Friday, August 26, 2016

Show-Me State Supreme Court Shows Us Textualism Run Amok

by Michael Dorf

Earlier this week, the Missouri Supreme Court held that most stealing offenses are not felonies under state law; they are only misdemeanors. Really? Yes, really. The case is an example of textualism run amok.

Lest you think I'm exaggerating, check out the opinion in State v. Bazell. The defendant committed two home burglaries in a single day. From the first home, she stole a pistol, a rifle, a laptop, a jewelry box, a suitcase, and two pairs of tennis shoes. (I know, you'd think running shoes would be better for a burglar, but I guess burglars can't be choosers.) From the second home, the defendant stole three rings valued at $8,000. All in all, a pretty remunerative day. And surely a felonious day, right?

Not according to the MO S Ct. The defendant argued that double jeopardy barred her being charged for two counts of stealing firearms because she stole both firearms in one burglary. That's an interesting claim, but the MO S Ct didn't reach it, because the court said that she shouldn't have been charged with a felony at all. Why not? Because the relevant Missouri statute says that the theft offense of stealing firearms (and most other stuff) can only be felonious if the value of the firearms (or other items) stolen is an element of the offense. And guess what? The value of the firearms (or other items) is not an element of the offense.

Linguistically, the MO S Ct opinion is right. Here's the relevant statutory provision:
Notwithstanding any other provision of law, any offense in which the value of property or services is an element is a class C felony if:
(1) The value of the property or services appropriated is five hundred dollars or more but less than twenty-five thousand dollars; or
(2) The actor physically takes the property appropriated from the person of the victim; or
(3) The property appropriated consists of:
(a) Any motor vehicle, watercraft or aircraft; or
(b) Any will or unrecorded deed affecting real property; or
(c) Any credit card or letter of credit; or
(d) Any firearms; or
* * * * [emphasis added].
The MO S Ct looked at the italicized language, then looked at the parts of the criminal code defining stealing, found that the value of property or services was not an element of the offense, and so concluded that stealing firearms isn't a felony. By implication, neither is stealing as described in sub-divisions (1), (2), and (3)(a), (b), and (c). That's most of the examples of serious stealing. There are other Missouri code sections that make stealing of special items felonious, without reference to the value being an element of the offense, so these survive the holding in Bazell, but generic stealing of high-value items, including cars, credit cards, guns, boats, and planes(!) is apparently a misdemeanor in Missouri.

Luckily, the Missouri legislature fixed this problem in advance. Effective January 1, 2017, the felony enhancer law will no longer include the value-as-element language. But unluckily, that change may come too late to fix the whole problem created by the Bazell holding. Already, criminal defense attorneys in Missouri are mobilizing to seek relief for clients who were convicted and sentenced under the current version of the statute (which went into effect in 2002). How successful they will be remains to be seen, but under federal habeas law, decisions about what counts as an offense are given retroactive effect, and this year's SCOTUS decision in Montgomery v. Louisiana could be used as precedent for applying federal retroactivity principles in state collateral proceedings.

Even if federal retroactivity rules don't apply (because in Bazell, unlike Montgomery, the underlying claim relies on principles of state statutory construction rather than federal constitutional law), there is the possibility that the MO S Ct could find Bazell applicable to final convictions as a matter of state retroactivity principles. And of course, absent swift action by the Missouri legislature to accelerate the implementation of the new version of the statute, everyone who commits a generic stealing offense between now and January 1 will have committed only a misdemeanor.

