Politics, et Cetera
A publication from The Political Forum, LLC
Tuesday, December 9, 2014
They Said It:
Civilization is something that must be deliberately willed; it is not something that gushes up spontaneously from the depths of the unconscious. Furthermore, it is something that must be willed first of all by the individual in his own heart. Men who have thus willed civilization have never been any too numerous; so that civilization always has been and, in the very nature of the case, always must remain something precarious. In the words of Rivarol, barbarism is always as close to the most refined civilization as rust is to the most highly polished steel.
Irving Babbitt, Democracy and Leadership, 1924.
ERIC GARNER, THE STATE, AND AN OLD ADAGE.
Another week, another rash of protests. Streets shut down. Bridges closed. Scores of people arrested. Worse yet, at America’s elite institutions of higher learning, signs of real and serious distress are becoming apparent. The delicate flowers that constitute the millennium generation are, it would seem, incapable of processing the events taking place in this country and are thus on the verge of cracking up. Or at least that’s what we assume, given the following portions of a letter sent by Columbia Law School’s interim Dean Robert Scott (and reported by Paul Mirengoff at Powerline):
The grand juries’ determinations to return non-indictments in the Michael Brown and Eric Garner cases have shaken the faith of some in the integrity of the grand jury system and in the law more generally. For some law students, particularly, though not only, students of color, this chain of events is all the more profound as it threatens to undermine a sense that the law is a fundamental pillar of society designed to protect fairness, due process and equality.
For these reasons, after consultation with students in the law school and with colleagues on the law faculty and in the administration, I am taking the following steps to assure our responsiveness and involvement in this particular moment:
- In recognition of the traumatic effects these events have had on some of the members of our community, Dean Greenberg-Kobrin and Yadira Ramos-Herbert, Director, Academic Counseling, have arranged to have Dr. Shirley Matthews, a trauma specialist, hold sessions next Monday and Wednesday for anyone interested in participating to discuss the trauma that recent events may have caused . . . .
The law school has a policy and set of procedures for students who experience trauma during exam period. In accordance with these procedures and policy, students who feel that their performance on examinations will be sufficiently impaired due to the effects of these recent events may petition Dean Alice Rigas to have an examination rescheduled.
On the one hand, we think this is hilarious. The idea that students of this self-described “exceptional community long renowned for its rigor and high standards” might actually be “traumatized” by events that have nothing to do with them and which don’t affect them even remotely is absurd. The notion that this might necessitate postponing final exams is even more so. This, we are afraid, is just another example of the sad state of higher education in this country.
On the other hand, we think that this is an important starting point for a discussion – an ongoing discussion – about the causes and cures of the events that have clearly shaken the nation and affected its collective psyche deeply.
Let us just say, up front, that what happened to Eric Garner was an absolute tragedy. Regardless of one’s beliefs about the use of force by police, the nature of his “crime,” the race of those involved in the incident, and everything else, Eric Garner should not have died that day. His arrest should not have gone down like that. It just shouldn’t have. And whether or not an indictable crime was committed by the New York City Police, the whole thing just stinks. His family, friends, and community have every right to be outraged. Heck, the entire country has a right to be outraged.
At the same time, though, we can’t help but think that most of the outrage being expressed on the streets and bridges of New York City and elsewhere is woefully misguided. When, for example, Robert Scott expresses his beliefs that the “non-indictments” of the police officers responsible for the deaths of Michael Brown and Eric Garner have “shaken the faith” in the grand jury system, he reveals nothing more than his own biases, his own prejudices, his own belief in the importance of unchallenged state power, and his profound, seemingly bottomless ignorance of the nature of the problem that he claims to find so disturbing.
You see, the irony in the protests that have developed in the wake of these two grand jury decisions is that they are being conducted by advocates of the state and the dependents on the state against the agents of the state and, presumably, in an effort to acquire more power for the state. To put it bluntly, this is insane, not to mention exceedingly ill-suited to the task of rooting out the problems that led to the deaths of Michael Brown and especially Eric Garner.
