“Efficiency,” the Myths of Markets, Minimum Wages, and a Universal Basic Income

For brief descriptions of and links to recent posts, click here. For an inverse-chronological list with links to all posts after January 23, 2017, click here. For a subject-matter index to posts before that date, click here.

With the slow demise of churchgoing, capitalism is becoming the US’ national religion. Its foundational mythology helps maintain its grip on the nation’s popular imagination and politics. Among the most durable myths are the notions of “efficiency” and market self-regulation.

Just ask Alan Greenspan. He once was a universally lauded modern economist familiar with all the sophisticated math of his field. Yet as Fed Chair he let the myth of self-regulation promote the Crash of 2008. He later confessed his error in testimony before Congress.

Aided by seductive abstract thinking, generations of students have assimilated these myths. They are the catechism of capitalism. But they are too easily generalized far beyond their fidelity to facts and data.

Like the myths of most religions, from Rome’s Vestal Virgins on, these tenets of modern economics somehow manage to support and entrench the interests of the rich and the ruling class. They have fostered the most extreme economic inequality in human history, in which eight men won half the world’s wealth. Their failures have been responsible for workers’ rebellions throughout history, and for much of Trumpism today. Let’s analyze.

To set up our analysis, let’s begin with a few simple observations. In modern economics, the notion of “efficiency” nearly always boils down to the lowest possible price. If you can produce anything at a lower price, you’re increasing “efficiency.” The lower price may come from cheaper means of production, i.e., from brilliant new technology. It also may come from squeezing workers, i.e., paying them less and making their work harder and longer, under less safe and more miserable conditions. Whatever the means to achieve it, economists use the very same word to describe the result: “efficiency.”

As for self-regulating markets, Adam Smith famously wrote of the “invisible hand.” He had in mind a market for so-called “fungible” goods—indistinguishable, interchangeable physical products like apples, oranges, nuts or bolts. In such a market, with dozens or hundreds of sellers of much the same thing, the sellers that can offer the lowest prices can stay in business by winning in competition, and the “market” will become more “efficient,” offering lower prices. Those sellers, in turn, will put pressure on their suppliers to lower their prices, and so on up the supply chain.

The paradigm here is Wal Mart, which is famous—or infamous, depending on your point of view—for squeezing its suppliers. The result is pressure for lower prices and lower wages all the way up the supply chain to basic raw materials.

It doesn’t take great insight to see that this mechanistic, abstract model fails to account for an important reality. “Labor” is not just another a fungible product, because workers are people. It’s not like the other classic “factors of production,” namely, raw materials, land and capital, because only workers are alive and sentient. Only they can vote, rebel or storm the Capitol.

Even from a mechanistic perspective, workers are different. Unlike raw material, land and capital, they are also consumers. As such they are the source of much of the demand—about 70%, in fact, in our economy today. The less they have to spend and the more miserable are their lives, the less general demand there is for goods and services, regardless of their “efficiency” of production.

In an economy where workers as “consumers” create most of the demand, neglecting this negative feedback loop is a monumental conceptual error. In the last decade it has produced cheap Chinese products at Wal Mart that so-called “knowledge” workers can easily afford, but that the workers who used to make them can barely afford because they now work at Wal Mart or its suppliers.

You can call this a Catch-22. You can call it, as I do, the “Wal Mart Fallacy.” Or you can call it a “race to the bottom” in prices and wages. But in a democratic society that’s supposed to value workers as people, this system is not just a negative feedback loop. It’s also inhumane. Yet it’s the very same conceptual error that drove globalization.

In globalization, the primary means of realizing “efficiency” was not brilliant new technology. Instead, it was (for us Americans) much lower wages paid to workers in China and Mexico. Inside the UK, it was lower wages paid to immigrants from places like Poland and Slovenia. The result was unemployed or underemployed—and certainly underpaid!—native workers in the US and the UK. Trump and Brexit followed, as night the day. (The much-vaunted elevation of a billion out of poverty abroad focused only on the positive feedback loops there, neglecting the consequent negative feedback loops at home.)

Something very like this story happened at least twice before. The first time involved the mechanization of weaving with aid of mechanical looms in England in the early nineteenth century. Big, mechanized textile factories forced independent weavers and small-shop owners out of business, forcing them into penury or regimented employment under others’ control. The result was a violent uprising that destroyed many mechanized looms.

The movement’s participants took the name “Luddites.” The name has come to stand for any workers’ movement opposed to new technologies that bosses exploited in such a way as to make workers’ lives more precarious and miserable. Today it has a decidedly negative connotation, much as had the name “Neanderthal” before we discovered that many of us today carry Neanderthal DNA.

The second US instance of ignoring workers as people occurred more than a century later. As mechanical manufacturing consolidated on the US East Coast and in the Industrial Upper Midwest, it herded workers into tiresome factories, with endless rows of sewing machines or machine tools. Along came a subgroup of bosses called “efficiency experts”—a now-discarded title—who told workers how long they had to work, how little time they had for breaks and when (if at all) they could take lunch or go to the toilet.

Many of these workers had once labored at home, or in small shops of so-called “cottage” industries that they partly owned. Mechanization forced them into an ant army in a dystopian factory landscape, wage slaves in businesses owned by others. They worked long hours with every aspect of their working lives monitored and controlled, down to bodily functions.

Not surprisingly, they were not happy. Their common discontent produced the progressive labor movement of the early twentieth century. It strengthened greatly after unregulated capitalism and greed caused the Great Depression.

These problems were not confined to the United States. They affected all developed industrializing nations. But the US owned the twentieth century because it invented the most practical solutions.

Russia and later China adopted Communism, which failed in both countries. Germany and Japan tried fascism—essentially a militarized version of slavery in which ultra-nationalism and jingoism motivated native people to enslave others. It took the most terrible war in history to defeat it, but fascism failed, too, although it had a resurgence in Latin America and is now making a comeback worldwide.

In the last century at least, we Americans were smarter than that. Rather than adopt grandiose abstract plans that ignore workers’ needs and humanity, we made small, targeted changes that actually worked. The first was quite simple: we let workers form unions to bargain collectively for better pay and better lives.

Our second practical solution ironically came not from workers, but from a budding oligarch, Henry Ford. He was an industrial tyrant, a fierce anti-Semite, and a bit of a know-it-all. But he was also a brilliant engineer and a practical man. He figured that, by raising his workers’ pay unilaterally, he could make them more content with their hard, tedious assembly-line work. More important still, he could let them afford to buy the cars they made.

As I’ve explained in more detail in another post, that simple virtuous circle—what engineers call a positive feedback loop—helped create history’s most prosperous consumer society yet. Higher wages bred worker satisfaction, greater demand and purchasing power among ordinary laborers, yet more jobs for people who make things, and a thriving consumer economy.

Today, Ford’s contribution to good economic practice is all but forgotten. Our management class, its GOP lackeys, and a host of so-called “conservative thinkers” have inveighed relentlessly against higher minimum wages, arguing that they kill jobs. These worthies continue to argue this despite increasing evidence that minimum wages don’t kill jobs. Meanwhile, 70% of our people support them, and mainstream economics now does, too.

In Ford’s day, his own social class lined up against him. A clueless Supreme Court of Michigan nixed his plan to withhold dividends to shareholders, and instead invest in bigger, more efficient plants to make cars cheaper and even more accessible to the masses. The court infamously ruled that dividends to shareholders came first. Today, a glimmer of understanding has come from our own Business Roundtable, which recognized, at least in theory, social goals more important than profit. Whether that recognition was more than clever public relations remains to be seen.

At then end of the day, the most “efficient” labor system is slavery. It reduces the cost of labor to bare upkeep, a few bullwhips and cages and the straw bosses’ pay. If you really believe in “efficiency” as just lowering the cost of labor so businesses can better compete in an abstract “free market,” then slavery is for you.

Of course we abandoned slavery, but only after our most terrible war on our own territory. Yet we approach something like slavery today for eleven million undocumented immigrants. Utterly lacking legal status, and in fear of being deported with a single phone call, they have no practical means to exercise whatever “human rights” they may have as aliens. (César Chávez’ United Farm Workers union depended on immigrant workers’ legal status under the now-discontinued bracero program.)

We Americans tried slavery, in about half of our territory, for two and a half centuries. But eventually the “better angels of our nature” decided it was inhumane and incompatible with democracy. Eventually, I hope we’ll also jettison the idea of keeping a labor force of millions of serfs made powerless by realistic fear of instant deportation. That, too, is incompatible with our democratic system, not to mention our credo that “all . . . are created equal.”