What possible justification did the MO S Ct have for unleashing this chaos? In a word, textualism. Here is the key passage explaining the court's reasoning in Bazell:
[T]here is no need to resort to tools of interpretation because the language of [the statute] is clear. We cannot know why the legislature, in 2002, decided to amend [the statute] to add the requirement that only offenses for which “the value of property or services is an element” may be enhanced to a felony, but this is what the legislature clearly and unambiguously did. As a result, [the statute] does not apply here. Defendant’s offenses must be classified as misdemeanors because they cannot be enhanced to felonies by the terms of [the statute].
If this is indeed what plain-meaning textualism requires, then so much the worse for plain-meaning textualism. How about the following alternative (which I made up)?
On its face, the statute does not treat defendant's conduct as a felony. But we can think of no sensible reason (or even any questionable reason) why the Missouri legislature would have wished to downgrade the seriousness of what are undoubtedly serious and dangerous crimes in this way. Why, for instance, make the theft of firearms in particular a felony only if some other statutory provision makes the value of the firearms an element of the offense, when it is clear that there is no other such provision. To read the value-as-element language literally would be to render the felony-enhancer as virtually nugatory. Thus, we reject the literal limitation. Indeed, it is evident from the statute that we have here a case of very sloppy drafting. The legislature was undoubtedly attempting to say that the enhancement provision itself provides the "value" as an "element" of the offense or, in the case of the other, enumerated categories of things stolen (such as motor vehicles and firearms), the enumeration in the enhancement provision qualified as making "value" an "element." This is, we acknowledge, an awkward reading of the language of the statute. But we prefer an awkward reading of the statutory language to one that would attribute to the legislature of the Show-Me State an intention to drastically under-deter serious and potentially deadly crime.
At this point, one is tempted to say that even most textualists wouldn't have done what the MO S Ct did here, but I'm not so sure that's right. Justice Scalia accepted (e.g., here) the absurdity canon--under which a court should set aside the plain meaning of a statute if it leads to absurd results, but Prof. Eskridge offered a powerful argument that doing so was inconsistent with Scalia's broader textualist commitments. Meanwhile, other textualists, like Prof. Manning (in a 2003 Harvard Law Review article that does not appear to be available free online), have argued for abandoning the absurdity canon -- although Manning would soften the blow by allowing "contextual" interpretation to do considerable work for textualists.

Whether one calls my alternative approach an example of very broad contextualism or the absurdity canon, it is clearly preferable to what the MO S Ct did in Bazell. And whether or not Justice Scalia himself would have agreed with that court's result, it is clear that what he did for textualism in general bears some responsibility for this absurd result.

Thursday, August 25, 2016

The Subtleties of Raging Paranoia

by Neil H. Buchanan

It is hardly news that the Trump campaign traffics in conspiracy theories and paranoid fantasies.  Trump, however, is not actually more extreme in this regard than many people on the American right in the 21st Century.  He is merely more shameless about it.

More than a year ago, when the idea of Donald Trump as the Republican Party's nominee was still eliciting howls of laughter, I wrote about the spread of paranoid political fantasies among Republicans in the United States.  Drawing on the historian Richard Hofstadter's classic 1964 essay, "The Paranoid Style in American Politics," I noted that the arch-conservative takeover of the Republican Party has coincided with an embrace of full-on conspiracy theorizing.

While many Republican leaders claim that Donald Trump is an outlier, therefore, this is yet another area in which the real problem for Republicans is simply that Trump is doing what they have been doing for years, but he does it more crudely.  Rather than viewing Hofstadter's essay as a warning, Trump seems to view it more as a playbook.

As boorish as he is, however, Trump has shown himself to be surprisingly adept at the dodge-and-weave of paranoid language.  For example, when he wanted to say that Senator Ted Cruz was not an American citizen and thus was ineligible for the presidency, Trump employed slippery language like, "I'm just asking whether ...," or "People are wondering about ..."  Why say that something is true and be proved wrong, when mere insinuation gets the job done?

Again, this kind of rhetorical move can be found everywhere on the right in U.S. politics.  Although many Republicans are willing to simply assert as a matter of fact that some crazy thing is happening -- calling climate change a "hoax" perpetrated by thousands of scientists, for example -- just as often we hear statements that never quite say what the speaker clearly means.

Take, for example, Trump's claims that the unemployment rate is being manipulated.  Back in February, Trump suggested that the standard way to measure unemployment was somehow a big conspiracy, and that the actual unemployment rate is 42%, not the published rate of 4.9%.

Again, however, Trump did not quite say that the unemployment rate is any particular number.  He said, "The number’s probably 28, 29, as high as 35. In fact, I even heard recently 42 percent."  Yes, he "even heard" that the number could be 42 percent.  Not that he himself is saying it.  He heard it.  From somebody.

This was classic Trump, because he was peddling a huge lie in a thin wrapper of plausibility.  There are many ways to measure unemployment, after all, and the government dutifully publishes a full range of possibilities.  Trump's 42% number includes retirees, students, non-working disabled people, and stay-at-home parents.  If this is his way of proving that things are much worse than the government admits, then he is really in trouble.

After that talking point had been laughed out of the court of public opinion, Trump seemed to move on.  Last month, however, one of his sons revived the conspiracy, seeming to claim on a CNN show that the Obama Administration was manipulating unemployment numbers to make them look smaller. 

PolitiFact rated that claim a "Pants on Fire" lie, finding "no evidence that [unemployment statistics] have been massaged for political purposes."  All of which is well and good, and it shows that the father of the Trump family is not the only one who is keeping the fact-checkers busy.  But the language that the younger Trump used was classic paranoia-speak, and it deserves closer attention.

