Bad Faith

Just prior to Election Day a friend observed that we’re going to need new laws and new structures to prevent the corruption, self-dealing, and looting of the public treasury that have been the hallmarks of the Trump administration. “We can’t have ‘acting this’ and ‘acting that,’” my friend said. “We need to ensure accountability.” I told him that the laws already exist, and have for some time: but that enforcement is up to the Congress and the courts. With the Senate operating as a wholly-owned subsidiary of Trump, Inc.; and with a significant fraction of the Federal bench occupied by Trump appointees, the likelihood of anything actually being done is vanishingly small.

The problem isn’t that laws and structures don’t exist. The guardrails haven’t done much guarding these last four years, proving to be not such solid railings or firm barriers; rather, it turns out they are just suggestions, only as strong as public outrage and the other branches’ willingness and ability to enforce standards of behavior that have served the Republic well for two-hundred and forty-four years. I mention both “willingness” and “ability” because — as it turns out — the current administration has decided that the rules that have applied to every predecessor do not apply here. They have defied both congressional demands and court orders with alacrity, zealously undermining the institutions of democratic self-government while loudly claiming to speak “for the people.”

Well, the people have spoken and Donald Trump has been fired. He claims — falsely, as always — to have won with a “record” number of votes; and yes, his tally was indeed record-setting: more than ever for a second-place candidate. And let’s be absolutely clear: Biden’s victory was decisive, a margin of six million votes — nearly four percent. In an age when many elections are won and lost on razor-thin fractions, four percent is a landslide.

But the presidential falsehoods and GOP bad faith continue unabated: Dozens of failed lawsuits in multiple jurisdictions and attempts to strong-arm state elections boards and legislatures in Republican-led states will not change the outcome but they will undermine public confidence in elections, to the point where — as comedian Sarah Cooper tweeted recently — voters are asking courts to ignore the will of the voters. Reduced to its starkest terms: elections are legitimate if “we” win, but fraudulent if “they” win.

Of course it’s a bad faith argument. The essence of democracy — of voting — is that the outcome isn’t going to please everyone, all the time. Sometimes you win; sometimes you lose. That’s how the system works (when it works). Or as Christopher Krebs — fired last week for bucking Trump’s message that the election was fraught with fraud — noted last year, the purpose of elections is to convince the loser that he lost. This isn’t how we normally think about voting, but it’s dead on. Trump knows he lost; the people around him know he lost; Republican officials at all levels know that he lost. That they continue to sow doubt and stir up mistrust; that they say either nothing at all, or demur quaintly about “rights” to pursue false claims in court, says far more about them than it does about the actual results. They would cling to power by any means possible, the people be damned.

In 1982 the Republican candidate for New York’s 20th Congressional District (Upper West Side) lost overwhelmingly, 85%-15%. Of his defeat he remarked: “The people have spoken. The bastards.” If only today’s GOP could accept electoral outcomes with as much grace and dignity.

Fatigue (II)

Fatigue comes in many forms, and from multiple causes. The jingoists who have appropriated the flag and other national symbols as their own are fatigued, to be sure; but they misdiagnose the source. The rest of us — by which I mean the great majority of the American people — are also numb. Doubly-numb, in fact: for outrage fatigue settled in many months ago, probably early in 2018. As E.J. Dionne of the Washington Post observes:

Trump has, for the past four years, used the sheer breadth of the scandals that surround him to numb the public. No one focused long enough on any single outrage for it to do the damage even one comparable disgrace would inflict on any other politician.

It’s something we’re all familiar with and yet have been too fatigued to analyze or articulate. With so many outrages weekly, and often daily, we have neither the time nor the patience nor the sheer force of will to do more than commiserate: offenses against custom and institutional practice; offenses against families; offenses against ordinary decency. Offenses, most often, against our laws and the rule of law. We have been watching a slow-motion train wreck and have felt powerless to stop it: the people in power, in coequal branches of government, are content to do nothing so long as they get their judges and their tax cuts.

The price to this nation, Senators, was far too high. And you have sold your souls far too cheaply.

Fatigue (I)

A graph published this week in The New York Times documents the unacceptable reality: in the United States, today, the number of new infections daily is double what it was at the end of March — not long after Trump declared that cases would “soon be down to zero.”

Graph from NY Times 10/19/2020 with link to article.
Click the image to open the article.