Fuzzy and seductive abstractions like “efficiency,” “liberty,” “small government” and “free markets” aside, in our rough two-and-a-half centuries of national existence, we have discovered only two good, practical ways to maintain reasonable living standards for workers and a robust consumer economy. The first is collective bargaining by workers. The second is periodic increases in wages to match inflation and broader societal progress, along with regulations improving worker safety and working conditions. No other means have we as a nation—or any other nation—tried successfully.

Today, globalization makes collective bargaining difficult if not impractical. Globalization produced Trumpism because American workers have no practical way to bargain collectively together with Chinese or Mexican peasants taking their factory jobs abroad. For a variety of reasons, international unions just aren’t possible, although at some hypothetical future time they might be. “Workers of the World, Unite!” is today just a distant dream and a slogan lost in the mists of history.

As a practical matter, the oligarchs still control most of our politics. Few, if any, have the vision of Henry Ford. So random, haphazard raises in minimum wages by individual oligarchs like Jeff Bezos are not the solution to workers’ justifiable unrest. The only real solution is federal mandates for minimum wages. That’s why a new minimum, $15 per hour, has been decreed for federal workers only, and its broader application is currently under discussion. This dismal time, in which a pandemic has caused an echo of the Great Depression that ended child labor and produced minimum wages generally, may be a good time for progressives to strike while the iron is hot.

The problem of supporting adequate lives for workers is just another example of the “paradox of the commons” familiar to environmentalists. If business firms incur no costs for polluting our environment, and if they can save money by polluting, the ones that pollute most will be able to offer the lowest prices for their wares. By being the most “efficient,” they will prevail in competition, and every firm will have a perverse incentive to pollute.

Just so, if firms can lower their costs and become more “efficient” by squeezing their workers, they will do so, and workers everywhere will suffer from this “race to the bottom.” So will our consumer economy, which depends on the pay of workers, in their capacity as consumers, to drive 70% of demand. When firms export jobs to employ workers for less pay and cheaper conditions, another result is the hollowing of our national industrial, technological and eventually scientific base.

That’s precisely what happened with globalization. Firms raced to move jobs to China and Mexico to become more “efficient.” As a result, American workers suffered unemployment and underemployment, and the American consumer economy became less vibrant and resilient. The consumer economy as a whole became “polluted” by unemployment and reduced demand for goods and services, for which no firm striving for “efficiency” was held responsible. Only strong collective bargaining or government-imposed minimum wages could save the “commons” of worker welfare and enhanced consumer demand, just as only regulation or artificial pricing mechanisms like “cap and trade” could and can save our environment.

But as practical people (if we still are!), we Americans ought to be looking for even better solutions that we’ve found in the past. Here Andrew Yang’s “universal basic income” (UBI) is worth considering. It directly addresses the core question, which minimum wages address only incidentally: what is the minimum standard of living that any citizen of the world’s still-wealthiest nation has a right to expect?

The current deadly pandemic has made tens of millions jobless. Without relief, it promises to make many of them homeless. So it has raised that question in stark relief.

We now understand more about national economies than did the last century’s ignorant armies clashing by night over Communism, socialism, fascism and capitalism. We now know two vital, practical economic truths. First, minimum living standards for workers avert social cataclysms like the French Revolution, the Russian Revolution, the Great Depression, and the Reign of Trump with its Capitol Insurrection.

Second, assuring everyone a minimum standard of living is not just charity or a gift. The money that all get will circulate immediately in the economy, making it more robust. The same cannot be said of the great inheritances and speculative investments of the wealthy, which remain locked up in bank and brokerage accounts, often offshore. In other words, assuring a minimum standard of living for everyone makes everyone better off, including those lucky enough to find work in addition to, or even in lieu of, a basic income. The basic-income recipients’ demand for goods and services helps raise everyone’s wages.

In a different time, Andrew Yang might have been another Henry Ford. He is, after all, a successful entrepreneur himself. But times have changed. Today Yang’s wealth and businesses are nowhere near as big a part of our national economy, let alone our national imagination, as Henry Ford’s were in his day. So Yang can’t implement his ideas directly; he must sell them to us as voters.

It’s not as if Yang’s ideas are wholly unprecedented. Alaska—with its small population and lucrative oil leases—has a form of “negative income tax.” It gives every legal resident a payment from its Alaska Permanent Fund of $1,600 a year (on average, inflated to 2019 dollars). While that’s nowhere near enough to live on for a year, studying its effects might help economists debunk the canard that something like Yang’s UBI will encourage large segments of the population to smoke pot and listen to music all day, rather than doing anything productive or useful with their lives.

What would a national UBI cost, and what would it provide? Allotting $12,000 per year to every household now earning less than $25,000 per year would cost us $12,000 x 128 million x 0.28 = $420 billion. That’s 45% of our estimated defense spending for fiscal year 2020-2021. It’s less than one-third of the cumulative effect of Trump’s 2017 tax cut.

What general benefits would this relief/extra income provide? First, since those households spend virtually every penny they earn, it would provide a direct, permanent economic stimulus to American businesses that sustain basic living, including farms, supermarkets, landlords, gas stations, drugstores, etc. Second, it would promote economic stability over time, in good times and bad, by ensuring a stable level of minimum economic activity. Third, over time it could replace all the byzantine forms of welfare in the various states, including SNAP or “food stamps,” thereby improving states’ budgets and relieving residents of a maze of complex, confusing and often unfair rules. Fourth, if calibrated to the regional cost of living, it could reduce incentives for internal migration and improve social and economic stability, allowing people to build more stable and enduring communities. Finally, it could reduce, if not resolve, the problem of homelessness by allowing everyone to afford reasonable habitation somewhere.

The devil, as always, is in the details. But we ought to consider adding something like a UBI to our very small box of practical tools to keep workers content and economically active in an ever-changing economy.

The only other practical tools we know are collective bargaining, oligarch enlightenment à la Henry Ford, and minimum wages. Collective bargaining won’t be possible until, if ever, globalization finishes—an outcome now increasingly unlikely due to supply-chain disruption, nationalism and the pandemic. No one today, even Jeff Bezos, has the clout to affect the national economy like Henry Ford. So if we want to maintain a robust economy at all times, if we want to avoid unnecessary economic instability, keep workers content, and not have another French Revolution or Capitol Insurrection, all we’ve got to work with are minimum wages and some day a UBI.

We’d better start thinking more seriously about them, and stop dreaming about seductive abstractions like “efficiency” and “free markets,” which once gave us slavery and today justify our keeping eleven million undocumented serfs, not to mention an industrial base that can’t even make its own nuts and bolts. Surely, as a practical and a just people, we can do better.

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Kill the Filibuster!

For brief descriptions of and links to recent posts, click here. For an inverse-chronological list with links to all posts after January 23, 2017, click here. For a subject-matter index to posts before that date, click here.

For the principal post on killing the filibuster, click here.

