a forced canned-foods purchase is my lifetime, the relevant time frame for healthcare, as Mr. Clement correctly pointed out, is just one year (since insurance is purchased annually). This all begins to sound like an abstruse line of reasoning, but my point is just this: it’s not shocking that many of the justices didn’t intuitively find compelling Verrilli’s claim that because we might need healthcare this year, we are necessarily already in the market, and it would be hard to prove what the correct intuition should be.
A Better Approach to Formulating the Needed Principle
The Commerce Clause enumerates the power of Congress “To regulate Commerce…among the several states….” Now, granted, commerce must exist for it to be regulated, and the Commerce Clause does not state that Congress has the power to create commerce. One might reasonably infer, as General Verrilli seems to, that Congress, therefore, has the power to mandate something of only persons already participating in the market in question. However, the Commerce Clause does not actually state this, and there are special features of the healthcare and health insurance markets that make this otherwise-commonsense inference amenable to analysis and questioning. If so, it may be that there is a principled way of designating particular markets as ones in which it is consistent with the Commerce Clause to mandate certain forms of participation by those not already in the market. It may be that such markets make it necessary and proper for the federal government to mandate such participation, as is allowed by the Constitution’s Necessary and Proper clause. The question is then what, if any, features of the healthcare and health insurance markets could make this reasonable and proper? What features of these markets support a principled special treatment that wouldn’t apply to markets generally?
Of course, the healthcare market is special, because one can neither know nor control if and when he will partake of the market, and when he perforce does, he will impose a cost (an externality) on other market participants if he fails to procure insurance and is unable or unwilling to pay his healthcare cost directly.
The federal government is often well within its constitutional power to impose mandates (or restrictions) on some citizens in order to protect other citizens from physical or financial harm. In the case of healthcare, we have an existing market (commerce is not being created). I submit it is reasonable to believe it’s proper to protect participants in such an already existing market from financial harm, even if it requires imposing a mandate on others, as long, of course, as the mandate is proportional to the harm. It is also necessary in a country that does not have universal healthcare, pending a new, more ingenious and just, means is identified—a situation that obtains for many laws. This suggests a principle which is consistent with the Commerce Clause and with—in fact it rests partly on—the Reasonable and Proper clause.
A Principle for Scalia
The principle I propose is this: “If a person does not know about whether he will partake of a given interstate market; if he does not have control over whether or when he will partake of that market; and if his partaking of that market will impose a cost on participants in that market (across states); then, consistent with the Necessary and Proper clause, it is necessary and proper for the federal government to mandate that the person purchase insurance that will cover the costs he would impose on others if and when he perforce partakes of the given market.”
Notice that this principle does not indicate mandating the person to purchase anything from the healthcare market itself, e.g. of regular checkups that might decrease the risk of eventually incurring catastrophic costs. It requires that he purchase insurance to avoid a situation in which some individuals not participating in the market ultimately perforce impose costs on those in the market.
Notice, too, that, though, this principle may superficially seem ad hoc, because it’s so specific, any proper principle will, because it should only apply to a very limited set of markets, and perhaps only to the one under consideration. It does, however, represent a principled basis for distinction, because it is reasonable and consistent with both the Commerce Clause and the Necessary and Proper Clause.
Finally, I wouldn’t contend that arguing from this principle would likely be strong enough to serve as a basis for overturning a law enacted by congress, but for a judge exercising judicial restraint–something in which I strongly believe–it is I believe a sufficient foundation for refraining from striking down a law duly enacted by Congress.