When the PolitiFact reporter contacted me (along with other economists from across the political spectrum) about this issue, he provided the longer exchange between the interviewer and Trump, Jr.  (Unfortunately, I cannot find that transcript online.)  The full extent of the conspiratorial style of language was fascinating.

Most importantly, Trump Jr. never quite said who was doing these horrible things.  He used the passive voice -- darkly describing "numbers that are massaged" -- and he said that the massaging was being done "to make this administration look good," but he never quite said that the Obama Administration itself ordered anyone to do the massaging.  In the younger Trump's telling, there is some unnamed, malevolent person or group of people who are supposedly hiding the truth.

But the truth, as the interviewer pointed out, is that different ways of measuring unemployment have nothing to do with making the Obama Administration look good.  The same approach to reporting unemployment has been used for decades, through Republican and Democratic presidencies.

So, like any good conspiracy theory, this morphs into a claim that maybe this number has been manipulated by "some bureaucrat in D.C.," maybe (or maybe not) for Obama's benefit but so that "(they can say) unemployment's great because these people just can't even find jobs so they don't even count anymore."  Who is "they"?  Apparently, they are the people who want to prevent Trump from helping workers feed their families.  You know, the bad guys who are trying to harm Real Americans.  No need to be specific.

As I noted above, however, there is nothing about this style of what we might call "blunt indirectness" that is unique to Trump or his family.  Such manipulation of language is the stuff of conspiracy mongering across the right-wing landscape.

(I should emphasize, as Hofstadter did, that there is nothing inherent in conservative thought that should make the paranoid style more appealing to people on the right than on the left.  For whatever reason, however, much of the mainstream of the American right has been overtaken by conspiracy theorists, whereas left-wing conspiracy mongers remain marginalized.)

In a recent column, I revisited another conservative conspiracy that has been raging on the political right for the past three-plus years.  The claim is that the Obama Administration ordered the Internal Revenue Service to "target" Tea Party groups.  Like all good conspiracy theories, this one is based on a fact that is easy to distort.  In this instance, we know that some IRS employees did use inappropriate screening techniques that drew greater attention to conservative groups (but not exclusively conservative groups, with some left-leaning groups also having been singled out).

But it is apparently not enough to simply state the truth, which is that the bad practice was discovered and discontinued, and the IRS has made it clear that its supervisors never approved those practices (and never will).

The claim that there is a scandal has to be based on the idea that this did not simply happen but that it was politically directed.  The paranoid fantasy is that it was not merely some poorly trained employees of a chronically underfunded agency who were at fault.  Instead, it simply must be true that the Obama team was using the IRS for partisan purposes.  And that Holy Grail has kept Republicans in Congress in a tizzy ever since the inspector general's report was released in 2013.

As I have said many times, this is a particularly ridiculous conspiracy theory, because even if it were true, there is simply no political advantage to be gained from slowing down the applications for tax-exempt status from tiny groups that were unlikely to have any income to tax in the first place.  Why target a group of a dozen or so guys in rural Alabama, yet somehow approve an application from a massively financed group run by Karl Rove?

Even so, the dark language of conspiracy infects even the non-politicians who are claiming that something sinister simply must be afoot.  Consider an op-ed by one law professor who has been obsessed with this non-scandal.  Written a full year after the story had broken, and after House Republicans had failed time and again to find anything linking the Obama Administration to the IRS employee's long-since-discontinued behavior, the claim was that there "is" a scandal because we do not have all of the evidence that might prove that there is not a scandal.

Better still, the author frames this as a conspiracy of silence by the national media, which he accuses of ignoring the "IRS scandal."  And the op-ed proceeds with positively Trumpian levels of misdirection, trying to build a steady drumbeat of troubling innuendo.

He starts with what should have been an innocuous incident early in Obama's presidency, when the president delivered a commencement address at Arizona State University.  Making light of the university's controversial decision not to confer an honorary degree on its commencement speaker, Obama laughed and said that obviously the IRS would investigate.

The audience got the joke, but our conspiracy theorist did not: "Supporters of the president dismissed critics who worried that the 'joke' was a 'dog whistle' intended to declare open season on the president's political opponents."  Get it?  There is no actual claim that the president was issuing an order to his minions.  There were just "critics who worried" that he had done so, and the president's supporters dismissed them.

It gets better.  The president's famous criticism of the Citizens United decision was followed (as a matter of chronology) by right-wing political groups forming in response to the legal opening created by the Supreme Court, which was supposedly followed by Democratic senators calling for the IRS to investigate, which was followed by the IRS employees' ill-fated screening decisions.