If you ask us, the lessons that should be learned from the Eric Garner case and that would be most likely to provide positive effects on the political system going forward are those that were made just over a decade ago by our old friend Rich Galen in his world-renowned cyber-column “Mullings.”
For those of you who may not know, before he was a well-known cyber-columnist, Rich held many other interesting and important positions in Washington, including a stint as the Executive Director of GOPAC, a political organization started by Pete DuPont and refined by Newt Gingrich to raise money for the development and election of young, up-and-coming Republican politicians. It was in this capacity that he learned the ins and outs of political fundraising. And after the bipartisan campaign finance reform bill was passed in 2002 and signed by President George W. Bush, he shared his expertise by explaining in a handful of columns why this reform would be pointless. In turn, we think that his thoughts on that subject can help us to explain why the demands of the Eric Garner protesters are equally likely to be pointless.
Now, before you holler to your wife, kids, or the guy in the next office that Soukup and Melcher have finally (and inevitably) lost it, bear with us a minute while we try to make sense of this.
You see, way back when the McCain-Feingold version of campaign finance reform was all the rage in Washington, back in those halcyon days when banning or restricting soft money was thought to be the key to producing a glorious world of elections freed from the malign influence of money, Galen provided the antidote to this specific kind of wishful thinking. Having far more experience in the field than most of the politicians involved in pushing the law and all of the journalists doing likewise, he began by noting that campaign donors – which is to say everybody in the country from Joe Sixpack up to Tom Steyer – have both the Constitutional right to express their beliefs via campaign donations and an inarguable need to make themselves heard, given the massive and otherwise inaccessible power that the government holds over the lives, livelihoods, and well-being of every man, woman, child, and business in the nation.
Because of this need, he warned that changing the rules would neither slow nor stop the flow of donations, but would simply change the manner in which they are donated. Create some rules, and donors will get around them. Add more rules, and donors will again alter their tactics. It’s a never-ending process. Galen put it this way in a 2005 piece that proved the authenticity of his prophecy:
There is an old adage in Your Nation’s Capital which states:
“Any reform will have exactly the reverse of its intended effect: It will turn a problem into a crisis and a crisis into a disaster.”
Ok. That is not an old adage. I just made it up. But it is, nevertheless, true.
The current crisis-trending-toward-disaster over the filibuster of judicial nominees is the direct result of the campaign finance laws which were designed to solve the problem of soft money in the federal political process. . . .
In late 20th Century America a “petition” was delivered in the form of a check with an amount including multiple commas and many zeros delivered to one or another of the national political committees with a nice note insuring the makers of laws and the issuers of regulations knew exactly from whom the “petition” had been received.
This was what became known as soft money.
The problem with soft money wasn’t that it was deliverable in unlimited amounts; but that it was delivered to Republican and Democratic national committees who had a direct pipeline to Members of the House and Senate (the makers of laws) and, depending upon who sat in the Oval Office, high-level members of the Administration (the issuers of regulations).
The conduit for this soft money, the Washington lobbyists, made their money delivering these petitions, then following up with the appropriate makers and issuers with in-person visits to make certain that the particular “grievance” was being adequately “redressed.”
This highly evolved process worked equally well for Big Business, Big Labor, Big Liberal and Big Conservative Organizations. . . .
At the time, the proponents of campaign finance reform claimed that soft money was a problem which had to be fixed, so they made it illegal for political parties to troll for, accept, or spend it.
Those who were opposed to the law claimed that soft money would still find its way into the process, but it would flow through (and get stuck to) political hands over whom (unlike the major Democratic or Republican committees) neither Members of the House and Senate nor the Administration have any control, thus turning a problem into a potential crisis. . . .
Reforming the problem of soft money led to the crisis of outside interest groups taking over the national political debate which has led directly to the pending disaster of the filibuster fight in the US Senate.
Thus, is an old adage born.
