Government and Politics

March 25, 2020 3:12PM

Against the “Noble Lie” – COVID-19 Edition

The main political conflict in recent years is between experts or elites and non‐​experts. For lack of a better word, the non‐​experts are called populists. Their complaints have been specific: Elites and experts are arrogant, they have different values, they condescend in annoying ways, they ignore the sometimes legitimate concerns of populists, among others. Experts say that they should be listened to because they’re more knowledgeable. We see it in debates on every issue from climate change to trade, immigration, and everything in between.

The COVID-19 pandemic exposes another criticism of experts: They lie with noble intentions. And the consequences of those noble lies are quite negative.

A recent New York Times op‐​ed by Zeynep Tufekci exposes the danger of noble lies when it comes to limiting the transmission of COVID-19. She details the claims by public officials and health experts that masks don’t limit transmission. She wrote:

Many health experts, no doubt motivated by the sensible and urgent aim of preserving the remaining masks for health care workers, started telling people that they didn’t need masks or that they wouldn’t know how to wear them.

Those claims were simply untrue. Yes, healthcare workers need masks, but masks also reduce transmission outside of hospitals and clinics. Sick people who wear masks reduce their likelihood of transmitting the virus and healthy people who wear them reduce their likelihood of becoming infected. Tufecki pointed out the obvious contradiction: If masks don’t work, why do healthcare workers need them?

Noble lies are those knowingly propagated by elites or experts to advance a bigger agenda. I can’t think of a single noble lie that has led to better outcomes and most have done more harm than good. The arguments against mass use of face masks were noble lies intended for the good reason of attempting to reduce the mass consumption of face masks to conserve them for healthcare workers. However, they backfired quickly. Ultimately, that failure will cause even more harm down the line.

One source of harm is how social enforcers of new anti‐​COVID‐​19 norms respond. Enforcing these norms through pressure to not gather in large crowds, proper hand hygiene, to maintain social distance, and to stop shaking hands is positive. Those social enforcement mechanisms work best when everybody is basically on the same page about what works but they follow the norms to varying degrees. But if lots of people don’t trust the advice and they disagree about proper methods to limit the transmission of the disease because they’ve been misled by noble lies, social pressure will be contradictory and less effective at altering behavior.

Health experts, epidemiologists, medical researchers, scientists, and other experts have knowledge and experience that is valuable in containing COVID-19 and eventually wiping it out. They will eventually discover a vaccine and treatments that will benefit all of us. But without widespread trust in them, their jobs will be harder. Noble lies will reduce that trust and make it less likely that people will heed their advice and warnings. If some percentage of their guidance is a lie and we all know that they are sometimes lying, people will be less likely to listen or will cherry‐​pick which advice to follow. People will be more likely to consume snake oil, listen to grifters, and fall back on prejudices or other biases that will end up hurting themselves and others. And this will all happen rapidly in the current media market where information is cheap and available at a cost near zero, as it currently is.

Even worse, the noble lie does serious damage to expert culture as one noble lie can justify more lies that are increasingly less noble. Experts will justify less‐​noble lies on the precedence of previous lies that were nobler with no natural limiting principle. And they judge the nobility of the lie by the intent of the liar, which is a dangerous trap. This cycle can only destroy expert credibility.

A common justification for the noble lie is that people aren’t taking the current COVID-19 crisis seriously enough, so experts are justified in trying to “scare people straight” with a lie. The major problem, if the goal is to change other people’s behavior with additional information, is that they won’t be scared straight as soon as the lie is known. Thus, the noble lie will backfire.

Scaring people straight works better when scary truths are revealed rather than when lies are peddled. Emily Oster, economist and author of two superb books on pregnancy risks and raising young children, points out this problem in another area of medicine: alcohol consumption by pregnant mothers. She highlights a report published by the American Academy of Pediatrics with the headline finding that “no amount of alcohol should be considered safe in pregnancy.” Oster points out that the report itself contradicts that statement. She further details to another problem:

Reasonable people can differ, but when we lump together all levels of drinking—without really clearly focusing on what we should be concerned about—we risk losing sight of the groups that actually need help.