Not titillated enough?  There's more.  The then-Commissioner of the IRS testified that there had been no targeting, but he "stepped down at the end of his term later that year."  The subsequent acting commissioner later resigned, and the person whom House Speaker John Boehner threatened with criminal charges ended up receiving a $42,000 bonus.  (Was the bonus a payoff?  Inquiring minds want to know!)

Like Trump's and Trump Jr.'s slippery maneuvers noted above, this is the way that paranoid conspiracy theories are crafted for plausible deniability.  There is no need actually to assert that the Obama ordered a political hit.  No one quite needs to claim that the resignation of an acting commissioner was part of a supposed coverup.  The insinuation that this timeline reflects a political cause-and-effect is left unstated.

Yet it all is sold as a "scandal."  And Republicans then gleefully use taxpayer money to launch investigation after investigation, leading to their recent shameful efforts to slime the current IRS commissioner and actually impeach him.  Meanwhile, they prevent the crippled agency from carrying out its duties to collect taxes.

Hofstadter claimed that a "sense of heated exaggeration, suspiciousness, and conspiratorial fantasy" had begun to filter into the American Right during the post-WWII period, culminating in the candidacy of Barry Goldwater and his landslide defeat in 1964.  In the half-century since then, the paranoid style has reached a fever pitch.  We can only hope that Trump's impending defeat will bring with it a broader rejection of Republicans' much longer-standing reliance on conspiracy theories and propagation of paranoid fantasies.

Wednesday, August 24, 2016

The Long-Term Prospects for the Libertarian and Green Parties

by Michael Dorf

My latest Verdict column pitches Instant Runoff Voting (IRV) as an idea that both small parties and the two major parties should support. Don't know what IRV is? Read the column. The basic idea is that IRV makes it possible to vote for a minor-party candidate without risking playing spoiler, because if he or she (as expected) does poorly, your second-choice (or successive-choice) candidate gets your vote after a reallocation. Reducing the likelihood of spoilers, I argue, is good for both third parties and major parties.

In this post, I want to look at the long-term prospects of the two currently most viable third parties: the Libertarians (currently running Gary Johnson for president) and the Greens (currently running Jill Stein). I'll focus on the long term rather than their impact on the 2016 election, because I regard the current election as highly unusual. Much if not most of the support we are now seeing for Johnson and Stein is rooted in opposition to Donald Trump and Hillary Clinton as candidates, rather than simply opposition to their respective policy positions or--what I'm really after--dissatisfaction with the policy space occupied by the two major parties.

Politics occurs around a potentially infinite range of issues, so I'll have to make simplifying assumptions. I'll assume that we can break down national politics into three groupings, each with policy positions falling on a spectrum from left to right between:

Economic policy: Redistributivist/Regulatory versus Laissez-Faire

Social policy: Liberal versus Conservative

Foreign policy: Dovish versus Hawkish

Of course, even that oversimplification needs to be even more oversimplified to give us a sense of the parties, but I'm up to the task! So, here is my chart of the major and minor parties:

PartyEconomic PolicySocial PolicyForeign Policy
RepublicanLaissez-FaireConservativeVery Hawkish
LibertarianVery Laissez-FaireLiberalDovish
GreenVery Redistributivist/RegulatoryVery LiberalVery Dovish

Now one can quibble with some of these characterizations. For example, some politicians who are generally libertarian hold positions on some issues--especially abortion--that code as conservative in our politics.  No doubt there are other ways in which one could quibble with my typology, but that's because, as I've noted, it is a deliberate oversimplification in order to try to gain some perspective.

Okay, so what can we observe about the chart?

1) Both the Greens and the Libertarians are more dovish than either major party. That observation (if correct) suggests a number of possibilities. One is that there is an unsatisfied demand for a more dovish/less interventionist foreign policy, i.e., the American people are not being adequately represented in foreign policy matters. Another--given the fact that the major parties have incentives to align their policies close to the center of public opinion--is that the center of U.S. public opinion is fairly hawkish, except when a foreign war goes badly. Even then, it takes quite some time for the electorate to punish a party for being too hawkish. For example, the Afghanistan and Iraq wars were already going badly in 2004, but it wasn't until the 2006 midterm election that the incumbent party paid a price. Whatever the explanation, the fact that both the Libertarians and the Greens are more dovish than either major party suggests that if there is to be a competition between these two third parties, it will be over domestic policy.