The point of all of this that politics is no different than anything else. If you want to solve a problem, you have to address the root, not the symptoms. In fact, addressing only the symptoms will merely exacerbate the whole mess. True cause-identifying and cause-ameliorating reform is incredibly rare in politics, if for no other reason than it requires clear-thinking and boldness, two characteristics that are in rare supply amongst the denizens of our political class. Hence, political reform typically does indeed favor treating symptoms over root causes, rendering it predictably disastrous in most cases.
Campaign finance reform is, of course, but one example of this principle at work. It just happens to be a significant, obvious, and repeatedly messed up example. The political “reformers” have been trying to “get the money out of politics” for more than four decades now. And not only do they always fail, but they inevitably make the problem worse, as Galen’s new-old adage explains. The reason is, of course, that the involvement of money in politics is merely a symptom of the root problem which is the involvement of politics in money, although no one in politics will ever say so, largely because to address that problem would mean reducing the power of those in politics. And why would they want that?
About a decade ago, Allan Cigler, a prominent expert on interest group politics, a professor of political science at the University of Kansas, and, as such, the long-ago undergraduate advisor to one half of The Political Forum, explained to folks at the Washington Post that lobbying and spending money on political donations is a necessity in contemporary American political life.
“Much of lobbying today is watching all the change that’s going on in Washington,” Cigler told the Post’s Jeffrey Birnbaum. “Companies need more people just to stay apprised of what regulators are doing.” Companies need to stay apprised. Union members need to stay apprised. Taxi drivers need to stay apprised. Farmers need to stay apprised. Everyone needs to stay apprised of what the ever-growing bureaucracy is doing, saying, and regulating, and which politicians might be most likely to have a positive influence on the outcome of the legislative and regulatory processes. That’s just the way it works. Washington has its proverbial finger in every pie, and the people who put “the money in politics” are, for the most part, simply trying to make sure that said finger is delicately and not too destructively manipulated.
Given this, the obvious answer to the question of money in politics would be to reduce the power that Washington has to affect every aspect of every man, woman, and child’s future and thereby to reduce the need for lobbying, donations, and all that unpleasant money. In lieu of such an obvious solution, though, reformers continuously pile new hoops through which to jump upon other new hoops through which to jump, making it ever more difficult but nonetheless still imperative to jump through all of them. And “Galen’s Adage” is thus proved.
And this brings us, at long last, to the broader point of this piece, which is that the same basic principle – the principle behind Galen’s Adage – applies in the deaths of Michael Brown and Eric Garner. The crowds out protesting want all sorts of reforms implemented to prevent this type of thing from happening again. They want grand jury reform, which is to say that they want greater prosecutorial discretion in cases where police shoot civilians. They want broader legal reform, which is to say they want fewer black men arrested and incarcerated. They want police reform. They want more minority hiring. They want better or different training with respect to the use of force. They want police to be trained to “respect” black lives as much as white lives. They want a special prosecutor to investigate the current cases. They want bans on choke-holds. In short, they want myriad “reforms,” all of which seem perfectly reasonable and all of which at least sound as if they will help to address the concerns of the black community.
But they won’t.
The reason they won’t is because all of these concerns, while legitimate, are mere symptoms of the greater problem. And addressing them discretely will not only fail to solve the problem of black men dying at the hands of police, but will likely exacerbate it.
Let’s consider, for a moment, the question of grand jury reform. The protesters who are unhappy with the decisions in the Brown and Garber cases are unhappy specifically with the decision of these grand juries not to indict. In response, they’ve argued that transparency needs to be increased and prosecution decisions need to be taken out of the hands of grand juries and local prosecutors and placed in the hands of some other, presumably impartial official such as a special prosecutor or the state Attorney General.
All of this sounds fine, in theory, except for two little problems. First, the Michael Brown grand jury may have been the most transparent one in ages. Witnesses were allowed to testifyrather than merely have their testimony summarized by police. Virtually all of the proceedings were documented and released nearly immediately to the public. The entire process was open and visible to the entire world. And yet no indictment was obtained. The second problem addresses the specific proposed “reform” that would limit or end the grand jury system’s biases by giving greater discretion to various prosecutorial professionals. One again, while it might sound like a neat idea to grant greater power to dissociated “professionals,” it would bring back the much worse problem that the grand jury was established to avoid, that being to protect the people against overzealous or unreasonable prosecution by the all-powerful state.