Heavy drinking during pregnancy is a big risk but exaggerating it means that the public can lose sight of the people most negatively affected. Perhaps some pregnant mothers can’t limit themselves to a small amount of alcohol so, for them, the better advice is not to drink at all, but that does not translate into a warning that no expecting mothers should imbibe ever. Exaggeration could mute the actual message: Drinking a lot while pregnant can do serious, permanent harm to your baby.

Experts and elites are more trusted when they tell the truth and expose non‐​obvious tradeoffs. Every action has tradeoffs, even those that are obviously a net‐​benefit. For instance, arguing in favor of lockdowns, quarantines, and travel restrictions while acknowledging that those actions will severely disrupt economic activities and lead to other, different health problems and early deaths. Those extra health problems and deaths may be worth it, but being open about that tradeoff and making the case honestly is the best that experts can do.

This doesn’t mean that experts should consider every non‐​expert objection and weigh them equally when considering a response. Anti‐​vaxxers can be safely ignored during the COVID-19 crisis, for instance. But it does mean that experts need to present the facts honestly and openly. Populists may not believe them, but it’s better to make an honest case for an action that isn’t believed than it is to make a dishonest case that is later exposed as the long‐​term costs in lost credibility are high. The present value of trust in experts is too valuable to be squandered on an ephemeral change in behavior bought at the expense of a lie.

As a libertarian, my preference is for as few government rules and regulations as required to build and maintain a free, peaceful, and prosperous society. In the areas where rules and regulations are necessary, they should be well‐​considered and guided by experts who understand the issue that is being regulated. There should also be consequences for making errors and rewards for being correct. Trust in those experts is fragile in even the best of times, but crucial for widespread popular acceptance which is necessary for the enforcement of any new policy. When some experts commit noble lies, it damages their credibility and limits the extent of their wiser (compared to non‐​experts) recommendations.

Tufekci ended her piece with this prescient warning:

Research shows that during disasters, people can show strikingly altruistic behavior, but interventions by authorities can backfire if they fuel mistrust or treat the public as an adversary rather than people who will step up if treated with respect. Given that even homemade masks may work better than no masks, wearing them might be something to direct people to do while they stay at home more, as we all should.

Experts should commit themselves publicly to always telling the truth and to banish the noble lie from public debate. By limiting the transmission of noble lies, hopefully we can do something to limit the spread of COVID-19.

March 13, 2020 4:24PM

Pizza Democracy

Some people actually like pineapple on pizza. Others sensibly do not. Bàcaro Pizzeria chain in Montreal decided to let its customers vote. Now me, I would think customers vote every day in what they order. But inspired by a vision of democracy, chef and co‐​founder Angelo Mercuri wanted to put the question to an actual vote. And he vowed that if the people rejected the Hawaii 50 pizza, it would be removed from the menu.

In the event, 53 percent voted no. “Democracy rules, and pineapple will never again show up on our menu,” Mercuri said. Of course, that means the 47 percent who like pineapple pizza (or just didn’t want to ban it) won’t be able to get the pizza they want. Mercuri has applied the dysfunction of political decision‐​making to the normal individualist functioning of the marketplace. I wrote about a similar example from Sesame Street in my book The Libertarian Mind:

In an election special, the Muppets and their human friends have three dollars to spend, and they learn about voting by deciding whether to buy crayons or juice.

Rosita: You count the people who want crayons. Then you count the people who want juice. If more people want juice, it’s juice for everyone. If more people want crayons, it’s crayons.

Telly: Sounds crazy but it might just work!

But why not let each child buy what she wants? Who needs democracy for such decisions? There may be some public goods, but surely juice and crayons don’t count.

Imagine doing this for other market decisions. As of 2019, Lenovo edged out HP for PC market share. So everybody gets a Lenovo, and HP, Apple, and other minority preferences are banished. Big Mac is more popular than the Double Cheeseburger, so no more Doubles. More people choose the Toyota Camry than any other passenger car, so it’s Camry for everyone.