Circumventing the Filibuster In the principal post below, I argued for abolishing the filibuster. The reasons are powerful. It’s not part of our Constitution and never has been. It’s antidemocratic. Although its original intent was only to delay legislation, modern Congresses have grotesquely abused it, converting it into a routine minority veto. In the years of our new century, minorities of 41% or greater have used the filibuster to veto legislation at 142 times the average rate from 1917 to 1972. The new Democratic Senate can eliminate filibusters with a simple majority vote. But two Democrats— Joe Manchin of West Virginia and Kyrsten Sinema of Arizona—have said they would not vote to abolish it. Former majority leader Mitch McConnell also has reportedly been trying to extract a promise from current Majority Leader Chuck Schumer not to abolish it. McConnell is apparently leveraging his power to bargain over selecting the chairs and committee assignments in an evenly divided Senate, with Vice-President Harris presiding to break tie votes. As usual, he’s trying to play hard ball. Of course Leader Schumer should not give in. If he made the promise, he would give up his chief leverage over the Republican caucus. Fortunately, there are ways to circumvent the filibuster that may not have been fully explored. Bills appropriating money can avoid the filibuster by using a so-called “budget reconciliation” process. But what about bills that don’t involve money, on such subjects as mandates for mask wearing and social distancing or protection of citizens’ voting rights? One answer is that recalcitrant states badly need money for pandemic relief and economic recovery. Congress’ power to impose conditions on its grants of money is, according to an authority, “well established.” The “conditions must be related to the federal interest for which the funds are expended[,]” and Congress must not force unconstitutional activities on the states. If they meet these requirements, the conditions are constitutional. For example, Congress could condition grants of money for vaccines and pandemic relief on a state imposing mask-wearing and social-distancing mandates on its people in accordance with federal guidelines. Or the conditions could include specific benchmarks in testing, contact tracing and quarantining . These conditions are “related to the federal interest” in reducing the spread of and suffering from the pandemic. They don’t require unconstitutional activities because states have broad power to restrict their citizens’ liberty for the sake of public health. As Ezra Klein has argued, Democrats’ most important agenda item, after pandemic relief and economic stimulus, is making sure that every citizen has the ability to vote and vote easily. That’s an item on which all else ultimately depends. To ensure that ability, Congress could condition grants to states on their providing: (1) voter registration by mail; (2) automatic registration upon receiving a new or renewed driver’s license or registering a car; (3) universal voting by mail upon request, without any reason; (4) early voting for weeks or a month before each election ; and (5) election days that fall on a Sunday or public holiday. On what kind of grant could Congress impose these conditions? Pandemic relief might be too big a stretch. So might a general economic stimulus. But grants for the purpose of buying voting equipment, supporting electoral staff, and securing the vote against electronic hacking and physical interference no doubt would be “related to the federal interest” in secure and proper voting. In addressing our racially biased incarceration epidemic, there are two ways to circumvent the filibuster. For federal offenses, the President could issue an executive order setting up a commission within the Department of Justice to review criminal convictions and sentencing for compliance with minimum requirements for controlling racial bias and avoiding excess. In cases that violate those requirements, the President could use his unreviewable power to pardon the convict or commute the sentence. For state offenses, Congress could condition grants to states for prison construction and maintenance, and for law enforcement generally, on their setting up and following similar state systems, with similar minimum requirements, for pardons or commutations by their governors. So constrained, state systems might even be preferable to DOJ review of state actions, as they would avoid control by “outsiders” and encourage “buy in” by state officials. Similar approaches are possible in fighting global warming and pollution arising from electric-power generation. Congress could, for example, pass a $ 3 trillion clean-energy bill, providing money for states and localities to procure and install solar arrays, windmills, energy-storage devices and a smart grid to connect them. Instead of imposing effluent controls on existing coal- or gas-fired power plants, Congress could condition these grants of money—and all the good jobs they would fund—on states phasing out their polluting fossil-fueled plants pari passu with the federally funded renewable sources of electric power, kilowatt for kilowatt. Of course it would be best to kill the filibuster. It’s an absurdly outrageous insult to majority rule, and it’s been absurdly abused in practice, especially recently. But the best need not be the enemy of the good. In this terrible time, the federal Congress is in the driver’s seat. Unlike state legislatures, most of which must balance their budgets each year, Congress can borrow to spend. The states desperately need money, because their economies are collapsing under the pandemic’s pressure. Coincidentally, Congress’ exercise of its unique ability to borrow and spend is free from the filibuster under the special Senate rules for “budget reconciliation.” So by combining much-needed grants of money with lawful conditions on them, Congress can make an end run around filibusters that might block attempts to enact those same conditions separately as positive law.

[The principal post on killing the filibuster follows:]

Sometimes a silly idea gets fixed in people’s heads. It gets sillier and sillier, but no one can drive it out, until at last it reveals its destructive force. So it is with the filibuster.

Search our Constitution for the word electronically. Read every word for sense. You won’t find the word or the concept, because neither is there.

All our Constitution says on the subject is that the Senate and House can each make their own rules. So the Senate wrote its rules to include the filibuster. Except for our own copycat states, no other democracy has anything like it.

The filibuster has two dirty little secrets. First, it was originally designed only for delay, not for its chief use today, as a permanent minority veto. Second, because it’s a Senate rule, the Senate can change it by a simple majority vote.

At our Founding, there was no telephone, telegraph, radio, TV, cars, trucks, trains or planes, let alone the Internet. To get from one place to another, or even to communicate, someone had to travel physically. The fastest way was on horseback. So it took a week or more to get—or to send a message—from the farthest reaches of the nation to the seat of government, then at Philadelphia.

This physical reality lent itself to mischief. Our Constitution says that a “Majority of each [House] shall constitute a Quorum to do Business[.]” So, in theory, a little over a quarter of the Senate’s whole membership (a majority of a quorum) could pass bills while all members but a bare majority were away. The filibuster was an obvious way of stopping this ploy by giving any senator a way to delay the proceedings. It’s just as obviously unnecessary today, when traveling across the country takes less than a day, and messages from anywhere on Earth can arrive in seconds.

The filibuster once allowed for reasoned (if sometimes delayed) debate and an orderly, inclusive senatorial process. From 1917 through 1972, senators used the filibuster to block legislation exactly twelve times. That’s less than once every four years. But late in the last century it morphed into a routine minority veto.

The change started during Nixon’s presidency. It reached its peak during the last two years of George W. Bush’s presidency and the first two years of Obama’s, when the filibuster’s rate of use jumped to 142 times the rate from 1917 to 1972. Why? The Democrats had a majority in the Senate, and the GOP didn’t like that. So the old instrument of delay became a routine minority veto of legislation and presidential appointments.

Our Founders intended to give us checks and balances. These were supposed to act among the three branches—the Executive, Congress and the courts. If our Founders had intended to give a minority in the Senate the power to check a majority of the whole Congress, wouldn’t they have left us some record saying so? They wrote that both Houses together could override a presidential veto with two-thirds votes. Wouldn’t they have put in writing a veto of both Houses’ work by a 41% minority in the Senate?

It gets worse. Today a filibustering senator doesn’t even have to go through the motions of speaking to exhaustion on the Senate floor, as portrayed by the actor Jimmy Stewart in the old movie “Mr. Smith goes to Washington.” Instead, any senator can put a “hold” on anything—a bill or an Executive or judicial appointment—just by sending the senate majority leader a note. Then the 60% cloture rule, which permits the 41% minority veto, comes into play.

So the filibuster’s minority veto has become a veto by each senator individually, capable of being overridden only by that 60% “cloture” vote. In early 2010, Senator Shelby of Alabama blocked 70 of President Obama’s appointments in an attempt to extort a special benefit for his state. This is democracy?

As Lord Ashton said, “power corrupts, and absolute power corrupts absolutely.” By scratching each other’s backs, US senators gave themselves, each singly, the power to bring progress to a halt. They gave a 41% minority the power to block any change in policy that doesn’t involve money.

Most money-spending bills can circumvent the filibuster by a procedure known as “budget reconciliation.” Maybe senators do love to spend the people’s money, but the filibuster makes that the only thing a less-than-sixty-percent majority can do. Apparently, modern senators didn’t think much about how gridlock would deprive the Senate as a whole—and hence Congress as a whole—of the power to do anything but spend.

This trend has not just made Congress weak to the point of irrelevance. It also helped justify and enhance our imperial presidency.

Since the 1970s, when the filibuster’s use jumped dramatically, the Congress has given up its major powers, one by one. First came its power to declare war, replaced by after-the-fact justification for military action, or by the kind of broad AUMF (“authorization for use of military force”) that gave us our endless wars in Afghanistan and Iraq. Then came presidential circumvention of the House’s “power of the purse,” as when the last president diverted military money—defense funds!—to build his useless border Wall. The final ignominy came when the last president and his minions stonewalled House subpoenas as if they were idle requests.

Whatever our Constitution says, Congress has no power unless it acts. When it can’t or doesn’t act, it loses power by default. That’s precisely what has happened since the mid-seventies, when the rate of filibustering began ramping up to its current routine rate.

Today, an imperial presidency may be the least of our problems. The filibuster also has fostered the politics of destruction.

When one party is out of power, it can block not just the majority party’s legislative initiatives, but its appointments, too. By killing the majority party’s plans, the minority party can cause the people pain. Then it can point to that pain and blame the majority party in a quest to win the next election.

Anyone who didn’t see this strategy in play during Obama’s presidency wasn’t paying attention. It’s cynical and treasonous, but it appears to have worked; it may have helped elect our last president. Now there’s a grave risk that the Republicans, fearing demographic and cultural change in Georgia and elsewhere, will repeat the ploy. The politics of destruction may be all they have.

The Crash of 2008 was bad enough. In its aftermath, the begrudging GOP approved just enough stimulus to keep the financial system from collapsing.

But this time, we’re facing multiple crises together. We’ve got a global pandemic that is hitting us harder than it has any developed nation. If we don’t manage it well, it could produce misery to match the Great Depression. We’ve got a racial reckoning and an underclass of eleven million instantly-deportable undocumented workers to deal with. Russia is hacking our government and our infrastructure and turning us against each other. A disciplined and single-minded China is rising relentlessly and becoming militant. Global warming and rising seas are bearing down on our entire species like a freight train. We’ve got a dilapidated national infrastructure that badly needs repairing, and whose repair could create millions of non-outsourceable jobs. And our own media, especially the social kind, have put our voters into information bubbles, some of which are alternative universes of made-up “facts.”