Harvey Silverglate, a well-known civil rights lawyer and author who has a regular column in the Boston Globe, has, over the last couple of weeks, written a couple of exceptionally good and powerful columns with respect to this issue. In a December 5 New York Times piece, he put it this way:
One of the glories of our criminal justice system is that everyone – the high and the low, the strong and the weak – is charged and tried in the same system, before jurors of their peers, with “peers” defined as a randomly selected cross-section of the voting public. We take this for granted.
However, when an unpopular but ostensibly privileged individual – a police officer, for example – is absolved by the system, there are calls for changing that system, even abolishing certain institutions that are designed to protect liberty. It is very destructive to our laws and legal institutions when the dissatisfied attempt to abolish or curtail these institutions because a certain preconceived result is not achieved. The creation of “special prosecutors” to handle investigations of law enforcement officers is a bad idea and bound to produce unanticipated consequences.
It has taken centuries to develop, via the common law system that we Americans inherited and then improved upon, an investigatory system that protects the rights of targets and witnesses. That system – a grand jury – works imperfectly, but recent high-profile examples actually show progress. In Ferguson, at the conclusion of the grand jury’s work, all of the evidence and the transcript of the testimony were released to the public. Moreover, in the grand jury proceedings regarding the deaths of Michael Brown and Eric Garner, each accused police officer testified in his defense. This was an unusual – but not unprecedented – occurrence, and this opportunity should be afforded to the average defendant. The openness of the Ferguson grand jury and the inclusion of defense testimony in New York should be a model to guide grand jury reform, not an excuse to abolish this important institution designed to protect liberty.
Abolition of grand juries, and their replacement with some kind of prosecutorial czar, would be a foolish backward step in our states’ and nation’s attempts to perfect the goal of equal justice for all. Radical changes in law aimed to get the perceived “bad guy” of the day have usually had disastrous long-term consequences.
Silverglate, we note, is probably best known for his books and especially his highly regarded 2009 release, Three Felonies a Day: How the Feds Target the Innocent. As the title suggests, in this tome, Silverglate argued that the vast expansion of federal laws and regulations over the last few decades, as well as the vagueness of many of those restrictions, has turned us all into criminals; hence, his claim that the average American adult commits three felonies every day, wittingly or unwittingly. And as criminals, we are all potentially at the mercy of the state.
In a recent column, Stephen L. Carter, a “law” columnist for Bloomberg View and a law professor at Yale, made a similar point, which he put this way:
The legal scholar Douglas Husak, in his excellent 2009 book “Overcriminalization: The Limits of the Criminal Law,” points out that federal law alone includes more than 3,000 crimes, fewer than half of which found in the Federal Criminal Code. The rest are scattered through other statutes. A citizen who wants to abide by the law has no quick and easy way to find out what the law actually is — a violation of the traditional principle that the state cannot punish without fair notice.
In addition to these statutes, he writes, an astonishing 300,000 or more federal regulations may be enforceable through criminal punishment in the discretion of an administrative agency. Nobody knows the number for sure.
Husak cites estimates that more than 70 percent of American adults have committed a crime that could lead to imprisonment. He quotes the legal scholar William Stuntz to the effect that we are moving toward “a world in which the law on the books makes everyone a felon.” . . .
Part of the problem, Husak suggests, is the growing tendency of legislatures — including Congress — to toss in a criminal sanction at the end of countless bills on countless subjects. It’s as though making an offense criminal shows how much we care about it.
Well, maybe so. But making an offense criminal also means that the police will go armed to enforce it. Overcriminalization matters, Husak says, because the costs of facing criminal sanction are so high and because the criminal law can no longer sort out the law-abiding from the non-law-abiding. True enough. But it also matters because — as the Garner case reminds us — the police might kill you.