Why would anyone want such a policy? Democratic decision‐​making is appropriate for choosing political leaders. It may be useful for making large public policy decisions that require a single answer. But it’s just silly to let customers vote on whether a menu item should be available to other customers.

Of course, Monsieur Mercuri may be crazy like a fox: his silly vote made the local paper, and NPR, and now this blog post.

March 11, 2020 10:58AM

Illiberalism Ascendant

Protocol reports:

Senator Amy Klobuchar [announced] a new bill to crack down on monopolies, including shifting the burden of proof onto companies to demonstrate they’re not suppressing competition and fining anticompetitive giants up to 15% of their revenues.

In a liberal government, government officials must carry a burden of proof to limit the liberties or rights of individuals. For example, to put someone in jail, prosecutors must show they violated the law beyond a reasonable doubt.

In an illiberal government, individuals must prove to government officials that they do not deserve having their liberties or rights restricted. In an illiberal government, individuals must prove to the government that they have not violated the law. This assignment of the burden of proof underpins ideals like the rule of law and due process.

A timely reminder then, that liberal government should not be taken for granted.

March 4, 2020 1:37PM

Rising U.S. Life Expectancy Reflected in 2020 Candidates

Every remaining major candidate vying to become a nominee for the U.S. presidency is a septuagenarian. While the aged field of candidates comes with its own set of concerns, it is a sign of the country’s progress toward keeping people alive and healthy for longer than ever before.

In the race for the highest office in the land, the so‐​called Silent Generation is making itself heard. Senator Bernie Sanders (D‑VT), the oldest candidate, is 78 years old, as is former New York mayor Mike Bloomberg, who dropped out of the race this morning. Former vice president Joe Biden is 77 years old. President Donald Trump is 73 years old. At 70 years old, Senator Elizabeth Warren (D‑MA) is the youngest of the major candidates. She was born in mid‐​1949.

Several major candidates have birthdays coming up before the Election Day. By November 3rd, Senator Sanders will be 79, President Trump will be 74 and Senator Warren will be 71 years old. Biden will turn 78 shortly after the election, on November 20th.

When the current President was sworn into office at the age of 70, he was the oldest president ever inaugurated in the United States. It looks like he or whoever assumes the presidency in 2021 will beat that record.

Even among the minor candidates still in the race, septuagenarians are represented. Former Massachusetts Governor Bill Weld, who is challenging the president for the Republican nomination in a protest campaign, is 74 years old. Congresswoman Tulsi Gabbard (D‑HI), who is polling at less than 2 percent nationally, is the only remaining candidate born after 1950. She is 38.

When the septuagenarian candidates were born, the polio vaccine was yet to be created, there were no commercial computers, no human being had yet been to outer space and interracial marriage was still illegal in several U.S. states.

In 1950, U.S. life expectancy stood at 68.2 years, according to the U.S. Center for Disease Control and Prevention (CDC). The U.S. life expectancy has soared since then and a temporary dip over the last couple of years due to the opioid epidemic has since reversed. The CDC’s most recent figures estimate that the U.S. life expectancy reached 78.7 years in 2018—an increase of 0.1 year from 2017. That means that just within the lifetime of Senator Warren, the youngest major candidate, U.S. life expectancy has expanded by over a decade.

“Healthy life expectancy” or the number of years one can expect to enjoy good health, has also increased significantly. An American can expect to enjoy around 68 and a half years of good health, on average, according to the World Health Organization’s most recent estimate, for 2016.

The actuarial tables suggest that whichever septuagenarian wins in November, he or she will likely survive the next four years. Based on the average for their age, that’s a 76.8 percent chance for Sanders; 79.2 percent for Biden; 84.8 percent for Trump and, reflecting that women tend to outlive men, a 91.8 percent chance for the relatively youthful Warren. Still, there is no doubt that the vice presidential candidates will matter more than usual this election cycle.

