Archives: 10/2010

Privacy and the Common Good

Jim Harper’s post Monday, responding to communitarian Amitai Etzioni on “strip search” scanners at airports, gives me an opportunity to mount one of my hobbyhorses.

My beef with Etzioni’s conclusory argument isn’t just that, as Jim observes, he purports to “weigh” the individual right to privacy against the common good (here in the guise of “security”) without any real analysis of the magnitudes on both sides. It’s that his framing is fundamentally backwards. The importance of privacy is, to a great extent, a function of its collective dimension—a point to which you’d think a communitarian theorist who’s written an entire book on privacy would be more keenly attuned. If I may indulge in a little self-quotation:

[W]hen we talk about our First Amendment right to free speech, we understand it has a certain dual character: That there’s an individual right grounded in the equal dignity of free citizens that’s violated whenever I’m prohibited from expressing my views. But also a common or collective good that is an important structural precondition of democracy. As a citizen subject to democratic laws, I have a vested interest in the freedom of political discourse whether or not I personally want to [engage in]–or even listen to–controversial speech. Looking at the incredible scope of documented intelligence abuses from the ’60s and ’70s, we can add that I have an interest in knowing whether government officials are trying to silence or intimidate inconvenient journalists, activists, or even legislators. Censorship and arrest are blunt tactics I can see and protest; blackmail or a calculated leak that brings public disgrace are not so obvious. As legal scholar Bill Stuntz has argued, the Founders understood the structural value of the Fourth Amendment as a complement to the First, because it is very hard to make it a crime to pray the wrong way or to discuss radical politics if the police can’t arbitrarily see what people are doing or writing in their homes.

I’m actually somewhat sympathetic to the notion that the individual harms that result from strip scanners are relatively slight, especially when passengers can opt for a pat down instead. In the worst case scenario, some unscrupulous TSA employee might find a way to save and circulate some of these blurry quasi-nude images, the embarrassment potential of which is likely to be mitigated by the fact that the x-ray view doesn’t really show an identifiable face.

I’m much more concerned about the social effect of making such machines commonplace—of creating a general norm that people who wish to engage in routine travel must expect to expose themselves in this way. As Michel Foucault famously observed, surveillance is not merely the passive gathering of information; it exerts a “disciplinary” power, creating what he called “docile bodies.” The airport becomes a schoolhouse whose lesson is that not even the most intimate spaces escape the gaze of authority.

In his fine book The Naked Crowd, legal scholar Jeff Rosen recounts presenting his students and other audiences with a hypothetical choice between going through a strip scanner and a “Blob Machine”—a similar scanner programmed to filter out the passenger’s body image and project any foreign objects (as determined by density) on a generic wireframe mannequin. Though he assured them that the Blob Machine was just as accurate at detecting hidden objects, he found that in every group some significant number of people still preferred to subject themselves to the strip-scanner, in what Rosen calls “a ritualistic demonstration of their own purity and trustworthiness.” But there may be more to it than that. To expose oneself, render oneself vulnerable, is also closely linked to rituals of subordination—not just in human cultures, but in the animal kingdom. Think of the pack dog signaling his recognition of the alpha male’s (or owner’s) dominance by rolling over to expose his belly. In the context of pervasive fear of terrorism, this kind of routine exposure is a way of reassuring ourselves of the power of our protectors, quite apart from whatever immediate utility the strip-scanners have as a detection and deterrence mechanism. We ought to be a little wary of any “security” measures that seem to feed into that psychological mechanism.

While I don’t think these sorts of considerations ought to be dispositive by themselves in particular circumstances where a security measure is otherwise justifiable in more conventional cost-benefit terms, I think a communitarian commentator in particular ought to be a lot more sensitive to the cumulative cultural effect of many such measures. Formal institutions and rules are important to the preservation of free societies, but so are background norms and expectations. A society that comes to accept as normal the routine observation of our naked bodies by authority as an incident to travel is, I think, in danger of losing some important cultural capital.

Betsy Markey: Misinformed or Misleading?

On NPR stations this morning, the “Power Breakfast” segment from Capitol News Connection profiled Rep. Betsy Markey (D-CO), who is fighting hard to keep her seat this year. The reporter noted:

She’s a Blue Dog, one of those fiscally conservative Democrats who frequently complicate things for Party leaders by insisting on spending offsets and the like.