What all of this tells us, we think, is that the protesters in the Garner and Brown cases, while well-intended, are inevitably doing more harm than good. They’re out on the streets voicing their displeasure with the police and with the grand jury system, and with perceptions about racism in law enforcement. But none of these things is the real problem here. The real problem is the encroachment of the state on the sphere of the individual. Or, to be more specific, once upon a time the government existed to protect and ensure the rights of its citizens, but today, it exists to protect and ensure its own the privileges and those of its operatives and its collaborators.
A variety of conservative commentators and observers – from Rush Limbaugh to Senator Rand Paul – have noted that the reason that Eric Garner was even approached by police on the fateful day of his death was because both the city and state of New York had a vested financial interest in stopping his “crime,” i.e. selling “loosies,” or individual cigarettes. You see, the combined state and local taxes on a pack of cigarettes in New York City is the second-highest in the country at $6.86. Garner was selling single cigarettes and thus avoiding the taxes, and he had to be stopped.
But the taxes aren’t the half of it. These taxes, at least, are levied by bodies elected by and thus, in theory, accountable to the people. But it happens that there was another player involved in the apprehension of his “criminal,” that being – are you ready for this? – the federal Food and Drug Administration (FDA). In theory, the FDA, like all federal bureaucracies, is accountable to its overseers in Congress. In in practice, though, it is accountable to no one. And yet, according to the FDA’s own web site, Eric Garner’s actions were in violation of federal law and thus a serious criminal offense. To wit:
On June 22, 2010, the Food and Drug Administration (FDA) published a rule that restricts the sale, distribution, and marketing of cigarettes, cigarette tobacco, and smokeless tobacco products to protect children and adolescents. The rule is required by the Family Smoking Prevention and Tobacco Control Act and is intended to protect kids by making tobacco products less accessible and attractive to them.
Check photo ID of everyone appearing under age 27 who attempts to purchase cigarettes, cigarette tobacco, or smokeless tobacco.
Only sell cigarettes, cigarette tobacco, and smokeless tobacco to anyone age 18 or older. **
Only sell cigarettes, cigarette tobacco, and smokeless tobacco in a direct, face-to-face exchange. ***
Do NOT break open cigarette or smokeless tobacco packages to sell products in smaller amounts.
Do NOT sell cigarette packages containing fewer than 20 cigarettes.
Do NOT sell single cigarettes, also called “loosies”.
Do NOT give away free samples of cigarettes.
Do NOT give away free samples of smokeless tobacco except from a “qualified adult-only facility.”
Do NOT sell flavored cigarettes or flavored cigarette tobacco (other than menthol).
The police, of course, were the ones who killed Garner. But the police are not an independent entity. They are the shock troops of the state. They are the enforcers of the state’s prerogatives. In short, the police do only that which the state directs them to do.
Now, one may counter that police also function to “protect and serve” the community, which is also true. And we know a great many law enforcement officers who do a magnificent job under exceptionally difficult circumstances. Still, Eric Garner was arrested for an offense that was as trifling as it was innocuous. He ran afoul of the city revenue collectors and the shopkeepers who obeyed the law (and thus agreed to pay the revenue collectors) and had to be stopped. Michael Brown, recall, was stopped by Officer Darren Wilson not for robbing a convenience store, but for jaywalking, another crime of rather limited weightiness and urgency.In a sense, the attempted arrest of Michael Brown proves the purpose and value of “broken windows” policing, which is to say that he was stopped for the trivial crime of walking in the street and it turned out that he was connected to a much more significant crime. At the same time, the arrest of Eric Garner suggests that even the “broken windows” tactics that saved New York and turned it into the safest big city in the world can be abused by the overreaching and overweening state. Garner was hardly a criminal. He was a threat to the state’s arbitrary and suffocating power and nothing more.
In the end, we can’t help but come to two conclusions about the deaths of Michael Brown and Eric Garner and about what they tell us about the future of the law and the state in this country.