The country’s Founding Fathers likely could not have imagined a future with such remarkable longevity. The septuagenarian field of major candidates has sparked concerns over the state of the various candidates’ health and mental acuity. While those worries should be taken seriously, the fact that so many septuagenarians are running reflects the broader demographic trend of Americans living longer, healthier lives and remaining active for many more years—a fact that should be celebrated.

March 2, 2020 12:48PM

Supreme Court Proves Me Wrong on Judicial Deference

When it comes to the Supreme Court, it’s a fool’s errand to prognosticate. Take, for example, my post from last week.

Back then, I’d “read the tea‐​leaves” of the Court’s refusal to review Baldwin v. United States. Long story short: Baldwin had been the perfect vehicle for taking on the famed Chevron doctrine of obsequious judicial “deference” to an agency’s interpretation of the law. By passing on the case, I’d speculated “that Chevron reform is on the [Court’s] backburner.” To reach this conclusion, I had inferred much from Justice Gorsuch’s silence.

Well, it took a week to prove me wrong.

This morning, in a “statement” to an order with which he agreed, Justice Gorsuch went out of his way to announce that “Chevron [deference] has nothing to say about the proper interpretation of the law before us.” Again, there was no reason to bring this up.

He then proceeded to explain why the lower court was wrong to rely on the Chevron doctrine. For starters, the government expressly disavowed deference. Despite this concession, “the [appeals] court proceeded to uphold the agency’s new rule only on the strength of Chevron deference.”

Gorsuch further noted that the controversy entailed criminal sanctions and that deference is disfavored in this context.

Finally—and by far of greatest doctrinal importance—Gorsuch said the following:

And these days it sometimes seems agencies change their statutory interpretations almost as often as elections change administrations. How, in all this, can ordinary citizens be expected to keep up—required not only to conform their conduct to the fairest reading of the law they might expect from a neutral judge, but forced to guess whether the statute will be declared ambiguous; to guess again whether the agency’s initial interpretation of the law will be declared “reasonable”; and to guess again whether a later and opposing agency interpretation will also be held “reasonable”? And why should courts, charged with the independent and neutral interpretation of the laws Congress has enacted, defer to such bureaucratic pirouetting?

Here, Justice Gorsuch is getting at the crux of the problem with the modern leviathan. Now that policymaking flows primarily from the executive branch (rather than Congress), it follows that every presidential election initiates a tectonic shift in the federal regulations that affect every aspect of the economy and personal conduct. In turn, these endless flip‐​flop‐​flips are abetted by the Chevron doctrine. Gorsuch is implying that, at some point, these vacillations, per se, become unreasonable. At this point, Chevron would be unavailable.

Justice Gorsuch concluded by noting the Court does not suffer from a “lack of concern” over these issues. Which is basically the opposite of what I said last week, though I’m happy to be wrong.

What does it all mean? Notwithstanding last week’s misfire, I’m again going to channel Carnac the Magnificent. From my vantage point (this week), it doesn’t appear as if the Court wants to take on Chevron directly; rather, the Court seems to be open to narrowing the doctrine.

To this end, Justice Gorsuch indicates some potential limits. For example, Chevron might be denied where the government forsakes it, or where criminal sanctions apply. While these would be welcome reforms, Gorsuch lends tantalizing hints of a much bigger limitation, one that would profoundly change the administrative state for the better. Namely, he suggests that Chevron may be unwarranted where the government’s interpretation ushers in the umpteenth reversal in a major regulatory policy.

January 9, 2020 10:04AM

How to Make Congress Great Again

As I’ve argued repeatedly, Congress is a shell of its former self.

In last Sunday’s Washington Post, Paul Kane made the same point specifically with respect to Congress’s upper chamber. He wrote:

The Senate tasked with holding President Trump’s impeachment trial would be unrecognizable to most of its predecessors … By almost every measure, today’s Senate is the least deliberative in the modern era of a chamber that bills itself as the world’s greatest deliberative body.