Any one of these problems might have looked like an existential crisis back in the seventies. All together, they threaten unimaginable catastrophe today.

They require prompt action, not gridlock, from the branch of our government best empowered to face long-term challenges. Even pundit David Brooks, who once adored the filibuster as a handmaiden of deliberate reason, now recognizes the urgency of this moment. [Search transcript for “filibuster.”]

All by itself, our Senate’s gross malapportionment of power by population deprives us of anything resembling majority rule. But with the filibuster as used today, our Senate has become a monster of minority rule, disunity, dysfunction and individual extortion. (Recall Senator Shelby.)

The filibuster made it so from the outset. As the minority Sunnis oppressed the majority Shiites in Iraq, as Assad’s minority Alawites (with Russian help) are even now slaughtering Syria’s majority Sunnis, the filibuster has been a tool of oppression by the minority. By preventing Senate action without a supermajority, it preserves the status quo for those who benefit from it. It leaves us unable the respond to changes in geopolitics, the globalized economy, public health, demographics and, yes, social mores and climate.

Some say it’s a bulwark against passing public passions. But that’s the function of our Constitution and our Bill of Rights. They, and not the filibuster, enumerate specific rights that no legislature can change. The filibuster does nothing of the sort; it just perpetuates minority rule. It belongs in the dustbin of history, or in a museum, like the myth of a “genteel” South built on the backs of slaves, or statues of Jefferson Davis and Robert E. Lee.

It’s long past time to kill the monster. The hypothetical risk that, without it, our government will oscillate from one extreme to another with every change in Senate majority is grossly overblown. There are other checks and balances on the Senate, including the power of the House, the Executive and the courts. In contrast, the multi-pronged catastrophe facing us is real and present. So are gridlock and the politics of destruction.

If we want to do something real that matches this precarious moment, we must weaken legislative gridlock. If we want to reduce the politics of destruction, we must let Congress act. (The politics of destruction, too, can cause a race to the bottom through retaliation, as each minority uses it on the other side in turn.)

There are ways of persuading small-state recalcitrants like Joe Manchin with carrots and sticks. We must use every means of arm-twisting to abolish the filibuster, as soon as we can, along with imperial “holds” by individual senators. If we don’t, our national decline, not our vaccine rollout, will come at “Warp Speed.”

Senators can play their part in a functioning legislature in a working democracy, with due respect for their colleagues, the House, and the other branches. Or they can continue allowing a minority, or individual members, to throw gravel in the gears of government. They can’t do both. How they decide may determine whether our frustrated people turn to a strongman to make their dreams come true. Isn’t that just what the last four years forebode?

Today the “swamp” doesn’t cover all of DC. Only our Senate remains stagnant, putrid and stinking, as it has been for some time. The filibuster is the primary culprit. It’s time to abolish it.

Endnote: A Possible End Run? The filibuster’s bizarre obstructive power has only increased in recent years. The word “filibuster” originally connoted extended debate. A single senator would hold the floor in a marathon speaking session, through the night or longer. He or she could orate continuously until a “cloture” motion cut off “debate” by a vote of 60% of the whole Senate. As a procedural matter, the cloture vote would take priority over other business.

Today, as I understand from observing, no debate or marathon speaking is required. A senator simply sends the majority leader a note of intention to filibuster. Then the leader tables the bill or appointment in question until someone demands a cloture vote and, in the leader’s discretion, it is held. Perhaps the majority leader can even table a matter on his own initiative, with no debate at all.

This change made it far easier to kill a bill or appointment. It also left far more to the majority leader’s discretion as such.

That level of discretion fit Mitch McConnell’s iron-fisted “Doctor No” style. He exercised similar discretion in withholding hearings and any vote on Merrick Garland’s Supreme-Court nomination for 293 days, while ramming Amy Coney Barrett’s Senate confirmation through in only 27. Current Majority Leader Schumer should remember this history in deciding how much time to devote to a trial of the last president’s second impeachment.

Making filibusters easier no doubt made them more common. But it also had a minor advantage: by avoiding continuous occupation of the Senate floor, it allowed other Senate business to proceed. (Committee business could always proceed simultaneously. No rule requires senators to listen to their colleagues’ floor speeches, far less in person.)

Today Chuck Schumer is majority leader, not Mitch McConnell. Perhaps he can exercise his discretion as leader differently. Maybe he can require obstructors to filibuster the old-fashioned way.

Once filibusters required real time, effort and coordination on the obstructors’ part. So that tactic alone might reduce their frequency. Yet on matters of real conviction, the GOP might be willing to mount such an effort, having little important to do but obstruct. That’s why abolishing the whole outmoded, anti-democratic, obstructive procedure once and for all is by far the better solution.

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Safe!

For brief descriptions of and links to recent posts, click here. For an inverse-chronological list with links to all posts after January 23, 2017, click here. For a subject-matter index to posts before that date, click here.

Baseball has a well-known signal for “safe!” When a runner slides into a base before the ball reaches the baseman’s mitt, the umpire squats, put his arms forward and sweeps them to his sides. The runner and his team’s fans know he can stay in play and advance.

A movie (whose name I forget) once used baseball’s “safe!” sign in an amorous context. A male suitor gave it to his date, who had slipped inside her front door without a goodnight kiss. The gesture, seen through a window, brought a smile to her face and the promise of love.

All this passed through my mind last night as I lay down to sleep. After watching the Inauguration, my wife and I had driven forty minutes each way to get our first shot of the Moderna vaccine. In about two weeks, when immunity starts to kick in, we’ll be partially safe. In six weeks, when the immunity from our second shot kicks in, we’ll be 95% protected.

We know we’ll still have to take precautions, both to keep others safe and because no one knows how long the immunity lasts. But we’re on our way back to something resembling pre-pandemic life. We’re not safe now, but we will be relatively safe relatively soon.

Last night’s unaccustomed feeling of safety was about far more than our vaccinations. It was mostly about our nation and our way of life. The Inauguration of President Biden and Vice-President Harris had delivered us and the country we love from madness.

Spooked by the Capitol Insurrection, my wife and I had waited until both were safely ensconced in the White House to heave our final sighs of relief. Good government was on the way. Along with it were not just vaccines, but a federal mask mandate, an honest regime of non-vaccine measures, pandemic relief, infrastructure building, a full-court press against systemic racism, concerted action against climate change, and an attempt to do something about the 11 million instantly-deportable serfs among us.

All of a sudden, our leaders were going to address all these longstanding horrible problems as if they were rational adults.

Safety had not been big on the last president’s agenda. He had made his short political career by making people feel unsafe. He had demonized self-interested China as fiercely inimical and bent on global economic conquest. (Aren’t we all self-interested?). He had jet-propelled the GOP’s canard of an imaginary, nationwide putsch to wipe out Christianity. He made up a “cancel” culture supposedly crushing free speech, and a series of concocted “witch-hunts” against himself. (Who could imagine why anyone might investigate him?)

Last but not least, our last president had relentlessly overhyped the threat of Black Lives Matter and antifa protests, a very few of which had produced some minor property damage and some fires to replay in endless loops on right-wing news. The only deaths I’m aware of were of Black people killed by police, an innocent woman run over in Charleston, a person killed by a seventeen-year-old right-wing gun fanatic in the Pacific Northwest, and the five people who died as a result of the Capitol Insurrection.

Most of all, the last president—I’m trying never to use his name again—made us actually unsafe with his lies, incompetence, neglect and occasional outright craziness. Bleach to drink, anyone? Hydroxychloroquine? Let’s all throw off our masks and party for “freedom” so we can infect each other as quickly as possible! And let’s not get vaccinated because vaccines are produced by a horrible cabal backed by the Dems that wants to control our lives and our minds!

For those of us still in contact with reality, having a top leader who daily propagates such craziness, along with over 30,573 lies lies, didn’t do much for feelings of safety.

Imagine boarding an airplane, belting in, and hearing the doors close. The pilot comes on the intercom. He announces that this is his maiden solo flight, and that everyone’s going to Mars.

That’s how the whole last four years felt. A man who had had no experience whatsoever in elective office, whose family company of less than thirty people had experienced several bankruptcies, was suddenly in charge of a highly specialized federal workforce of some seven to nine million people.

The more he lied and made things up, and the less he read his briefing papers and consulted experts, the more self-evident it became that he didn’t know what the hell he was doing. But he sure knew how to delude people and rile them up.

With 47 years of experience in elective office, Joe Biden is the most-qualified president in this century or the last, except perhaps for FDR in the later of his four terms. Like his mentor Obama, Biden is humble, cautious, careful and empathetic. Now, at last, a majority of us seem to recognize the importance of experience and these other qualities, along with competence, knowledge and solid contact with reality.