2) With respect to (both economic and social) domestic policy, the Libertarians look to have a clear advantage over the Greens, if the goal of a third party is to win elections and supplant one of the major parties. The Libertarians occupy a policy space -- economically conservative and socially liberal -- that neither major party occupies. By contrast, the Greens are simply more extreme versions of the Democrats.

There is nothing set in stone about the upper-left-hand four boxes of my chart. We could well imagine a two-party system in which one party is economically progressive and socially conservative (think Mike Huckabee early in his Arkansas governorship) and the other is economically conservative and socially liberal (think Bill Weld as Massachusetts governor). Indeed, Trump's success among white working-class Republican voters as an anti-trade pro-entitlements candidate suggests that there is a possible post-Trump Republican Party that is redistributionist/regulatory and socially conservative. If one major party were to drift that way, it would make sense for the other to take the other two positions, i.e., laissez-faire and socially liberal. Because the Libertarian Party already occupies that space, it is also possible to imagine a post-realignment world in which it supplants one of the major parties (which one?!), while the remaining major party drifts to occupy the economically progressive/socially conservative niche.

3) Accordingly, I conclude that the Libertarians have a better chance than do the Greens of becoming one of the two major parties. (In the column, I note that our system ensures that we will mostly have two dominant parties.) But that doesn't mean that the Libertarians have a good chance of supplanting either the Republican or Democratic Party. Despite numerous shifts in our politics, we have had those two major parties for over a century and a half. If there is to be realignment into parties that split up economic and social issues differently from the way that the two major parties do, it is much more likely that the realignment will occur within the existing parties. And I suspect that what we are likely to see is not a new axis of politics but the growing realization that there isn't much appetite for laissez-faire. It may well turn out that the answer to Thomas Frank's question What's the Matter With Kansas?, is nothing: It's just that heretofore, if a voter wanted to vote for a social conservative, he also usually had to take him in a laissez-faire package. A future GOP that is socially conservative and at least modestly redistributionist/regulatory would deeply frustrate closeted socially liberal laissez-faire GOP donors, but would do better at election time.

4) Meanwhile, although there is little likelihood of the Green Party succeeding in supplanting the Democrats (and even less likelihood that the Greens would supplant the Republicans), the people who currently support the Greens will likely find that they can do reasonably well by moving the Democratic Party. Here the math is, or at least should be, obvious. If you're trying to move policy to the left of the more left-leaning party, you will have a much better chance of succeeding by operating within that party--where your primary electorate is substantially to the left of the median voter--than in the general electorate. Put differently, the Green Party cannot hope to succeed as a national party qua party, but it can accomplish many of its policy goals by moving the Democratic Party to the left.

5) I am aware of a line of criticism of the Greens and other third parties in the U.S. that says that they should build themselves up in state and local elections, rather than by running spoilers for the presidency. I generally agree with the bottom line of that criticism, but I would add that much of the dynamic that makes third parties fail in presidential elections operates in other elections as well. First-past-the-post elections tend to create a two-party system. That's Duverger's Law. Some jurisdictions allow "fusion" candidacies--in which a minor party can cross-endorse a major party candidate, thereby allowing adherents of the minor party to vote for a major-party candidate on the minor-party line, and thus keeping the minor party viable (i.e., above some threshold of support needed to be on the ballot). But not all jurisdictions permit fusion candidates, and the SCOTUS upheld fusion bans in a 1997 case.

6) Thus, to quote either Bernie Sanders or Donald Trump, the system is "rigged" in favor of two parties--although most of the rigging is done by Duverger's Law, not by any conspiracy.

Tuesday, August 23, 2016

How to Make a Dead IRS Conspiracy Theory Look Not Completely Dead

by Neil H. Buchanan

How does a right-wing conspiracy theory work?  Why do Republicans insist on pursuing even obvious dead ends?  One answer to those questions is that they have a virtual army of people who are willing to push these stories relentlessly in many directions, and they know that they can sometimes get useful headlines even from misleading underlying stories.

Thus on Monday of this week we saw this headline on a tax blog: "The IRS Scandal, Day 1201: Larry Tribe Says 'IRS Is Engaged In Unconstitutional Discrimination Against Conservative Groups And Must Be Halted'—'Inexcusable Abuse'."

How did a liberal lion like Harvard law professor Laurence Tribe get pulled into this mess, seeming to back up a right-wing talking point? He did so by being intellectually open-minded and generous, but apparently without being aware of the underlying conspiracy theory that his words seemed to confirm. It all makes for an interesting story, requiring a bit of background.

Based on a tax code designation, what are now known as "501(c)(4) organizations" are groups that are supposed to be "operated exclusively for the promotion of social welfare." IRS regulations, in what can only be described as an extremely generous reading of that statute, have defined "exclusively" to mean spending more than 50% of the organization's funds on non-political activities. The rest of the money can be spent on explicitly political goals.