Congress’s weakness threatens liberty because it reflects a breakdown of the Constitution’s structural check on overbearing government. In modern America, policy flows from regulatory agencies known in the aggregate as the “administrative state.” From 1995 to 2017, the executive branch issued over 92,000 rules, compared to 4,400 laws enacted by Congress.

Over the last forty years, alas, Congress abandoned oversight of the agencies it had legislated into existence. Meanwhile, the president’s grip over administrative policymaking tightened with each successive administration.

With Congress M.I.A., the president has become the policymaker‐​in‐​chief at the head of the administrative state. Indeed, the presidency has become so powerful that one of the two parties in Congress—roughly half the legislature—loses interest in executive overreach whenever “their guy” occupies the White House.

Our constitutional system of separate and competing powers—a bulwark for liberty—is dangerously out of whack. Which raises a crucial question: What do we do about it?

In the latest issue of InFOCUS quarterly, I offer a menu of options to “Make Congress Great Again”:

So, how do we make Congress great again?

Congress might be compelled to get its act together, even if it doesn’t want to.

For almost 80 years, the Supreme Court has refused to police how much power Congress transfers to the executive branch … [Yet] [f]or the first time since the New Deal‐​era, a majority on the Supreme Court has expressed a willingness to revisit the nondelegation doctrine. Were the Court to add teeth to its “intelligible principle” test, then Congress would be forced to curtail the breadth of its delegations to the executive branch.

Turning from the Supreme Court to Congress, there are many institutional reforms that the legislature could take to empower itself vis‐​a‐​vis the presidency.

Starting with the easiest measures, Congress could remedy its anemic staffing. In fact, the current level of committee staffing is commensurate with levels from the early 1970s, even though government has grown much larger and more complex in the five decades since.

Congress also could create new institutions to better compete. In the early 1980s, the president unilaterally established the Office of Information and Regulatory Affairs (within the Office of Management and Budget) to manage regulations out of the White House. Yet Congress has no commensurate capacity. There is an obvious need for Congress to create its own comparable mechanism to oversee agency rules.

Congress could adopt simple legislative fixes. For example, lawmakers used to regularly limit the clock on their delegations, such that an agency’s regulatory authority expired after a given time. These “sunset” provisions force Congress to periodically review the programs it creates, before these regimes are re‐​authorized.

Or lawmakers could make greater use of “resolutions of disapproval,” which allow them to veto individual regulations … 

If it wanted to get bold, Congress could pass more comprehensive reform. The Regulatory Accountability Act, for example, would require agencies to better justify rules that cost more than $100 million.

And if Congress wanted to regain the upper hand in one fell swoop, the House and Senate would get behind the REINS Act, which would require both chambers of Congress to approve all major regulations before they took effect.

These reforms are fantastic ideas, to be sure, but they’re all nonstarters for as long as love of party trumps institutional pride in Congress. You can lead a horse to water, but you can’t make it drink. Even were Congress to pass REINS, no doubt the House and Senate could find a way to avoid accountability.

Most likely, we need a new type of lawmaker, one who is cut from old cloth …

Read the whole thing here.

January 2, 2020 10:42AM

Wall Street Journal Editorial Board Misses the Mark on Congressional Staffing

Most days, the Wall Street Journal OpEd page runs multiple unsigned editorials next to the letters and across from the opinion columns. Last Friday, however, the Editorial Board gave its entire platform to a single composition, titled “Elizabeth Warren Has a Plan, Oh My.”

The editorial’s thesis is to “show where the American left wants to go” by presenting Senator Elizabeth Warren’s (D‑Mass.) campaign platform for president, which “exceeds what the socialist dreamers of a century ago imagined.”

The guts of the editorial are 26 bullet points each describing Warren’s policy initiatives, including “Wealth tax,” “Medicare for all,” and “Free college.” After listing Sen. Warren’s various “plans for that,” the WSJ Board concludes:

All this adds up to such an expansion of government that the temptation is to dismiss it as fanciful. But Ms. Warren is a shrewd and disciplined politician who isn’t supporting these ideas on an ideological whim … The question for Democrats: Is this the agenda they want to put forward in 2020?”

