George Will’s Retelling of Citizens United

It takes a special level of arrogance—a George Will level of arrogance—to describe the Citizens United decision as “unremarkable.” One might argue that the scope and duration necessary for any controversy to be resolved by the Supreme Court definitionally renders it worthy of remark. Regardless of your preferred outcome in that case, a decision like Citizens United, one in which the Court ordered re-argument on issues not presented in the original brief, one in which the Court overturned a federal law and overruled its own caselaw, and one that was decided 5-4, is certainly worthy of remark.

Will’s mischaracterization of Citizens United does not yield there. No, Will wrongly frames Citizens United as a case over whether individuals yield their First Amendment rights when they join a corporation or a labor union. While this frame—divorced from reality though it is—allows Will to wrap himself in self-righteousness, it both obscures the reality of the decision and ignores the fact that at will employees may indeed forfeit their First Amendment rights when employed.

In fact, the Citizens United decision had little to do with individuals. Instead, the Court determined that the government “may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.” In arriving at this conclusion, the Court took a number of interesting turns, including its determination that the only present danger of corruption is that of so-called quid pro quo corruption and that there is no such danger when a corporation (or union) spends vast sums of money to get a candidate elected so long as they do not give the money directly to the candidate. You are correct: that makes no sense.

But these pesky facts do not stop Will from engaging in a polemic defense of a supposed liberal assault on free speech. While Will busily makes himself the defender of “free speech,” “political speech,” and the “First Amendment” (quoted because of the shear repetition with which Will deploys these terms) in the face of some supposed liberal assault on speech, he manages to make a hash of both history and logic.

Will labels an ABA article as false for correctly noting that Citizens United enabled so-called Super PACs (not PACs at all). Indeed, these organizations would not be possible were it not for Citizens United (with a boost from Speech Now). Will then embraces what has apparently become the Right’s favorite logical fallacy to defend Citizens United: because the Republican primary this year was long and occurred after the Citizens United decision, the Citizens United decision must be the cause of the primary’s length (in this, the best of all possible worlds). Moreover, because a long primary requires political speech, there must be more political speech this year than in previous years—and this must be due to Citizens United! Citizens United improved the quality of our democracy, silly Liberals.

The logic here is nonsense, of course. Worse, the premise is false. The Democratic primary in 2008—before the Citizens United decision— lasted several weeks (and, effectively, two months) longer than the Republican primary campaign this year. More than two times the total number of votes cast in the 2012 Republican primary campaign were cast in the 2008 Democratic primary campaign: 35,442,193 to 16,110,412. But you need not rely on 2008 to attack the premise of Will’s argument. The Democratic primary in 2000 lasted only until March 9 but there were more than 13 million ballots cast in that contest. And the Republican contest that year saw more than 19 million ballots cast! I could go on.

Citizens United, whatever Will may say, is a truly remarkable decision. It has also resulted in a tremendous increase in the amount of money spent on elections. Whether it has improved the quality of speech and debate, whether it has increased the number of voices, and whether it has improved our democracy are more difficult questions to answer. Those are questions worthy of debate—real debate, not the specious variety Will is here trafficking in. 

No One Could Predict

That over-reliance on drone strikes might undermine our long-term strategic objectives: 

“These attacks are making people say, ‘We believe now that al-Qaeda is on the right side,’ ” said businessman Salim al-Barakani, adding that his two brothers — one a teacher, the other a cellphone repairman — were killed in a U.S. strike in March.

See also "No End In Sight." 

Constitutional Reform

Sanford Levinson writes in today's New York Times:

What was truly admirable about the framers was their willingness to critique, indeed junk, the Articles of Confederation. One need not believe that the Constitution of 1787 should be discarded in quite the same way to accept that we are long overdue for a serious discussion about its own role in creating the depressed (and depressing) state of American politics

Levinson's Op-Ed, highlighting several political obstacles hindering decisive action by the federal to address pressing national challenges, is interesting but its analysis leaves something to be desired. Most of his handful of suggested reforms would enhance the power of the President. Such Executive aggrandizement--by allowing the President to weight Congress; by allowing the Congress to override the Judiciary's pronouncements on the Constitution; by requiring a super majority for the Supreme Court to exercise judicial review--may lead to an Executive Branch that is more nimble and more effective in dealing with the challenges present in Levinson's mind. But that agility will be limited to those problems. And Executive strength is not something for which we want currently. 

It seems to this observer that the inability of the country to address its most pressing challenges stems not from interbranch intransigence but from a weak and dysfunctional Congress. One might accomplish more--and do so more safely--by doing away with the Senate's cloture requirement--an act whose execution requires merely the Senate and no other organs of government. 

We could also elect better representatives. 