In the Spring of 2013, what seemed like a possible scandal erupted when the Treasury Inspector General for Tax Administration (TIGTA) issued a report showing that the IRS had, for a limited period of time, sorted applications from would-be 501(c)(4) organizations by using search terms like "tea party" and "patriot." The relevant IRS employees had devised this method to figure out which applications were from genuine social welfare organizations versus those that were from barely disguised political groups. It later turned out that these IRS employees had also used terms with left-leaning implications like "occupy," but that never became part of the story.

Once the employees who had sorted the 501(c)(4) applications had identified the groups whose names suggested possibly inappropriate levels of political activity, they engaged in what we might now call "extreme vetting." The organizations were asked detailed questions about the sources of their finances, the content of the members' conversations at meetings, and so on.

Even though one could easily imagine why each of those questions could be probative regarding the degree of a group's political activity, those questions were obviously problematic both legally and politically. That entire approach to vetting 501(c)(4)'s was, therefore, clearly wrong. It is good news, then, that when the IRS lawyers who supervised the lower-level employees found out about what was happening, they went through the steps necessary to stop it.

In other words, the TIGTA report was an autopsy. It reported that some IRS employees had done something wrong, that their superiors had stopped it, and that there was no reason to think that there was any political influence involved in what had happened. But Republicans pounced, absolutely certain that the Obama White House had ordered a Nixonian abuse of IRS power.

It was obvious after the "scandal" story broke that the abandoned IRS activities were not directed by the Administration, yet Republicans pressed on. A year later, even Fox News's Chris Wallace was telling a Republican congressman to, in essence, put up or shut up. Still, nothing emerged to support Republicans' claims.

More than three years on, conservatives are still trying to claim that there was a political conspiracy. Republicans in Congress have spent millions of dollars investigating these claims, while also diverting millions of dollars worth of IRS resources to answering repetitive requests for evidence.

Despite all of this, there continues to be no evidence to support any of the conspiracy theories.

So why is the story still alive, and how did Larry Tribe end up playing a starring role for a day in this never-ending saga?

Apparently, Tribe recently (correctly) dismissed the idea of an IRS scandal as a non-scandal that has been debunked. Because Tribe is among the most well-known liberal legal scholars in the country, as well as a former advisor to President Obama, he is regularly trolled by right-wingers. Apparently, one or more of them took to Twitter to tell Tribe that there really is an IRS scandal.

One such response pointed Tribe to a recent decision from the U.S. Court of Appeals for the D.C. Circuit. Because Tribe is intellectually honest and open to being corrected, he said that he would look at the evidence. What he found, upon reading the court's opinion, was that there had really been IRS activities that needed to be stopped. Like the IRS lawyers who had stopped the vetting program when they found out about it, Tribe was rightly shocked.

Which, of course, does not at all support the conspiracy theories that conservatives have been pushing. No one has ever claimed that the IRS employees did nothing wrong. That was all covered in the TIGTA report, and the IRS's leadership had already ended the practice before the report was issued.

But why would Tribe's tweet be in the present tense: "IRS Is Engaged In Unconstitutional Discrimination ..."? Is engaged, not was. Why did he say that the IRS "must be stopped," given that it has already stopped?

Tribe might simply have erred by not using the past tense, or he might not have realized that the activity had been stopped a long time ago.  Another explanation, however, is intriguing (though equally exculpating of Professor Tribe).

The D.C. Circuit ruled  this month that a case brought by some Tea Party groups should not have been dismissed by the district court.  Although the appellate court held that the Tea Party groups could not seek money damages, it held that the case was not moot and thus remanded the case for litigation of the plaintiffs' equitable claims.

Why is the case not moot, given that the IRS has long since discontinued the inappropriate vetting that caused all this trouble? The court offered two reasons, neither of which provides any sustenance to the conspiracy theorists. (The court surely pleased conservatives by saying at one point, "The IRS proudly boasts ...."  But beyond that bit of snark, there was nothing more.)

First, the court pointed out that, although the IRS has now appropriately processed the backlog of 501(c)(4) applications, the applications of the two plaintiff organizations in the D.C. Circuit's case are still pending. This is because the IRS has a policy of putting on hold internal reviews of cases under litigation. Although I think the court's description of this as a Catch-22 was a bit too pat, it is nonetheless true that the IRS has not processed these two cases. Until those applications are processed, the effects of the now-abandoned procedures have not yet been completely cured.