A claim slightly complicated by the reporter’s earlier noting that Markey voted for the $787 billion stimulus bill, the health care overhaul, and cap-and-trade. How exactly does that make her a Blue Dog fiscal conservative? Oh, and in her first year she got a score of 19 percent on tax and spending issues from the National Taxpayers Union. The search for an actual Blue Dog goes on.

But I was really struck by this line about the massive stimulus bill:

MARKEY: [E]very economist from the far left to the far right was saying the government needs to step in because there was absolutely no private sector investment.

This is of course not true. Hundreds of economists went on record against the stimulus bill. The Cato Institute’s full-page ad with their names appeared in all the nation’s major newspapers. It is hard to imagine that Representative Markey missed it. If she wasn’t much on reading newspaper ads, lots of economists wrote op-eds and blog posts opposing the stimulus. If she didn’t read op-eds or blogs either, the ad and the economists were featured on dozens of television programs.

And so we come to the question in this post’s headline: Could Rep. Betsy Markey really be so misinformed that she actually believed that “every economist” supported a massive increase in spending and debt on top of TARP and the other bailouts?

This Week in Government Failure

Over at Downsizing Government, we focused on the following issues this week:

  • Could the results of the November elections be a nail in the Obama administration’s high-speed rail coffin? Let’s hope.
  • The U.S. Postal Service can’t afford its unions.
  • A new study finds that federal and state governments have wasted billions of dollars on subsidies for students who didn’t make it past their first year in college.
  • The Obama administration’s plan to fix Head Start with some bureaucratic tinkering is not “almost enough to restore a person’s faith in the federal government.”
  • Now is a good time to get rid of farm subsidies.

Note: Chris Edwards will be discussing Downsizing Government on Fox News’ Special Report With Bret Baier on Monday @ 6:00 PM EST.

Andrew Cuomo and the Gunmaker Litigation

There are many reasons to be glum about the impending coronation of dynastic heir Andrew Cuomo, now leading in the New York governor’s race against a GOP opponent (Carl Paladino) who at first polled decently but has since stumbled. Some fret about the Democrat’s reputation for political hardball: former governor Eliot Spitzer (Eliot Spitzer!) last month called Cuomo the “dirtiest, nastiest political player out there,” which is like being called overdressed by Lady Gaga. Others find Cuomo too much of a camera-chaser as attorney general in Albany, and almost everyone is queasy over his role (as Clinton-era housing secretary) in encouraging risk-taking by federally backed Fannie Mae and Freddie Mac, leading by direct steps to today’s ongoing mortgage crisis. (For background, see Wayne Barrett’s famous 2008 Village Voice article.)

I have a different reason for cringing at the idea that voters would ever elevate Andrew Cuomo to higher office, and it’s also based on memories of his tenure as housing secretary. Not the Fannie-Freddie-subprime end of it, although I concede that in a strictly economic sense those were the most damaging things he did. No, what I find permanently hard to forgive is the way Cuomo threw himself into the role of chief national cheerleader for the municipal anti-gun litigation of the 1990s and early 2000s.

Because that litigation mostly fizzled out, it is now only half remembered and doesn’t much feature in Cuomo profiles. At the time, though, it was a close-fought battle and a big story. More than 30 cities and counties sued firearms makers, alleging that courts should hold them financially responsible for the costs of urban shootings. The cry was to make guns the “next tobacco,” following the successful litigation campaign against tobacco companies that extracted hundreds of billions of dollars for the benefit of state coffers (and private lawyers).

Of course there are enormous differences between the tobacco and gun businesses. One is that while major tobacco makers had billion-dollar revenue streams to share as part of a settlement, most gunmakers are smallish enterprises, often family-owned. And this in fact was a conscious element of the strategy for the lawyers who promoted the suits: because gunmakers were too thinly capitalized to withstand the costs of years of legal defense, it was thought they’d fold their hands and yield to “gun control through litigation” (explicitly couched as an end run against a then-Republican Congress resistant to gun control proposals). Smith and Wesson actually did yield to a settlement on this rationale, which soon collapsed following a public outcry from gun owners and others outraged by the use of extortive litigation to achieve gun control objectives. The gamble having failed, the suits eventually reached judges and were generally thrown out, but not before imposing huge and uncompensated costs on many small companies that had violated no laws. Some were bankrupted.

Mindful of traditional tenets of legal ethics that forbid lawyers from using the cost of legal process as a bludgeon, most backers of the suits prudently refrained from any hint that imposing unsustainable legal costs was part of the plan. One exception was Cuomo, who warned gunmakers that unless they cooperated, they’d suffer “death by a thousand cuts.” And another was then-New-York-AG Spitzer, who reportedly warned an executive of holdout Glock: “If you do not sign, your bankruptcy lawyers will be knocking at your door.”