One of the most marvelous aspects of our newfound safety is how Black people helped provide it. Jim Clyburn, our House Majority Whip, is not the world’s best orator. But he has something more important for real leadership: wisdom and good judgment. By anointing Biden in South Carolina, Clyburn put Biden in the national limelight and on the road to victory, which we all see now was narrow and fraught with peril.

So the nation owes Clyburn a debt of eternal gratitude. Our democracy would not have survived the demagogue’s second term. Clyburn pointed out the safest escape route. After a tense primary-election season and a lot of nail biting, we took it, and it worked.

Helping hands across the race divide also came from Georgia, whose runoffs swept away Mitch McConnell as Senate Majority Leader. While not quite the devil of the last president, McConnell had become infamous. With his iron hand suffocating every Senate floor vote, he pulled back almost every helping hand for working people in need that Democrats could imagine, even those that had some GOP support. You could almost hear his arteries hardening as his lifeless voice intoned the latest “no” to votes for anything but confirming judges who pine for the nineteenth century.

Who made it possible to sweep McConnell away? It was Black and Latino organizers in Georgia, that’s who. It was people like Stacey Abrams, Nsé Ufot, Helen Butler, and Marisa Franco. Nothing like a helping hand pulling you out from in front of the bus to improve inter-racial understanding.

As we all enjoy our new and unaccustomed sense of safety and common purpose, we can’t relax just yet. Of course we have enormous work to do. But we also have a vital enigma to solve.

How did we ever come so close to the edge? What put 75 million voters, and the leaders of a once-great political party, in thrall to a carnival barker, pathological liar, charlatan, inciter of an insurrection and con-man? How did one-quarter of our entire population not see through him from the start? Did we skip a whole generation of parents who teach their kids that it does no good to praise yourself, and that people who do so incessantly are unreliable?

I may have been lucky. I met a pathological liar in my twenties, while in Sweden on a post-college summer trip before grad school. While still in my twenties, I had a brilliant and charming con-man for a boss, who brought his small company that employed me down. A company “doctor” warned me of his dishonesty while interviewing me to find out what had gone wrong. So I learned early to spot both types—the patho and the con-man.

Once you learn that, you become inoculated. Yet pathological liars and gifted con-men aren’t so common. They’re even less common when combined into a single person like the last president. I passed the whole rest of my 75 years without encountering anyone remotely similar in my personal life.

Fortunately, my early inoculation, unlike the Moderna vaccine, seems to have given me lifelong immunity. Once burned, I didn’t have much trouble seeing what lay behind the last four years of chaotic misrule.

Maybe we need more universal inoculation. Maybe we can improve our public education so that everyone can identify the patho and the con-man. Maybe we can find the types in literature and teach them better. Maybe we can somehow bar such people from politics at the entry level. If we could do either, our nation’s and species’ chances of survival would take a giant leap.

Yet today, it’s enough to revel in our new-found feelings of safety. For the first time in four years, we have a government based on experience, knowledge, competence, facts and evidence. We have top leaders who care about us, not just their own reality “show.” We all owe a current debt to Black leaders and voters that needs repaying. (Reparations are a subject for another day.) We have resurrected the notion of public service from the dead.

For a few days, we can leave the big plans to our new leaders. We can celebrate our newfound feelings of safety, commonality and budding confidence, as the hard work begins.

Endnote: Winding Down this Blog. Now that we have rational, competent government again, I’m going to wind down this blog. I’ll still be writing, but no longer to the tune of several posts a week. Just as happened after Obama’s first inauguration [scroll down to last paragraph], I’m going to put my trust in good, experienced, competent men and women, most of whom have worked diligently for decades to win the opportunity to serve us.

In a bizarre way, this last election-season push has been hectic and exciting. But it’s nice to feel safe at last—as much as one can after a grotesquely botched response to a global pandemic and four years of mindless, whim-driven chaos.

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MLK Day 2021

For brief descriptions of and links to recent posts, click here. For an inverse-chronological list with links to all posts after January 23, 2017, click here. For a subject-matter index to posts before that date, click here.

For a key post on how to hold social platforms responsible for the choas they are causing, including the Capitol Insurrection, click here.

Our “original sin” of slavery is much like an individual’s congenital defect. It never seems to go away. Slavery as such is gone. We fought our bloodiest war ever to ban it. We passed three constitutional amendments and, about a century later, two civil rights laws. One of those laws was supposed to make it easy for everyone to vote, regardless of origin. But still we had just one polling place in a huge mostly-Black county in Georgia. Even during a pandemic, we had a single ballot drop-off point in Harris County, Texas, with a population of 4.7 million, over two-thirds of whom belong to “minorities.” Slavery was not merely a brutal, grotesquely exploitive economic system. It was a whole mindset. Race and racism are abstract concepts conceived to justify that system, now gone for a century and a half. White people with supposedly lofty ideals, who called themselves “Christians,” justified violating every principle of empathy, equality, and human dignity that Jesus had espoused. Their mindset let Thomas Jefferson own slaves while penning our national credo, “all Men are created equal.” Apparently few noticed the contradiction. Whites invented the infamous “one drop rule” to set slaves apart and to keep the progeny of rapes by whites as property. Today, no one believes that rule has any chromatic, genetic, scientific or moral validity. We are all part of a brilliant rainbow of genetic colors. Having cracked the DNA code, we can see that now. Yet race and racism persist. In the twenty-first century, when men on the Moon are old news and we can edit our own genetic code, a policeman murdered George Floyd by knee. That murder sparked a nationwide epiphany, with massive, mostly peaceful protests from coast to coast, including millions of white people. Two steps forward, one step back. That has been our slow dance around the dumpster fire of race and racism since our nation’s Founding. We have a tougher time putting out the fire because we made slavery more central to our economy at home (as distinguished from colonies), and we abandoned it later, than did any other advanced Western country. Obsessed with wealth for those quickest to grab it, we Americans have been slow moral learners. Where are we today? It’s hard to tell. We just rejected the only demagogue in our national history to come so close to overturning our democracy. We just survived the Capitol Insurrection. We all ken, or should, that racism and so-called “cultural” resentments were the real fuels for the demagogue and his Insurrection. The Confederate flag flaunted in our Capitol was a tiny hint. We just ended four years with no infrastructure bill. We got only a big debt-fueled tax cut for the rich and for business. So who could fail to see that alleviating widespread economic pain was not high on the demagogue’s agenda? Apparently, 75 million people. But our democracy’s guard rails held. Not just our electoral system, but business and social media, too, have turned on the demagogue. Our collective escape from tyranny was close, but the election and the Insurrection’s aftermath were not. The nation’s and the States’ capitals now seem secure. Way back in spring, when the demagogue seemed entrenched and the pandemic was running wild, suppose someone had made a prediction. Suppose a self-appointed “prophet” had declared: “Next year, Joe Biden will be our President. Kamala Harris, the California Senator of Jamaican-(East) Indian descent, will be Vice-President. They will not win narrowly, but by decisive and indisputable margins in both the Electoral College and the popular vote. The Democrats will have control of both the Senate and the House, and Georgia will be trending blue. Not only that: the demagogue will have disgraced himself, by his own acts, before the vast majority of Americans, including many Republicans. As his term chaotically winds down, he will be impeached for a second time, with a real chance of being convicted and barred from ever holding office again. His minions will resign in droves like rats leaving a sinking ship.” If religious, you might have muttered, “From your lips to God’s ears.” If secular, you might have asked, “What have you been smoking?” In either case, you would have dismissed the “prophet” as an idle dreamer. But all this has come to pass, or will in two days. The Democrats lost a few seats in the House, and their control of the Senate is narrow. But Mitch McConnell will no longer preside over a Senate graveyard where good legislation and pandemic relief for tens of millions of desperate workers come to die. Real experts, with relevant education and experience, will soon run and populate our government. Remember the rich, entitled white people in charge? Remember the ones who hadn’t a clue what they were supposed to be doing—besides taxing their own less, cutting regulations that keep us safe, grossly exploiting racism, and hoping no one would notice? Remember über-incompetents like Betsy DeVos and Scott Pruitt? They are gone. The few who are left, including Pompeo, will leave soon. Yes, the pandemic is still among us, killing and maiming. But vaccines are on the way. Tony Fauci will soon be in charge of public messaging and a big influence in planning. Our government will no longer be bent on drowning itself in a bathtub. At every level, it will start to work again, slowly at first, then gathering speed and coming into synchrony like a fine Swiss watch. Competence, knowledge, expertise, leadership and policies based on facts and data will return to DC. Our Cabinet and senior leaders will look like America: a rainbow of colors, all bold and competent. It’s not good to exult while people are still getting sick and dying, in ever-increasing numbers. But it’s OK to feel some quiet confidence that things will get better. Maybe some of the 75 million will come to their senses as things do. While life remains, so does a chance for redemption. I don’t know what you’ll be doing on Wednesday. But around 9 am California time on January 20, as Biden and Harris are sworn in, I’ll be dancing in the streets. I don’t yet know precisely how I’ll listen to dance music and Biden’s inaugural address at the same time. But with all the electronic devices in my life, I’ll manage somehow. And I’m not going to feel guilty, but relieved and happy, to be hoping again after so much hate, fear and misery.