As If To Ensure A Sectarian Character

Al Jazeera describes the massacre in Houla thus:

Houla then came under an intense artillery barrage that killed about 15 villagers. Members of the shabbiha then entered Houla from the nearby Alawite villages and killed scores of men, women and children by hacking them or shooting them at close range.

Why Drones Are Different—And Why They Aren’t

For the last few years, unmanned aerial systems (“drones”) have been the source of a number of sometimes overlapping debates. For example: Are drone strikes legal? When are they legal? Are drone strikes dishonorable? Are they counterproductive when used in COIN?

At the same time, a parallel debate over whether these other debates (relative merits aside) are a waste of time altogether. The question animating this corollary debate is whether drones are in fact different from the other weapons platforms available to U.S. policymakers. At heart, this debate centers around the sense that for all their virtues, drones are really just air systems. They fly. They launch missiles. They come home. Sure, drones are unmanned. But so are cruise missiles.

In general, the drones are really just air systems approach is the correct one. Drones and their operators are subject to the same law as manned air craft and their pilots, for example. Unfortunately, hewing too closely to this position tends to lead observers to ignore or discount the ways in which drones actually are different—and why these differences have caused drones to be perceived so differently by the public and policymakers alike.

Unlike manned systems or cruise missile or most other standoff platforms, armed drones are able to stay on station for incredibly long periods of time. Whereas an F-15, for example, can remain airborne for only about 5 hours without refueling, a (now obsolete) MQ-1 Predator is built to loiter over a target for 14 hours (and at least one declassified flight lasted for 40 hours) and MQ-9 Reapers are built to loiter for 24 hours.

Also, unlike manned systems, drones are expendable. Necessary support infrastructure aside, individual drones are substantially cheaper to purchase than their manned counterparts. An F-15E costs approximately $31 million dollars; an individual MQ-9 Reaper costs about $13 million. Although that price tag blows a cruise missile out of the water—depending on the version, a Tomahawk will cost between $500,000 and $1.5 million—a cruise missile delivers just one warhead and returns no intelligence.

Finally, unlike manned systems, drones are unmanned. That is, putting a drone in harm’s way does not put a pilot in harm’s way. This seems like an obvious point but the impact of it has been discounted in some circles. No, the absence of an onboard pilot does not mean there are no U.S. (or allied or proxy) personnel on the ground supporting the operation. Nor does it mean, absolutely, that the United States will not suffer casualties. One need only look at the suicide bombing of FOB Chapman in Afghanistan in December 2009 for evidence of U.S. casualties directly related to the operation of armed unmanned aerial systems over Pakistan. But U.S. personnel are not necessarily in proximity to the targets of U.S. drone strikes—in stark contrast to strikes by manned systems.* What’s more, although drones operate almost exclusively in permissive environments—those where air defenses are actually or effectively non-existent—which means that manned systems would face a low probability of being shot down in the same airspace, removing the pilot also removes the more realistic threat (in these environments) of casualties due to accidents, weather, or operator error.

Although infrequent losses of U.S. personnel due to these causes may seem relatively trivial, the impact on policymakers is clearly not. The fact that the United States is relying on drones instead of manned systems despite the limitations of drones is a prima facie indicator that policymakers in fact view drones as different from other systems. This is likely due to the fact that, as described above, drones have operational capabilities that are not matched by other standoff platforms. More compelling, the unique capabilities of drones are paired with a tantalizing ability to avoid or minimize U.S. casualties. When a policymaker dispatches drones to survey and attack a target, that policymaker need not worry about images of U.S. pilots being dragged through the streets of some God-forsaken warren in Mogadishu, Sana, or Peshawar. Nor does that policymaker have to worry about the political backlash that such images would engender.

Again, it is tempting to downplay the impact that casualties (or potential casualties) have on policymakers. Doing so is folly, however. The relative marginal effect of casualties on public support for U.S. troop deployments has steadily increased since World War II. That is, the public was more tolerant of U.S. casualties in World War II than Korea, in Korea than Vietnam, Vietnam over the most recent war in Iraq. Avoiding U.S. casualties was one of the primary drivers of U.S. decision making around the 1990–1991 Gulf War, leading both to the large (and long) deployment of U.S. forces, and the decision to curtail operations after liberating Kuwait (rather than going to Baghdad, e.g.).

Casualty-avoidance is a good thing for numerous reasons, including that it encourages the safety and protection of U.S. personnel. It also reduces the likelihood that policymakers will rely on force—or significant amounts of force—for fear of evoking the ire of the public (over U.S. casualties) and facing electoral sanction.