The court's second point is that the IRS has not officially abandoned the discredited procedures. The official status of those procedures is "suspended," not "terminated permanently." As a matter of bureaucratic procedure, plenty of things that are "suspended" are effectively terminated, but in terms of invoking magic words, the court pointed out that "suspended" means that the IRS has not completely, officially ended the offensive procedures.

As a political matter, of course, it is unthinkable that the IRS would ever come close to allowing anything like this to happen again. But as a legal matter, the court correctly said that "suspended" does not mean "gone forevermore."

At this point, therefore, all the IRS has to do to make this case go away is to process the last two applications and issue a new directive putting a bureaucratic stake through the heart of the long-abandoned procedures.

This is, therefore, yet another example of how legal concepts can be misleading. Professor Tribe (assuming that he meant to use the present tense) correctly said that the IRS "is" still doing something wrong, but only in the procedural sense that the last of the effects of the wrongdoing have not been completely cleaned up and tied off.

In the broader political context, of course, the misunderstanding of this legal nuance is more than a bit unfortunate. An important public intellectual was directed toward one tiny bit of the public record on the IRS non-scandal, and he responded to that evidence appropriately. But his words are being misused by people who want to keep the anti-Obama scandal claims alive.

To repeat: Some IRS employees did something that they should not have done. Their superiors made them stop. An inspector general reported what happened to Congress. Republicans have no evidence to show that the Obama people were involved. And Laurence Tribe is rightly dismayed that it ever happened, as are we all.

Monday, August 22, 2016

Blackmail, Ransom, and Leverage

by Michael Dorf

Two recent unrelated news stories raise interesting questions about the legitimate scope of leverage in dealings with and by the government. One concerns Aetna's decision to pull out of the ACA exchanges in eleven states in which it has been offering insurance on those exchanges--possibly in retaliation for the Justice Department's lawsuit blocking Aetna's planned merger with Humana. If that is what happened, it could be said that Aetna blackmailed, or extorted concessions from, the government. The other story concerns the revelation that the State Department delayed payment of $400 million owed to Iran for at least several hours in order to ensure that Americans held captive by Iran were released, a move that critics of the Obama administration have said amounted to paying "ransom." Was there anything improper about these arrangements?


The facts of the Aetna case are amenable to two readings. On one reading, Aetna was using its leverage over the Obama administration. The administration wants the exchanges to succeed but cannot go back to Congress for amendments to the law that would enable that outcome, because Congress is controlled by Republicans who want the ACA to fail. Accordingly, the administration must work within the confines of the existing law to induce or cajole insurers to offer policies on the exchanges. In the first view, Aetna knew that and sought to use its leverage in the ACA exchanges to extract an unrelated concession from the administration: forbearance from antitrust enforcement. If so, then what Aetna did was at best highly questionable.

I'm not sufficiently expert in criminal law to know whether it is a crime to say to the government that if the government takes some legal action against your firm, your firm will retaliate by taking some unrelated action it has a legal right to take anyway. I do know that if that's a crime, it is a crime that bears some similarity to conventional blackmail. Let's suppose Jane lawfully has in her possession embarrassing photos of Charlie. If Jane demands that Charlie pay her $10k not to publish the photos (even though Jane has a legal right to publish the photos), Jane has blackmailed Charlie. I assume the same conclusion follows if, instead of demanding $10k from Charlie, Jane demands that Charlie--on behalf of the United States in his capacity as an employee of the Justice Department--drop the government's legal action to block the merger of Jane's firm with another firm.

Now there is one obvious and one potential distinction between the actual Aetna case and the hypothetical case I've just described. The obvious distinction is that on no account of the facts did Aetna threaten to reveal (or not reveal) information. Thus, no one at Aetna could be prosecuted for violating the federal blackmail statute. Pundits claiming that Aetna attempted to blackmail the federal government are thus using the term "blackmail" in a loose sense. "Extortion" might be a better description of what Aetna arguably was attempting, although here too that would be in a loose sense, because threatening to do something one has a right to do does not violate the federal extortion statute (the Hobbs Act) either.

The potential distinction I have in mind invokes a second reading of the facts. Aetna and its officials claim that they were not threatening to take an unrelated action (dropping out of the exchanges). After all, Aetna's July 5 letter at issue does not literally say "if you block our merger we will retaliate by taking the unrelated action of pulling out of the exchanges." It says if you block our merger, we will lack the financial resources to continue to provide coverage at a loss on the exchanges. See the difference. It's not a threat. It's a prediction.