For my part, I’d add that Republicans are little better than Democrats on this score, at least in practice (if not in campaign rhetoric). Last month, for example, large bipartisan majorities in Congress passed a $1.43 trillion spending bill—up $50 billion over the previous year—that also raises the legal vaping age to 21. Our Republican president quickly signed the package. The upshot is that both parties collaborated on a spending bill defined by principles of Big Government and the Nanny State.

Setting aside the limited scope of the Editorial Board’s case, I have a bone to pick with one of their policy arguments against Sen. Warren.

Specifically, the editorial’s last bullet point, titled “Miscellaneous,” includes Warren’s pitch to “give congressional staff ‘competitive salaries.’” If the WSJWSJ‘s‘s institutional voice is to be believed, then lawmaker spending on congressional staff reflects the “expansion of government” and even “socialism.”

I share the Board’s concern regarding overweening government, but I think the editorial misses the mark on Congress’s support personnel. Though perhaps counter‐​intuitive, investment in congressional staff is an essential complement to the WSJ’s avowed goal—that is, checking the “expansion of government.”

Of course, Big Government today is largely coterminous with the administrative state. From 1995 to 2017, the executive branch issued over 92,000 rules, compared to 4,400 laws enacted by Congress. The regulatory agencies behind all this lawmaking didn’t materialize from thin air; rather, they were created by legislation, and Congress paired these “delegations” with an oversight framework.

Passed during the administrative state’s adolescence, the 1946 Legislative Reorganization Act established Congress’s strategy for supervising the regulators. The Act tasked issue‐​specific committees with a duty to conduct “continuous watchfulness” over administrative policymaking. To execute this mandate, the Act provided committees with professional staffs.

By design, therefore, committee staffers are crucial cogs in Congress’s oversight machinery, and this understanding served as conventional wisdom among lawmakers through much of the last century. Yet this prevailing sense abated during the 1980s and, ultimately, disappeared by the mid‐​1990s.

What happened? A shifting power landscape on Capitol Hill led to the decline of staff, both in status and number.

After World War Two, committees were the most consequential institutions in Congress; now, parties fill that role. Part of the reason for this change is demographic: The parties became more homogenous with the demise of southern Democrats and northeastern Republicans. At the same time that party rank‐​and‐​file were taking on hive‐​minds, opportunistic party leaders gamed the House and Senate rules to centralize power in their hands.

For ascendant party leadership in Congress, strong committees were a roadblock to the consolidation of authority. To weaken committees, party leaders sought to weaken committee staff.

Matters came to a head in 1995 on the first day of the 104th Congress, when Speaker Newt Gingrich and Republican leadership slashed committee staff by one‐​third, and the Senate soon followed suit. Because it was in the interest of both parties’ leaders to subdue committees, staffing never recovered

For example, there were 2,115 professional personnel in House and Senate standing committees in 2015, or less than two‐​thirds the total in 1991 (3,528). To be fair, party leaders invested in some parts of Congress–themselves. From 1995 to 2011, House and Senate leadership staff increased 35 percent and 38 percent (respectively).

Simply put, Congress doesn’t have the tools to oversee the administrative state it created. The WSJ grows a false narrative when its Editorial Board opines that Warren’s plan for congressional staff reflects an “expansion of government.” In a less sincere tone—his real purpose was power—Rep. Gingrich advanced the same arguments when he dropped the ax on committee staff in 1995. Though untrue and often disingenuous, it makes for a great talking point to claim that Congress should lead by example by starving itself in the name of fiscal prudence. Anyone who claims otherwise is branded as a spendthrift. That’s why staffing levels have never recovered.

In conclusion, I’ll turn to R St. Institute’s Casey Burgat, who’s been sounding this alarm for a while. He warns:

As the size and complexity of the federal government has continued to grow, Congress has deprioritized spending within the offices most responsible for legislating and conducting Executive Branch oversight.