But offering policymakers a use-of-force option like that of drones, which promises nearly cost-free (or casualty-free) use-of-force is problematic. First, it may lead policymakers to wrongly believe that drone strikes are in fact insulated from casualties. As noted early, these strikes often involve spotters on the ground who may become casualties. We have already witnessed one suicide bombing that directly targeted drone operations. Second, it may lead policymakers to rely on force in situations where force is either unwarranted or warranted yet ultimately counterproductive to the overall mission—whatever that happens to be. Indeed, the extent of the drone campaign in Pakistan, and its growing scale in Yemen, suggests that the United States is already using force in situations it would not have previously. There are second order effects of such frequent uses of force—for instance, the frequency of drone strikes in Pakistan likely placed the United States in an armed conflict in Pakistan, making the civilian (CIA) drone operators unprivileged belligerents there. Third, the brilliance of the virtues of drones may obscure their costs, leading policymakers to rely on drones when a riskier means of using force may be more appropriate. Fortunately, in at least one high-profile situation (the killing of Osama bin Laden), the United States chose to rely not on drones (or manned air systems), but on a higher-risk deployment of SEALs.

*It is also worth noting here that manned strikes may also involve the presence of spotters on the ground. Thus the drone strikes that rely on similar spotter arrangement are, at the very least, removing one or two U.S. (or allied or proxy) personnel from harm’s way.




UPDATE: Dan Trombly kindly took the time to both link and respond to my post at his own blog. I'm (mostly) off the grid for work so I've only skimmed it. It's a solid post and I hope to respond in the coming days. In the meantime, go read it. 


UPDATE2: Buried at the end of the Joe Becker and Scott Shane's excellent piece in the New York Times on President Obama and Targeted Killings is this bit from former Director of National Intelligence Dennis Blair: 

Mr. Blair, the former director of national intelligence, said the strike campaign was dangerously seductive. “It is the politically advantageous thing to do — low cost, no U.S. casualties, gives the appearance of toughness,” he said. “It plays well domestically, and it is unpopular only in other countries. Any damage it does to the national interest only shows up over the long term.”

The Neoliberal Bender & Today's Hangover

Alasdair Roberts has an interesting post up on Foreign Policy blaming the American people, and our enthusiastic embrace of neoliberalism over the past 30 years, for why we find ourselves in such a political and fiscal calamity now.  There were parts I agreed with, but I think he misses a few things.

I very much agree that:

Americans wanted "a minimum of government authority," Ronald Reagan said while campaigning for the presidential nomination in 1976. "Very simply, they want to be left alone." And that was exactly the program enacted over the next quarter-century: Marginal tax rates were reduced, especially for the wealthy; social programs were restricted; controls on commerce and finance were removed. By the time 2000 rolled around, Reagan was remembered as one of the greatest presidents in modern history.
By then, the project of restricting government and liberating market forces was a bipartisan one. It was a Democrat, President Bill Clinton, who famously conceded in 1996 that the era of big government was over. Clinton signed the North American Free Trade Agreement in 1993 and a trade agreement with China in 2000, saying that this was "the only way we can recover the fortunes of the middle class in this country." He also signed laws that loosened federal control over the financial sector, promising they would actually "enhance the stability of our financial services system." 

But these moves, to remove government out of the lives of business and increasingly out of citizens' lives had consequences:

Unfortunately, the decades-long neoliberal project had a price, which became increasingly obvious in the new millennium. The removal of trade barriers put U.S. jobs at risk, while lowering top tax rates and loosening the social safety net aggravated problems of inequality. Lighter regulation encouraged overexpansion and recklessness in the financial sector. Even before the 2007-2008 crisis, Americans were uneasy about the effects that followed from policies they had once enthusiastically endorsed. In 2004, according to an ABC News poll, a majority of Americans believed that they were no better off than when Reagan was inaugurated. In a 2006 CBS poll, two-thirds of respondents doubted that the next generation would be better off than they were. And in an April 2007 Gallup poll, a similar share said that wealth in the United States was unfairly distributed.

What was seen as a good thing for our capitalist system, wasn't always a good thing for the individuals living in it and the elimination of social programs left people exposed to the harsh reality of laissez faire economics.  We instituted policies that did little to stifle the widening income gulf and we did little to redistribute wealth.  That notion was considered a dirty term (and indeed one I know will be questioned in the comments). So we find ourselves when Americans are feeling less optimistic about the future their children will face and a growing sense that income inequality is becoming a larger problem for the country.  In these moments, a polity will often look to their government for recompense, but cue the cognitive dissonance:

Popular attitudes about the handling of the crisis also reflected a deep ambivalence about the role of government in economic life. There was widespread anger at not just the rating agencies, predatory lenders, and fat-cat bankers, but also at the apparent cost of bailouts for the financial sector, along with opposition in principle to interventions like the takeover of General Motors. And as the government took on these onerous, unwanted economic necessities, many also worried about the rising federal debt. But there's little doubt that the public would have been equally outraged if the Obama administration had actually followed a strict neoliberal path of nonintervention and deficit reduction. It would have been seen as cruel and inhuman.