We — the public — are seven months into this pandemic. The White House, with its intelligence briefings as far back as late December, has had ten months: more than the full gestation of an infant human or a calf, and nearly enough time to birth a horse, a llama, an elk, a seal. Given where we are today I believe its fair to say we will be lucky to return to something like a pre-pandemic normal some time before an elephant conceived in January 2020 is born, which would be next September or October.

And yet: Movie theaters are reopening, restaurants are back to serving indoors, and there is no shortage of people who still believe that their rights are trampled if they are obliged to wear a mask to protect the health of others. Of course this begs the question: Why is your right to be a jackass superior to everyone else’s right to avoid infection? The selfishness (not to mention the ignorance) is astonishing. Let’s be clear: the fact that our lives are slowly, even cautiously, returning to normal is hardly good news. It is a sign, rather, that after seven or eight months people are becoming desperate for some reassurance that it will all soon be over. It will not — and the fatigue currently driving people into the streets, into stores and restaurants, into the cinemas and health clubs, is almost certain to prolong, not curtail, our national suffering. A second wave is coming.

And yet: The people evidently most chafed by stay-at-home orders and mask protocols (“Don’t tell me what to do!”) evidently take their marching orders from a would-be autocrat. These are the people who plotted to kidnap the governors of at least two states to “protest” public health initiatives. Put another way: the self-styled patriots who object loudly to state authorities protecting the public health (by issuing mask mandates and requiring social-distancing protocols) have no objection to their “strong” leader deciding, on his own, who is worthy of state protection, who can stay, who must go, and who should go to prison. The human capacity for cognitive dissonance is without limit.

Trump himself called out the fatigue problem — as always, without a trace of irony or self-awareness — in a conference call with campaign staff: “People are tired of COVID. Yup, there’s going to be spikes, there’s going to be no spikes, there’s going to be vaccines. With or without vaccines, people are tired of COVID. I have the biggest rallies I have ever had and we have COVID. People are saying whatever, just leave us alone. They’re tired of it.” Of course people are tired of it: not the hearing, but the living. It has gone on for seven unnecessarily long months. Most other countries — including developing and third-world nations — have returned to a semblance of “normal” without the threat of spikes or the cloud of super spreader events. “But it came from China!” Aside from being factually suspect (the virus spread to the US from Europe, not China) it isn’t a reason for inaction. Blame-shifting might be effective to avoid responsibility among the more credulous; it never yet actually solved a problem.

Small Government and the USPS

Grover Norquist likes to say that government should be small enough that he can drown it in the bathtub. With the possible exception of Stephen Colbert, nobody has asked the obvious followup questions: And then what? Will you drown it? Why is that a good idea? How does that serve the American people? Republicans and libertarians are fond of talking about small or even tiny government, but the former are so lost in their rhetoric that they don’t know what it means; and the latter (for the most part) aren’t so delusional to believe that we can function without a government and be anything but a failed state. Almost everybody wants lower taxes for themselves (Warren Buffet is an admirable exception); few people want to have the more difficult conversation about what they’re willing to give up in exchange.

Government does have a purpose. There are some problems only government — big government, in fact — can solve; but for now let’s stick to small government. How small? There are four essential things a government must provide:

  • a national army
  • a national currency
  • a national road system
  • a national postal service

These (and a few other things) are all enumerated in Article 8 of the United States Constitution. This is about as small as government gets, and without these things no nation can properly call itself a functioning state. To lower your tax bill, please consider:

  • Will you give up the national defense? Do you have an alternative jobs program for the soldiers you’re throwing out of work?
  • What happens when we return to a system of private money, where banks issue their own currency?
  • Are you willing to stop complaining about potholes even while highway tolls increase under private ownership?
  • USPS is required to serve every single address in the United States. Private carriers like FedEx and UPS are not. (They’re not required to carry the junk mail, either.)

During the pandemic the postal service has proven to be an absolutely critical piece of infrastructure, a literal lifeline for millions of people who cannot leave their homes. The USPS is not without its problems, even before considering how the overnight delivery services have eaten into its market share and eroded its profitability. But there is a much bigger picture here.

Essential infrastructure must serve every business and every household. Telephone (land line) service and electric utilities are state-regulated and are required to reach every corner of their service areas no matter how remote or inconvenient. Cellular phone and broadband Internet should have reached that threshold years ago but regulators have so far failed to require universal service, arguing that robust competition among carriers will solve the problem. It has not, and it will not. Basic mail delivery — letters, packages, and bulk mailings — is, likewise, an essential part of a functioning democracy.