First, we believe that the so-called “libertarian moment” is based in large part on willful ignorance about the state and its insatiable appetites. As you likely know and as we have mentioned before, many observers believe that the current political epoch will be remembered as the spark that prompted the renewal of true liberty in this country and birth of truly libertarian governance. Much of this optimism springs from the fact that many states are adopting longtime libertarian agenda items and are thus appearing to increase significantly the liberty of their residents. This is, we think, an illusion.
Among the key components of this so-called libertarian moment are the increasing approval of both sexual freedom and the license to manage one’s behavior as he or she sees fit with respect to the recreational use of marijuana. Sexual freedom is irrelevant to this discussion, though we have covered it before. As for the legalization of marijuana, we believe that the arrest and death of Eric Garner indicate why this is unlikely to increase the much heralded freedom of the individual.
Note that this year alone, Colorado will take in more than $10 million in taxes from the sale of marijuana, which is to say that the government of Colorado will increase its size and reach by $10 million. Recall that Eric Garner was killed selling a product that was legal and that his real crime was depriving the state of its revenue. Those who want to celebrate the “legalization” of marijuana in Colorado and Washington would do well to remember that those states now have a vested financial interest in the sale of marijuana, just as every state – including the state of New York, where Eric Garner was killed – currently has with respect to the sale of cigarettes. They now have increased revenues, which provide the means by which to expand the power of the state. And they also now have a serious reason to harass and police sellers.
When it comes to marijuana, there is a difference, we think, between “decriminalization,” and “legalization.” The former increases individual liberty and reduces the power of the state. The latter, by contrast, increases the power of the state and increases its financial interest in marijuana commerce. It is only a matter of time, we would guess, before people are arrested or perhaps even accidentally killed for selling pot without the approved state license. Given the new stakes, we expect that the interaction between the state, its enforcers, and the people will actually increase over time and will, eventually, outpace the interactions that took place before legalization. And as Eric Garner’s death demonstrates, the greater the number of interactions between the state’s enforcers and the people, the greater the likelihood of the state’s interests being enforced overzealously. In short, we think that marijuana legalization will prove a net loss to individual liberty.
More importantly, we suppose, and more to the point, the protesters who are blocking the streets and bridges of New York and other cities in the hope of winning “reforms” that will prevent future deaths like those of Michael Brown and Eric Garner and decrease the intrusiveness of the government are likely to be sorely disappointed. Like the libertarians who supported marijuana legalization, they may see their proposed reforms turned into law, but they will also see them backfire, handing over greater power to state and its less-than-exemplary political class.
As we noted earlier, political reforms are rarely the solution to any of society’s problems. In the overwhelming majority of cases, political reform is an illusion, a placebo designed to ameliorate public concern while doing nothing to address the broader pathology. Eventually, of course, the placebo effect wears off and the symptoms the reform was intended to ameliorate return, often with greater potency than before.
We suspect that the bubbling over of tensions surrounding these cases will have two broad effects. On the one hand, the nation’s densely populated urban areas, where fear of and anger with the police is palpable, will see a variety of reforms initiated. The net effect in those cases will all but certainly be negative. The state will grab more power, even as the forces it intends to use to enforce its prerogatives are made less capable of doing so evenhandedly. The police will be afraid of the people. The people will be afraid of the state. And eventually, chaos will reign. As a wise man once said, “Any reform will have exactly the reverse of its intended effect: It will turn a problem into a crisis and a crisis into a disaster.”
At the same time, however, the wisdom of the Founders will be evident in less densely populated areas, where the benefits of federalism will enable the citizens to maintain the status quo or even to acknowledge the risks associated with increases in state power. In short, then, the balkanization of the country will continue apace and perhaps even accelerate. And in two years, when we reach the conclusion of the presidency of the man who first burst onto the national stage proclaiming that “there is no Blue America and no Red America,” the two will actually be further apart than they have been in well over a hundred years, both in terms of state power and in terms of societal outcomes.