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Social Media Paying the Piper

For brief descriptions of and links to recent posts, click here. For an inverse-chronological list with links to all posts after January 23, 2017, click here. For a subject-matter index to posts before that date, click here.

For an Update on Causation (1/17/20), click here.

To outsiders, the US must look like a place gone mad. A huge rabble, virtually unrestrained, stormed our Capitol. Among the results were five deaths, numerous injuries, and enormous property damage. US airplanes have become hazardous places, not just because of Covid-19, but because gangs of maskless louts are shouting and harassing our public servants on board, flouting the rules of air travel and pandemic safety. Madmen are stalking our public servants, their homes and their families and threatening violence and persecution.

Foreigners observing us must think we’ve collectively lost our minds.

There’s a lot of real damage here. There are five deaths. There are physical personal injuries. There are people who’ve caught Covid who otherwise wouldn’t have. There’s a huge class of people who have claims for wrongful death, physical injuries or property damage. This is what lawyers call a “mass tort.”

What’s the precipitating act? It’s a bald lie, originated by Donald J. Trump, that the election was stolen. It’s a lie that social media helped propagate, not just for two months after the election, but for a significant time beforehand, while Trump was claiming incessantly that the election would be “rigged.”

But here’s the thing. This tort is not about defamation. Reputations may have been ruined. But many people also were actually hurt, and much property damaged, in primitive torts of assault, battery, vandalism and mayhem. So Section 230(c)(1) of the Communications Decency Act, which gives social media a free pass for defamation, simply doesn’t apply. This time, social media have to pay the piper for what they’ve done—for the effects of their spreading the lie.

It looks as if some of the media actually understand their liability. Before the Insurrection, they minced around the lie for weeks and months, some warning users that the lie was “disputed,” or words to that effect. But no social platform cut Trump off completely until after the Capitol Insurrection. Roger McNamee, a venture capitalist and early investor in Facebook, thinks some did so afterward not out of patriotism, but for fear of legal liability. (See also, his essay in Wired Magazine.) After thinking things over, I agree with McNamee.

The flypaper contracts by which corporations wipe out most of American law for Internet users don’t apply to these injuries. The reason: even if the injured parties were social-media users, their injuries generally have nothing to do with their use of social media. Insofar as concerns their use of social media, the injured parties were harmed as innocent bystanders. So neither contractual disclaimers nor contractual exclusions of class actions apply.

Although well worth pursuing, this is not an open and shut case. There are issues of intent. Surely the social-media firms didn’t intend to cause these injuries deliberately, but were they negligent or reckless? I have argued yes.

There’s also a question of causation: how far do the ripples of causation extend outward from such wide dissemination of the key precipitating lie, with such little warning of its falsity? Does strict liability apply in this egregious case? Does the “intervening cause” of Trump’s mass rally, immediately before the assault, excuse the earlier precipitating cause of a bald lie spread so widely, which helped to bring so many angry people to our capital? These are questions that deserve to go before a judge and/or a jury.

Social media were not the only media to spread the lie, but I’d argue that they were the most egregious in spreading it in pristine form, with little comment or objection. By the time the election season rolled around, most non-social media were treating the lie as a falsehood of Trump, with big, prominent disclaimers. Many such media had already begun calling it a “lie.”

At the end of the day, this case doesn’t differ in concept from mass tort litigation over environmental pollution. Metaphorically, social media polluted society’s understanding of its social, political and electoral environment.

So here’s what ought to happen now. The survivors of the dead Capitol Police should get together with the other injured parties and hire the best mass-tort litigators in the nation. They should bring a class action against Trump and the social media that propagated his lie. The case should be a class action on both plaintiffs’ and defendants’ sides. All social media that propagated the lie before the Insurrection, without calling it a lie, should be named as defendants.

The case would benefit the entire nation, not just the plaintiffs. For the jury would have to consider the falsity and inflammatory nature of the lie in the course of assessing liability. A decision would provide much-needed closure to a nation ganged up on either side of the ring.

Yes, there were 63 individual lawsuits relating to the lie. Trump’s side lost all of them, except for one that let GOP observers come closer to the vote counters. But that gaggle of suits lacked the geographical breadth and singular focus that a nationwide class action would bring to the issue of truth or falsity.

The plaintiffs should have no trouble getting lawyered up. When I searched in Google for “mass tort Potomac,” I got so many hits on lawyers’ ads that I gave up trying to find online histories of an illustrative mass-tort case, involving pollution of the Potomac, that I vaguely remembered from law school in the seventies.

So finding counsel should be easy. Lawyers will flock to serve like moths to a lamp. They will come for the novelty and importance of the case, the amounts at stake, and the reputational boost for any lawyer who takes part.

They ought to serve on contingency, perhaps even floating costs, thus making it easy for individual plaintiffs to sign on. But to make sure they get the very best lawyers, plaintiffs should hire a consultant—a professor known for research on mass-tort litigation (I would not qualify)—to guide their selection and retention of counsel.

Win or lose, a case like this could do for our society what litigation over the Great BP Oil Spill did for our Gulf. It could clean up the cesspool of social media. Merely bringing this dual-class action before a District-of-Columbia jury would force Facebook, Twitter and the rest to give far more weight to the immense damage the lies they spread cause than they have done to date.

At the end of the day, tort law is a safe meadow of common-law simplicity in an overgrown forest of dense statutes. It’s common-sense law about real damage in real life. No careful observer, in my view, could hold social media blameless for the degradation of our thinking, politics, elections and social relations that followed their advent. It’s time for them to start paying the piper or making credible defenses in courts of law.

Update on Causation (1/17/20): Today an NYT op-ed piece by Stuart A. Thompson and Charlie Warzel gave lawyers a primer on how social platforms radicalize users with real-world effects. The piece appeared in Sunday’s California print edition under the headline “How Facebook Incubated the Insurrection.” Much the same piece had appeared earlier online under the headline “They Used to Post Selfies. Now They’re Trying to Reverse the Election.”

In essence, social platforms convert lost souls with little going for them into radicals addicted to social attention in the form of “likes,” followers, commenters and subscribers. These users become radicalized after finding that extreme and strange ideas—helping make up surprising, awful and terrifying things out of whole cloth—attracts attention. In other words, telling gripping lies to get attention has migrated from the grammar-school playground to become a dangerous online subculture among adults.

Here’s the writers’ key conclusion:

“The [radicalized] influencers amass followers, enhance their reputations, solicit occasional donations and maybe sell at few T-shirts. The rest of us are left with democracy buckling under the weight of citizens living an alternate reality.”

The most chilling point of the print-version piece is its last three paragraphs. They detail how one radicalized user was, at least temporarily, able to circumvent Facebook’s control by joining a new violently radical group in a rapid, organic way.

There are technical expedients, if Facebook would only use them. For example, Facebook might ban users by IP address, or require them to make the MAC numbers of their devices available every time they sign on. It should be up to expert-instructed juries, not Mark Zuckerberg or Jack Dorsey, to decide whether the platforms they control are responsible, under a standard of “reasonable care,” for injuries arising from horrific events like the Capitol Insurrection.

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Social Platforms’ Roles in Treason and Harmful Disinformation

For brief descriptions of and links to recent posts, click here. For an inverse-chronological list with links to all posts after January 23, 2017, click here. For a subject-matter index to posts before that date, click here.

Do Facebook, Twitter, YouTube, Instagram and other Internet platforms have some responsibility for the January 6 Capitol Insurrection? Were they complicit in it? Did they help cause it? Were they accessories to treason? Did they give aid and comfort to real “enemies of the people”? Did they aid Vladimir Putin’s disinformation campaign to weaken the US, or spread disinformation about the pandemic?

At least one inside observer thinks so. Roger McNamee is a venture capitalist, an early investor in Facebook and a long-time observer of Internet platforms. He believes the answers to some of these questions may be “yes.” He thinks that the platforms recently kicked Trump off not out of selfless patriotism, but for fear of legal liability.

McNamee never went to law school and is not a lawyer. So his reasoning depends on cause and effect. For Facebook, he explained it in a January 13 interview by Hari Sreenivasan on Christiane Amanpour’s show on PBS. He also makes similar points in an article in Wired Magazine entitled “Platforms Must Pay for their Roles in the Insurrection.”

