Polarizing America

January 31, 2017

I’d like to give my spleen a break for a week and talk about some of the dynamics that are polarizing  America, that neither side can solve because the problem is structural. Law has contributed with crucial changes regarding political parties, the media, the draft and residential segregation (which Brown did not prevent). I’d love to hear good suggestions for countering the polarizing effects of those legal changes.[i]

Primaries originally broke up state monopoly parties. We’ve long known that primary elections push candidates apart to appeal to their parties’ most committed voters. After 1968 the primary system became the exclusive method for nominating presidents, pushing the parties further apart.

In broadcasting, three networks controlled radio and television until Congress changed copyright rules, allowing cable television expansion to over a hundred channels, and niche broadcasting to separate audiences. The courts and Federal Communications Commission also killed the Fairness Doctrine, which required broadcasters to present a balanced presentation of controversial issues of public importance. Then Congress made it almost impossible to hold any internet company responsible for even the most outrageous falsehoods published on their systems. Those media law changes made it unnecessary to pay any attention to opposing views. Plus, instead of limiting damages for defamation, as Justice Marshall suggested, the Court gave media much more complete protection.

At the Federal Housing Administration, officials long refused to insure mortgages to African-Americans, regardless of income. That prevented African-Americans from joining the march to the suburbs, drove disinvestment in their existing neighborhoods, and pushed us apart.

The end of the draft has been huge. The military had drafted people without regard to wealth, class, or geography. President Teddy Roosevelt said “the military tent, where all sleep side-by-side, will rank next to the public school among the great agents of democratization.”[2] And indeed the soldiers came home with lifelong buddies from all over America. Arguments about the Vietnam war ended the draft and led to the so-called volunteer army, which doesn’t reach the same cross-section of America. That changed our attitudes toward each other, and how polarized we’ve become.

There were good reasons for the changes to the nominating system, the media, and the draft but the combined price has been to polarize us. Polarization matters. It blocks our ability to listen to each other, even to care about each other. And if we can’t care, the very notion of public welfare, what’s good for all of us, seems like self-pleading.

The market can’t pick up the slack; it fails in many ways. Worse, for market ideologues, democracy, the major counterforce to the market, seems illegitimate. In other words, the stakes are huge – the legacy of our Revolution, our Constitution, and our collective welfare. Somehow, we have to break down polarization, and restore what used to bring us together or find substitutes – for public schools, military service, media that reached across aisles, and integrated housing and communities.

I doubt the cat can be put back in the bag, especially in this polarized environment, but I’d love to hear good suggestions.

— This commentary was broadcast on WAMC Northeast Report, January 31, 2017. For a more extensive treatment, see my Unfit For Democracy: The Roberts Court and the Breakdown of American Politics at 153-67 (NYU Press 2016) or Law and the Polarization of American Politics, 25 Georgia State L. Rev. 339 (2008).

[1] For a more extensive treatment, see my Unfit For Democracy: The Roberts Court and the Breakdown of American Politics at 153-67 (NYU Press 2016) or Law and the Polarization of American Politics, 25 Georgia State L. Rev. 339 (2008).

[2] Quoted in John Whiteclay Chambers, II, Conscripting for Colossus: The Progressive Era and the Origin of the Modern Military Draft in the United States in World War I, in The Military in America from the Colonial Era to the Present 302 (Free Press, Peter Karsten, ed., rev. ed. 1986).

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Universalism vs. the What-About-Mes

May 10, 2016

This primary season has made plain Americans’ dissatisfaction with American politics – dissatisfaction because someone else seems to be getting all the goodies and concern. The right wing thinks the poor are the government’s favorites. The left wing sees its wages and taxes mostly benefitting the super wealthy. Both Sanders and Trump mined the political backlash from special interest politics. Trump’s apparent nomination increases the urgency for both parties to respond to this problem.

And for anyone who wants to argue that impoverished or minority Americans are being short changed, one runs a minefield of envy, and the “what-about-mes.” The same weighs down discussion of the advantages of international trade agreements. If we don’t all share, the biggest issue is me. Similarly, for too many people the environment never seems to be about themselves but someone else, people on islands, lowlands, the next generations, but not themselves. That makes all our problems tougher to deal with.

When he wanted to establish a program for the elderly and the injured, the genius of President Franklin Roosevelt was to make it seem universal. Social security insurance applied to all kinds of people and most kinds of jobs.[1] We pay into the system long before we know whether and how much we’ll need. Many get social security who would be excluded by any need based program. But that’s the point. There is no stigma to social security. FDR did it as an insurance program; most of us contribute and collect. Roosevelt wanted to make it simple – you did your social security business at the post office. And when some politicians wanted to tamper with it for ideological reasons, they found that social security was a third rail of politics. FDR had hit that nail on the head.

Now, however, simple, universal programs like medical insurance have become a political football, and the very possibility of the government pursuing the general welfare is under attack from the not-with-my-money crowd. But because it is under attack, because we cannot count on government even to pull us out of a recession that would involve spending tax dollars, no matter how good the investment, the very possibility of economic changes are much more threatening than they should be.

Investment in infrastructure should be an investment in the general welfare, full of benefits for everyone, putting people to work building it, making jobs and businesses easier to reach, and creating benefits for all of us, from clean water and more reliable utilities to better education and internet services. The best way to protect people from unemployment is to provide jobs that provide benefits for the public. Infrastructure can pay dividends, in jobs and services that make everyone better off, and that only government can build.

Unfortunately politicians prefer big showy projects, dramatic new bridges and buildings rather than maintenance, repair and cost effective options. They prefer projects targeted for their contributors, Or they prefer to get on their soapboxes and try to get us to tear down the very government that made this country a great one. The cost of political behavior that breeds distrust of American government is enormous. Good government, self-government was the signal contribution of America to the world and we are allowing our political infrastructure to crumble along with the water, utility, transportation and electrical infrastructure.

It’s not just who we tax; it’s also what we do. Government matters; it does things for the public that no one else will take care of. We need good government, fair government, government for all of us, but government – strong, effective government – and the confidence that comes from doing it right.

— This commentary was broadcast on WAMC Northeast Report, May 10, 2016.

[1] On the original exclusions, see Larry DeWitt, The Decision to Exclude Agricultural and Domestic Workers from the 1935 Social Security Act, Social Security Bulletin, Vol. 70, No. 4, 2010, https://www.ssa.gov/policy/docs/ssb/v70n4/v70n4p49.html, but he is less convincing regarding motivation. For summaries of current exemptions, see Intuit Inc. (U.S.) at https://turbotax.intuit.com/tax-tools/tax-tips/General-Tax-Tips/Who-Is-Exempt-from-Paying-Social-Security-Tax-/INF19965.html or http://www.investopedia.com/ask/answers/013015/who-exempt-paying-social-security-taxes.asp.


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