To threaten the existence of the USPS (and that is what is going on, though not quite so overtly) at a time when it is more necessary than ever betrays an open hostility to the basic functions of government. So let’s call it that instead of dressing it up in the usual fetish-objects of “competition” and “market forces.” Not every ill can be cured by open markets or by privatizing the functions of government. History tells us that those remedies are far worse than the disease (and they are almost always more expensive, too). We should stop pretending otherwise.


America is in crisis. Government has failed, utterly. This shouldn’t surprise anyone: This is what happens when an uninformed, unequipped, unprepared, unqualified, uncurious, unrelentingly insecure, unmitigated and thoroughly dishonest attention whore is elected to high public office. (It would happen if he’d been elected to low public office, such as city dogcatcher or village mayor; but the consequences would not be so deadly.) Eventually the luck runs out.

A hundred days ago Donald Trump told us all there was nothing to worry about, and that the novel coronavirus would be gone by April. He promised that the fifteen cases “will soon go down to zero” and that his administration had things “totally under control.” It was obvious then (if only because Trump has never in his adult life told the truth when a lie would do) that things were not under control; because we don’t have access to the intelligence briefings we didn’t know at the time just how much things were not under control. But we do now.

Nearly 70,000 known deaths in the United States from Covid-19; that number is underreported as is the well over 1 million known cases. Every day another 2,000 Americans perish. Why? Because the administration has it under control, well-contained, completely shut down. Pick your figure of speech — it makes no difference when containment doesn’t exist, control is illusory, and “shut down” is synonymous with “click your heels together three times.”

This isn’t just a failure of government, though it is that. It is a bigger failure than Katrina, bigger than Maria, because the pandemic is bigger than any storm or earthquake or tsunami in living memory. And it was predicted. Like all such predictions it was impossible to pinpoint the event in future time; it was possible only to identify the kind of disaster that would occur, within what window it was likely to occur, and to prepare for its eventual arrival.  

No, this is not simply a failure of government; if it were that it would be catastrophic but recoverable. This is much more. It is an unprecedented cascade failure whose inception can be traced back through the many unheeded warnings, through the decision to dismantle the pandemic response unit of the security apparatus, to the noxious attitude of this president and his minions: we know best, we are smarter than anyone who has ever come before, we have nothing to learn from the past or from our predecessors.  Make no mistake: when Donald Trump says, “Nobody has ever done what I have done!” it is a rare moment of accidental truth-telling and one more example of his cluelessness.

Mr. Herbert Spencer’s Social Statics

Though the phrase survival of the fittest is often used to convey the gist of Darwin’s theory of natural selection and evolution, it was Herbert Spencer who first coined the phrase; and by it he intended the kind of winner-take-all mentality that seems embodied in today’s GOP: in a word, social Darwinism.

In the context of civil society the idea that the strong should clamber over the weak is repugnant. It is not even a sound economic and business principle, for if competition ensures innovation and lower prices (both good for society), then in any given market — let us say, for example, for widgets — the logical and eventual outcome of unfettered cutthroat competition will be monopoly or, at best, a duopoly.  Competition of the kind pro-business politicians usually say they mean cannot exist without strong antitrust enforcement; it should be noted, then, that these same politicians usually want to weaken the antitrust laws.

But in a civil — and civilized — society, the notion that the fittest will survive and the weaker elements of society will wither, fall away, and die, is as morally repellent as it is antithetical to the foundational belief that all men are created equal.  “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics,” wrote Justice Holmes, dissenting in Lochner v. New York, 198 U.S. 45 (1905), a case decided upon the — ahem — libertarian notion, resurgent in our era, that government has no authority to interfere in any economic aspect of the individual citizen’s life.

It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we, as legislators, might think as injudicious, or, if you like, as tyrannical, as this, and which, equally with this, interfere with the liberty to contract…. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not.

198 U.S. at 75

More recently it was argued that government cannot compel the purchase of health insurance, that individuals should be permitted to decide how to spend each of their hard-earned dollars. Freedom! Freedom of contract, in Lochner; or the “freedom” to self-insure against catastrophic illness.

Very well; we will grant you the right to refuse health insurance if you will permit us to refuse you entrance to the Emergency Room when your appendix bursts, or when you suffer a heart attack, or when your carelessness in the kitchen threatens a digit. After all, you took the risk and assumed that you would not need health insurance; now you want the rest of us to pay for your ER visit, your cardiologist, your orthopedic surgery. In fact you assumed no risk at all, betting that the rest of us would backstop your bad decision. This is freedom defined through a looking-glass and exercised at the expense of others: exactly what laws and government are intended to prevent.