McNamee’s analysis proceeds in two steps. First, the platforms’ algorithms prioritize extremism, outrage and conflict in order to attract traffic. In McNamee’s words, “Hate speech and disinformation theories are core to the business.”

As an example, McNamee cited the Qanon conspiracy fantasy. He said that, by Facebook’s own admission, it had three million viewers of various pages related to Qanon. He cited independent reports of Facebook’s own internal study, which concluded that 64% of Facebook users who opened Qanon’s pages did so because Facebook had recommended them. He also claimed that “Covid misinformation flourished on Facebook.”

The second step is causation. Facebook, McNamee claims, was instrumental in inciting and organizing the Insurrection. Otherwise unrelated people from all over the nation took part in it. Without Facebook and similar platforms, they could neither have whipped themselves into a frenzy nor organized the Insurrection.

In legal terms, the ways Facebook programmed its algorithms to “monetize” extremism, outrage and conflict look like “but for” causes of the Insurrection. Although McNamee didn’t say so specifically, the Covid misinformation that “flourished” on Facebook is undoubtedly responsible for many instances of Covid sickness and death, including “superspreading” events.

I would add another “count” to McNamee’s analysis. As US intelligence has made clear, Vladimir Putin’s US disinformation campaign did not have electing Trump as its primary goal. Instead, it had the goal of fomenting and fostering discord and division within the United States, thereby weakening it. Because Trump was and is a master of division and discord, electing him and increasing his support (the more radical the better) were just means to that end. Facebook and the other platforms, with algorithms designed to exploit extremism, outrage and conflict, played right into Putin’s grand strategy.

No sane person believes that Mark Zuckerberg or Jack Dorsey deliberately incited the Insurrection, aided Putin’s disinformation campaign, or aggravated the pandemic. All they wanted to do was make money and, as Zuckerberg famously put it, “move fast and break things” for that purpose. Their facilitation of treason, Putin’s disinformation campaign and Covid disinformation was neither deliberate nor purposeful.

But all these things did happen in significant part because of the ways in which the Internet platforms did and do business and the steps they deliberately take to increase traffic. Facebook’s own employees, in internal and public protests, gave its bosses ample notice that what they were doing was not only immoral and dangerous, but also may have broken the law.

In legal terms, the platforms’ parts in the treason, disinformation and widespread pandemic unpreparedness seems, at very least, negligent or reckless. The question before us is: does that matter? In a sound, self-protective society, should it?

One of history’s great advances in the rule of law was the recognition of non-intentional torts, or personal wrongs. Long before the industrial age, the law recognized only intentional torts, such as assault and battery. But as the industrial age came and matured, personal injuries and deaths caused inadvertently became more common. People suffered and died as unintended consequences of the careless or reckless uses of dangerous machinery and chemicals.

Today every driver is familiar with the notion of “negligent” driving— driving a vehicle without ordinary and reasonable care. There is also a heightened guilty state of mind—“recklessness”—which means little or no care and implies greater liability. If driving negligently or recklessly injures or kills someone, the driver can be legally liable for civil damages and, in cases of death, criminally liable for manslaughter. Similar law applies to non-intentional industrial accidents and environmental damage from such things as oil spills.

Does the same analysis apply to unintentional treason, sedition or insurrection, or to disinformation that aids a foreign power or exacerbates a pandemic? Should it?

In the UK, the answers might well be “yes.” Unlike the United States, it has an unwritten Constitution and has not reduced almost all of its law to written statutes. Instead, the UK’s law more often operates on the old English system of “common law.”

When a new legal question arises that never came up before, Britain’s courts and its “Law Lords” from the House of Lords (the equivalent of our Supreme Court) rely on wise judges to determine what makes sense and where justice and the public interest lie. Likely the UK’s common-law judges would not allow a profit motive to excuse acts that put the entire state at risk—whether from treason, foreign disinformation or misleading claims about a pandemic. After all, such acts may ultimately harm the very people making the judgment.

Whether US courts, including our Supreme Court, would make such judgments without statutory authority is an open question. But enacting a statute to that effect is something Congress should consider.

The notion that private firms can help incite and enable violent insurrection, aid a foreign enemy, or aggravate a pandemic, and yet escape all liability, is unlikely to promote the survival of democracy. And just as the industrial age increased the risk of inadvertent injury and death in accidents, the information age is self-evidently increasing the risk of unintended social and political consequences, including widespread social destabilization.

One thing is almost certain. Even notorious Section 230(c)(1) of the Communications Decency Act, which wiped out the law of defamation for Internet platforms, does not give Internet platforms a free pass for all the harm they cause. Specifically, it does not excuse treason, sedition, insurrection or complicity in or aiding them. Nor does it excuse inadvertently aiding foreign disinformation campaigns or the spread of a pandemic. Its one-sentence midnight amendment only precludes a platform from being “considered the publisher or speaker of any information provided by another information content provider.”

This language comes directly from the law of defamation. In enacting it, Congress never imagined anything like the Capitol Insurrection, Putin’s disinformation campaign, the Covid-19 pandemic, or how Facebook and other Internet platforms might help cause or exacerbate them. Therefore § 230(c)(1), as it stands now, cannot preclude liability for a platform that arranges itself so as to foment extremism, outrage and conflict as means to profit and thereby helps enable these and similar disasters.

A case of negligent or reckless enabling would proceed much like a case involving an automobile or industrial accident or oil spill. Experts would testify on what level of “reasonable care” a platform should have taken to have reduced the risk of the insurrection, sedition or treason that ensued, or of aggravating the effect of foreign disinformation campaigns or the pandemic. Employees of the platform, who saw in person what had transpired on it, could be called to testify.

If employees’ reported pressure and protests to remove lies, hate and conflict from Facebook are accurate, Facebook might be hard pressed to avoid liability. Thus patriotic employees on the front lines could serve as a check on the unintended social and political consequences of corporate greed.

As McNamee suspects, the prospect of this actually happening may have been a significant factor in Facebook deplatforming Trump after the Capitol Insurrection. Similar analysis applies to other unintended consequences of letting platforms foment discord for profit, including riots, rumbles and hate crimes.

So if the Capitol Insurrection chilled your heart, you needn’t consider Zuckerberg, Dorsey, and their ilk, or their respective firms, entirely innocent. As a matter of common-sense cause and effect, the way they ran their businesses helped incite the insurrectionists and helped them organize their treason. Similar logic applies to the spread of disinformation in Putin’s campaign and about the pandemic.

Imposing legal liability on corporations—and personal liability on their controlling persons—is a tried and true way of discouraging non-deliberate wrongdoing, including accidental environmental pollution. If we want to discourage Internet platforms from polluting our society with hate, lies and disinformation, imposing legal liability on negligent and reckless acts is something to consider.

The very fact of Facebook deplatforming Trump after the Insurrection shows that imposing legal liability could work. Like traffic and industrial accidents and environmental disasters, the terrible unintended consequences of Internet platforms’ business could wane, if only we hold them legally accountable for meeting a reasonable standard of care. Negligent and reckless automobile and industrial accidents, including pollution “spills,” don’t discourage themselves: the laws of corporate and personal liability do.

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Conspiracies are Real

For brief descriptions of and links to recent posts, click here. For an inverse-chronological list with links to all posts after January 23, 2017, click here. For a subject-matter index to posts before that date, click here.

“If two or more persons . . . conspire to prevent, by force, intimidation, or threat, any [federal officer] from . . . discharging any duties [of office], or to induce by like means any officer of the United States to leave the place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office . . . or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties, each of such persons shall be fined under this title or imprisoned not more than six years, or both.” — 18 U.S.C. § 372.

No, this essay is not about made-up conspiracies of left-wing pedophiles or the so-called “Deep State.” It’s about what actually happened at the US Capitol on January 6.

There and then, a conspiracy of thousands did “prevent, by force, intimidation [and] threat” the Capitol Police from discharging their duties of protecting the Capitol and our legislators, and “injure” them in their “person or property.” In fact, the mob killed one officer, so discouraged another that he committed suicide, and trashed the place. This is what a real conspiracy looks like.

How does the law define “conspiracy”? There are at most three elements:

[1] “[a]n agreement between two or more people to commit an illegal act, [and 2] an intent to achieve the agreement's goal. Most U.S. jurisdictions also require [3] an overt act toward furthering the agreement. An overt act is a statutory requirement, not a constitutional one.”

The agreement, of course, need not be written. Criminals don’t write “declarations of conspiracy,” like our Declaration of Independence, with “whereas” clauses and effective ones in erudite language and logical order. The “agreement” behind a conspiracy is always a matter of inference from circumstantial evidence. It’s for juries to see and find. And, yes, the Capitol Police are federal officers.