The government found itself in a true "damned if you do, damned if you don't" situation. And so this is where we find ourselves now and as Roberts closes he poses a challenge as a question to the American people:

[N]ow the limitations of the neoliberal project have become painfully clear. At that time, most Americans approved of smaller, more hands-off government. The question now is whether they will accept the consequences.

And this takes me into my critique and comment.  It is no secret, I'm a proponent of a strong federal government, but some of what Mr. Roberts says isn't quite right and some of the big drivers for our current conundrum aren't addressed.  The first and most easily dismissed is that people got a "smaller" government.  If you look at the chart for federal spending since Reagan, whom Roberts marks as the starter of this movement, we never get below 18% as a percentage of GDP (perhaps targeting a revenue level of 18% of GDP is to encourage chronic deficits).  Basically what I'm saying is that government, even if it was largely more hands off in the business (and I believe it was), it wasn't really smaller.


But if government wasn't smaller, but also wasn't doing as much, what was going on?  In this CBO report, you'll see in Table E-6 that mandatory programmatic spending as a percentage of GDP is growing very rapidly, but discretionary spending as a percentage of GDP was actually at the lowest level since 1971 in 1999 and 2000.  This would reinforce the argument that government was more hands off, even if on the whole, not that much smaller since discretionary spending is where the reach of government beyond Medicare and Social Security is captured. And then following on to Table E-10, you'll see spending on Social Security as a percentage of GDP has largely been flat for the past 30 years, while spending on Medicare and Medicaid have been reaching upward.  During this period we also saw defense spending that was consistently 20% of all government expenditures.


So the neoliberal experiment took a lot of government out of people's lives as discretionary spending declined.  We found ourselves with a surplus in 2000 and determined that the best thing to do would be to cut taxes, but this decision was based on flawed observations and followed up by fiscally calamitous decisions.  First, the decision to cut taxes ignored that our mandatory spending commitments, on two very popular programs, were continuing to grow.  Second, the tax cuts were followed by two wars financed entirely by debt.  As our deficits yawned ever wider we were hit by the worst recession since the Great Depression.  The government took decisive and expensive action to prevent the economy from backsliding, a move quite apart from the preceding decades.  And to some degree those moves worked.  Like a boxer that just took a thundering cross, our economy is stumbling around the ring, but still on its feet.


But here's the rub, a lot of people have learned the wrong lessons.  The cost of Medicare and Social Security continue to grow and now discretionary spending is also on the rise to help people deal with the economic downturn.  Instead of considering that the Bush tax cuts were ill-advised, that the revenue brought in is insufficient to pay for the programs the government does run and that are quite popular, we hear that this is in no way a revenue problem.  These wrong lessons are reinforced by the cognitive dissonance that leads to letters like this, where people demand government stay out of their Medicare.  Those wrong lessons lead to a stage full of GOP presidential candidates to reject a deal that would guarantee $10 in spending cuts for every $1 in revenue.


I don't know about you, but if I've run up a lot of debt, I tend to thinking making more money is a good way to try and get out of that hole.  The GOP is pretty keen to wrap themselves in common sense.  Common sense would dictate we need more money to pay for our current obligations and pay down the obligations we already made.  Our neoliberal bender has led to a hangover and its led to an important choice for the country.  Do we take the "hair of the dog" approach and double down leading to some sort of libertarian vision where the federal government is starved and budgets slashed?  Or do we take the Vitaminwater approach, realize we made some bad choices and embrace the changes we need to get ourselves right and preserve the programs we want?


The critiques I have of Roberts' piece are all around the edges.  I think we agree on the overriding point.  The American people didn't want as much government and didn't want to pay for a well funded federal government, but wanted the stuff the federal government provides.  That approach has failed.  It's clear if we want stuff from the government, we will have to pay for it.  This summer a Pew Research Center poll found that 60% of respondents want to keep the benefits of Medicare and Social Security as they are.  That's a convincing majority, but we have to pay for it.

In re Lebanon and Proxy Fights

A good example from the AP today on how not to describe the civil war in Lebanon:

The violence is a reflection of Lebanon's political dysfunction, a legacy of years of civil war when the country became a proxy battleground for other nations. Lebanon walks a fragile fault line over Syria, which had troops on the ground here for nearly 30 years until 2005 and still has strong ties to Lebanon's security services.

As I noted last week, the better way to view outside involvement in Lebanon's protracted civil war is to recognize that would-be sponsors were more often than not captured and manipulated by their supposed proxies. Outside actors like Syria and Israel had little or no control over the conflict. Instead, they were frequently thrown over by their proxies for a better deal with a new sponsor. The Lebanese militias drove that conflict and not foreign states.