If you find this line of argument — you decided to roll the dice so man up and take your lumps — offensive: you should. But it is not the inverse of the libertarian freedom-of-contract, freedom-to-self-insure argument; it is the identical logic applied and imposed from the other direction.

The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics, and the Constitution and the laws and social structures that rest on it do not constitute a suicide pact. So, please, Michigan militiamen: your desire to “liberate” your state from “tyrannical” social-distancing orders is an unconstitutional affront to your neighbors’ desire, their right, to continue living without the unnecessary threat of disease and death that your liberation would impose on them.

Calvin Coolidge and The Business of Government

“The business of government is business.” Coolidge didn’t say that, exactly: what he said was, “The business of the American people is business.” In today’s Republican Party (indeed, the Republican Party of the last half-century at least) that is a distinction without a difference. We have, in this country — in the world — an awful lot of people who have taken much too literally the adage that “the government that governs least, governs best.” The GOP has, since that day in 1986 when Ronald Reagan — President of the United States, leader of the free world, and his own government’s Chief Executive Officer — declared war on the idea that government had anything useful to offer. “The nine most terrifying words in the English language,” he declared to a cheering crowd, “are, ‘I’m from the government and I’m here to help!’” It was a great applause line, and it certainly caught on. But it begs the question which too few thought to ask at the time: If you don’t believe in government, why are you in it? And, mightn’t the energy and effort required to dismantle government be better spent improving it?

I have always understood Coolidge’s line — even, or maybe especially in its misquoted form — to mean that government, to be successful, must create and preserve the conditions that allow and enable its citizens (and their businesses) to thrive. Government’s role is to build out and maintain essential infrastructure: good roads, clean water, adequate sewerage, excellent schools. This infrastructure must be available to all regardless of station or stature. Established firms will rely on it; entrepreneurs will leverage it.

And when there is a disaster — a 100-year storm, say — government has to step in to provide emergency assistance to those suddenly in need: a roof, a meal, a helping hand with cleanup and rebuilding. Floods, being local matters, are generally left to the state governments; the federal government, with its wider reach and greater resources, provides a backstop whenever necessary.

Well, now it is necessary: we have a global pandemic that in three months has infected over 1 million Americans and killed over 56,000; to say nothing of the millions of other people around the world. And where is the federal government, whose coordinating role is essential to preventing the spread, mitigating the damage, and developing a vaccine? “I take no responsibility at all,” says Donald Trump. And, “It is up to the governors to decide when to reopen their states.” Reopen?? We’ve barely begun to understand how this new virus spreads let alone its mechanisms for ravaging the body; a speedy return to business as usual almost certainly will mean a second wave of infections and another tsunami of job losses and economic devastation. The “cure” of reopening will surely be worse than the disease of stay-at-home orders, quarantine, and social distancing.

Instead of a single, coordinated, and effective response to this crisis we have fifty separate jurisdictions each managing its own response; they have given up pleading with the federal government for leadership or even a single supply chain for essential medical equipment like protective gear and ventilators.  A crisis response regime under which the states must compete against each other in a world market for scarce resources while FEMA — the Federal Emergency Management Agency — sits back or, worse, seizes shipments arriving in New York for domestic redistribution by well-connected private companies? That’s not a system of government by and for the people, it’s kleptocracy and just one small step away from anarchy. That’s profiteering, aided and abetted by the feds.

“When you drown the government in a bathtub, people die.” That arresting headline in The Washington Post’s opinion pages got my attention a couple of weeks ago, because it is so very true. Sure, small government is great, and the government that governs least, governs best. Until there is a crisis. Until you actually need a government to step in and do what only governments can do. When that government is filled with apparatchiks and cronies, with people whose only purpose in being in government is to shrink it further, with men and women without relevant experience but who will pledge undying loyalty to the cult leader, the enormous and deadly consequences should surprise exactly nobody.

There is plenty more that big government can and should do; I hope to explore that soon. It seems I’ll have plenty of time because the governor of my state — unlike the governors of at least a few other states, and unlike the president — is proceeding with very sensible caution. He knows what he doesn’t know, and when he needs to rely on expert advice from epidemiologists and crisis managers who have spent years training themselves for this. (The day-to-day manager of the HHS coronavirus task force has also spent years training — labradoodles.)

Government exists to improve the lives of all people, not just a few. Because the business of government isn’t business: it’s governing. At the end of the day, competence and relevant experience matter.