In this case, there is circumstantial evidence in abundance. Many conspirators left a “paper trail” on the Internet. Many met and planned, with Trump’s goading and separately. We must subpoena their rants on right wing “social media” and bulletin boards. We must make sure that Facebook, Twitter and the rest, in striving (rightly!) to stop the spread of violence, don’t throw out the evidence. Every call to violence, insurrection and mayhem must be preserved for trial.

Can you imagine any more consequential conspiracy than one that kept our Members of Congress caged up like undocumented alien kids at the border, hiding on the floors of their Chambers or under their desks? Can you imagine any illicit goal more consequential than stopping the operation of Congress?

So why don’t we arrest everyone we can identify at the January 6 insurrection, put all in the slammer pending trial, charge them with conspiracy under § 382, and seek the maximum penalty, six years in federal prison? Why am I reading about minor charges like trespassing or damaging property?

There are three easy answers to these questions. First, these conspirators are white. Second, they all support Trump. Or at least they have taken his diselection as a reason for their insurrection. Third, they are presumed to vote Republican and to have the sympathy of many more who do.

I can’t help but wonder what our fine legislators were thinking while they cowered, as advised by police, on the floor or under their desks. At least a few must have been thinking “This has gone too far.” Just as evidently, quite a few Republicans were thinking, “How can I get out of this with my reputation not too badly damaged, so I can get right back to pandering for extremist votes? Maybe I can become the next Trump.”

Courage combined with stupidity, or cowardice? You decide. But it has to be one or the other.

Did no one have the imagination to wonder what might have happened if the rebels had had the same automatic weapons that similar loonies paraded at Michigan’s Capital in April? How long could the four plainclothes protectors–who apparently killed a female insurrectionist while shooting blindly through broken glass—have held them off?

You know partisanship has reached the level of insanity when people won’t even protect themselves, let alone the institutions they’re sworn to uphold. But that’s exactly what happened last Wednesday.

Sadly, it’s been happening for a long, long time. Congress has all but forfeited its constitutional power to declare war. The House all but gave up its power of the purse in failing to censure or impeach Trump for diverting military money, without legislative authorization, to his useless Wall. And Congress, while keeping an actual jail for contemnors, punted to the courts to enforce its duly issued subpoenas to the members of the Executive Branch.

How spineless must you be not to protect the institution you serve, its constitutional power, and your own invertebrate body prone in front of lawless rebels? How can any of our legislatives call themselves “conservative” when they won’t even “conserve” their own prerogatives and power?

We ought to see the mob on trial, before a jury from the District, for conspiracy. The rioters ought to end up serving six-year terms, by the hundreds, if not the thousands.

This is why I wanted to see Eric Holder return as Attorney General. Although bigger and more imposing physically than Merrick Garland, he radiates the same sort of cherubic innocence. But in Ferguson Holder collected facts so thoroughly and damningly that no one could misunderstand what had been going on there.

Maybe Garland can do the same. If not, he can hire subordinates who can.

But this is the DOJ’s first order of business: to preserve Congress and its power as our Founders intended. That means putting enough of the January 6 goons behind bars for long enough so that no one will try this kind of stunt again for a long, long time. We must do that soon, lest goons bearing arms decide they have a free pass to take over our government, and, as some of them chanted, “Hang Mike Pence.”

Trump tried to win voters by claiming to support “law and order.” He proved his zeal by tear-gassing peaceful protestors on Lafayette Square. Why not start the Biden Administration by making sure that “law and order” at least prevail in our nation’s capital, and in our fifty states’ capitals as well, at least on Inauguration Day? A democratic government that cannot protect itself is no government at all.

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Why Impeach Again Now

For brief descriptions of and links to recent posts, click here. For an inverse-chronological list with links to all posts after January 23, 2017, click here. For a subject-matter index to posts before that date, click here.

We Americans are a self-centered lot. That’s why Trump’s “America First” slogan gained so much traction. That’s why we didn’t enter World War II until attacked at Pearl Harbor. That’s why, after that terrible war, we spent seventy years trying to forge a new world order. We figured we might avoid another terrible war if the world had a decent set of rules that we helped make.

That’s why the Ukrainian count of Trump’s first impeachment went nowhere. If the truth be told, Americans who care about Ukraine and its millennial love-hate relationship with Russia number in the thousands, out of 328 million. And most of them are of Ukrainian descent.

The obstruction-of-justice charge went nowhere for a different reason. It’s a subtle charge that requires an understanding of how delicate and fragile is the rule of law. Americans see our president as the most powerful person in the world. How can anything he does be wrong, unless it involves blood, flames, bold theft or outright murder?

Trump played that crude belief like a cheap fiddle. I won’t say you had to have gone to law school to understand how wrong it is, but surely it helps. The American public simply didn’t care enough about the nuances of prosecutorial independence and the separation of powers to beat down the doors of their Republican senators and demand justice. So Trump got off unscathed—the more so because shame and guilt are foreign to his character.

But this time it’s personal. This wasn’t some foreign country that most Americans couldn’t locate on a globe. This wasn’t an abstract question of ethics or checks and balances. This was our Capitol. Rioters besieged it and trashed it, and Trump led them on.

They say we Americans are religious. But we worship in many ways. As time goes on, we are attending places of worship less and less often. The seat of our government—especially the Capitol—is our common secular temple. You can see the awe and reverence in the faces of tourists who visit our capital every day.

That is what Americans hold sacred: the buildings that house our democracy, the places where it works. Our reverence for them is the closest thing we Americans have to a common religion. Millions of us, of all religions, have suffered and died to save what they represent.

So what happened on January 6 was a desecration. The mob defiled all we hold sacred, no matter what our religion or political party.

And we don’t need words to describe the descecration, let alone subtle abstractions. All we need is to replay the tapes, which aired on every news network.

The same is true of cause and effect. Play the tapes of Trump’s rallies. Magnify his tweet, “Be there, will be wild!” Show the immediate effect on the crowds and on social media. You don’t need to argue cause and effect; they’re there on the clips, in full color.

For five years, those of us who saw through Trump early have been trying to get our friends, neighbors and co-workers to see. There’s something uniquely evil about the man. It’s not just his incessant bragging and self-obsession. It’s not just the ease with which he lies and steps on the bodies of those who’ve lied down for him. It’s not just his failure to recognize any rule or law but his own advantage. It’s not just his talent for insulting and demeaning women and minorities and then demanding (and sometimes getting!) their votes. And it’s certainly not his rawness, inexperience in government and unwillingness to learn or even read his briefing papers.

It’s all of the above, and more. It’s hard to take it all in. It’s especially hard when so many who should know better have spent so much time, effort and ink explaining and rationalizing his every flaw, lie, insult, self-praise and blunder.

But this time there’s no rationalizing. A crude, violent mob ransacked our temple of democracy. Five people died in the process. Our Commander in Chief, in a last-ditch effort to deny his decisive defeat, led them on.

You don’t need a horde of witnesses to testify; you just need to play the tapes. Any person with the slightest appreciation of cause and effect can get it. That’s why the National Association of Manufacturers, the Wall Street Journal, Mitch McConnell and others—all formerly in Trump’s corner—turned on a dime and condemned him.

Our Constitution has only three requirements for the presidency: natural-born citizenship, fourteen years of residency, and having passed one’s thirty-fifth birthday. We don’t have any requirements for health, intelligence, experience, psychological stability or the absence of scientifically-recognized personality disorders. So it’s vital for our voters to be able to recognize an evil man like Trump, and for that recognition to become as widespread as possible.

With so few legal or customary barriers to our highest office, there will be others like him. Some may be smarter, tougher, more disciplined and more restrained. (That wouldn’t be especially hard.) So it’s vital that voters see, understand and recognize what has happened here, while memory of the desecration is fresh enough to forge a common understanding.

Yes, impeachment and conviction could bar Trump from ever running for office again (assuming he’s not already in jail for his crimes). Yes, being the only president ever to have been impeached twice will set him apart as uniquely horrid, as it should. But those aren’t the best reasons to begin the process less than eleven days before the start of a new administration.

This is a unique, highly perishable teachable moment. Like a death or a common tragedy, it begs for ceremony and for closure—a funeral of a sort.

We must have a common, final evaluation of the man who drove us as close as we’ve ever come to the Dark Side. Without that, without some closure, we do not just risk—we invite—a recurrence. Ted Cruz, Josh Hawley and scores of Republican House members are already rehearsing for the role. The invitation will stand like a open wound upon our national soul, until we bandage it at some unknown future time.

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