I think Spitzer and Cuomo deserve each other, really. What I can’t figure out is why the good citizens of New York would want either of them.

Free Speech Means More Equal Speech

You might have gotten the impression that spending by outside groups in the current election cycle will fund a “giant bullhorn” for Republican candidates in the current election cycle while Democrats and liberals will have to whisper.

Yet the Rothenberg Political Report finds:

Throughout the election cycle, the National Republican Congressional Committee trailed the Democratic Congressional Campaign Committee in available money by at least a 2-to-1 ratio.

A detailed story in the Wall Street Journal summarizes “the Democratic Party and candidates had raised a total of $1.25 billion so far for the election. The comparable GOP figure is $1.1 billion.”

The Democrats enjoy, in other words, a $150 million dollar advantage, if we look only at party fundraising.

Now consider the outside groups:

In total, outside conservative groups—such as the U.S. Chamber of Commerce, American Action Network and American Crossroads—could spend more than $300 million on TV advertisements, campaign mailings and other efforts to elect Republicans to Congress this year. Outside Democratic groups, by contrast, plan to spend about $100 million on those activities.

But don’t forget the labor unions:

The largest labor unions say they will spend $200 million combined, but most of their focus will be on rallying union voters.

I conclude that the outside GOP groups will raise almost exactly as much as outside Democratic groups and the labor unions combined. The Democratic Party, however, will still enjoy a significant fundraising advantage over the Republican Party.

The Republican outside groups thus tend to level what would have been, absent their activities, a very unequal playing field in 2010.

I am not certain whether this closing of what would have been a huge Democratic fundraising advantage has anything to do with all of the complaints about “secret groups undermining democracy.” What do you think?

Libertarianism at the Britannica

I have an interview up at the Britannica blog on libertarianism. Or, as they put it, an interview on libertarianism and abortion, same-sex marriage, and the Tea Party. Multiple questions, to be sure.

I responded this way to a question on the inevitable inequalities of capitalism:

Inequalities in wealth are inevitable in all economic systems. In fact, the Economic Freedom of the World report finds that the share of national income going to the poorest 10 percent of the population is remarkably stable no matter what the degree of economic freedom in the country (see exhibit 1.9). What does vary is the absolute income of the poorest 10 percent, which is much higher in countries with more freedom (exhibit 1.10). Socialist states had and have huge hidden inequalities of wealth. Differences in access to privileges were staggering—special stores, hospitals, dachas and so on for party members that ordinary people could not enter, access to international travel and literature, etc. And all that in regimes that were officially dedicated to equality, in which inequality was “forbidden.” If inequality is inevitable, it’s better to have a system that gives people incentives to invent, innovate, and produce more goods and services for the whole society.

And my most controversial line:

There’s no libertarian pope, so I hesitate to excommunicate people for not being “true libertarians.”

Can You Name the Greatest President of the Past 100 Years?

It’s tempting to say that Ronald Reagan was the best U.S. president of the past century, and I’ve certainly demonstrated my man-crush on the Gipper. But there is some real competition. I had the pleasure yesterday of hearing Amity Shlaes of the Council on Foreign Relations make the case for Calvin Coolidge at the Mont Pelerin Society Meeting in Australia.

I dug around online and found an article Amity wrote for Forbes that highlights some of the attributes of “Silent Cal” that she mentioned in her speech. As you can see, she makes a persuasive case.

… the Coolidge style of government, which included much refraining, took great strength and yielded superior results. …Coolidge and Mellon tightened and pulled [income tax rates] multiple times, eventually getting the top rate down to 25%, a level that hasn’t been seen since. Mellon argued that lower rates could actually bring in greater revenues because they removed disincentives to work. Government, he said, should operate like a railroad, charging a price for freight that “the traffic will bear.” Coolidge’s commitment to low taxes came from his concept of property rights. He viewed heavy taxation as the legalization of expropriation. “I want taxes to be less, that the people may have more,” he once said. In fact, Coolidge disapproved of any government intervention that eroded the bond of the contract. …More than once Coolidge vetoed what would later be called farm allotment–the government purchase of commodities to reduce supply and drive up prices. …Today our government has moved so far from Coolidge’s tenets that it’s difficult to imagine such policies being emulated.

But if you don’t want to believe Amity, here’s Coolidge in his own words. This video is historically significant since it is the first film (with sound) of an American President. The real value, however, is in the words that are being said.