Of course, a threat can be veiled as a prediction. E.g., Nice coffee shop you got here. It'd be a shame if anything was to happen to it, know what I mean? But I doubt that the July 5 letter, standing alone, is sufficient evidence that Aetna was really only disguising an effort to threaten the government as a prediction about its own finances. There is too much plausible deniability.

This second reading of the Aetna facts makes the case uninteresting. So let's consider a hypothetical case based on the first reading of the facts. Suppose that a firm expressly did what some have accused Aetna of doing. Suppose that the Shmaetna Insurance Company literally did make the threat and did so simply as a means of gaining an advantage in the antitrust case. In this scenario, we assume that Shmaetna's health insurance business on the exchanges is either profitable or at least a break-even proposition. Absent the antitrust case, Shmaetna would have no reason to cease operating on the exchanges. But Shmaetna wants to take advantage of its leverage because it knows that the government really wants it to keep offering insurance on the exchanges. Forget about whether Shmaetna's threat is permissible under existing law. Is it the sort of thing that ought to be treated as unlawful?

I'm not sure. In some contexts, we think that trading in this way is permissible. Logrolling is familiar from the legislative process. And in daily commercial life, we are constantly exchanging goods and services for unrelated goods and services. If I have a bicycle that you want, you offer to pay me money for it. If you offer me enough money, I take your offer. I then use the money to purchase whatever I want--let's say piano lessons. The fact that you have gotten my bicycle by, in effect, giving me the unrelated service of piano lessons isn't wrong or shameful or anything of the sort. It's a simple exchange.

Yet there are contexts in which this kind of exchange is corrupt. Logrolling is verboten (at least as a matter of the publicly accepted norms) among the members of multi-member courts. Blackmail is illegal. And the extraction of antitrust enforcement forbearance in response to an unrelated threat--even a threat to do something lawful--seems corrupt. My intuition is that civil and criminal law enforcement ought to be made based on a judgment about the merits of the particular case, uninfected by extraneous considerations.


Now let's turn to the allegations that the administration paid a ransom to Iran for the American prisoners. Here there isn't much dispute about the facts. The Iranians claim that the prisoners were held for various crimes, but the charges were bogus. Still, there appears to be an important difference between what happened here and a conventional ransom case. In the latter, the kidnapper unlawfully takes hostages and then demands money or something else of value to which the kidnapper is not entitled. Here, however, the $400 million debt long pre-dated Iran's capture of the U.S. prisoners.

But so what? Suppose that Donald Trump owes $5 million to one of the many contractors he has stiffed over the years. The contractor has had enough of Trump's delaying tactics and obstruction, so he kidnaps Trump's ten-year-old son Barron, demanding payment of the $5 million for Barron's release. If Trump pays, is that a ransom?

The short answer is that it doesn't matter what we call the transaction. The reason why it's bad to pay ransom to kidnappers is that doing so encourages more kidnapping. In the hypothetical case, that's the effect of Trump paying the kidnapper. Seeing that kidnapping Trump's son led to Trump finally paying the money he owed will encourage all of the other people that Trump owes money to kidnap members of his family. So yes, payment in this case is the equivalent of a ransom, even though the debt pre-dated the kidnapping.

Does that mean that the Obama administration also paid the equivalent of a ransom? Not necessarily. The administration contends that it was planning all along to pay the $400 million and only delayed payment in retaliation for the taking of the prisoners. Iran took prisoners and the U.S. then threatened not to return the $400 million it was about to pay. It wasn't a ransom, the administration argues, because the U.S. side was doing the threatening.

That's plausible. Although the debt was longstanding, it probably would have been paid as part of the general effort to settle old cases along with the completion of the nuclear deal. And if so, it would have been paid sooner had the Iranians not been holding the Americans prisoner.

But maybe not. The administration's characterization of events depends on a counterfactual. Are we really sure that the $400 million was going to be paid anyway? And even if the administration was planning on paying all along, if the Iranians had doubts about that, then, from their perspective, this was a successful hostage-taking-and-ransom operation, which could encourage more such operations.

I'm left in a state of uncertainty about how to characterize the payment to Iran, but I do think the crucial question is who was doing the threatening. Was the U.S. threatening to withhold payment otherwise soon-to-be forthcoming or was Iran threatening to keep holding the prisoners absent payment? And what did each side understand about the other side's intentions? Because they depend on subjective intentions with respect to counterfactuals, these are largely unanswerable questions, so I won't attempt to answer them.


Instead, I want to conclude by connecting the Aetna and Iran cases. Note that in the Aetna case, Aetna's claim to innocence rests on its argument that it was not using the leverage it had in virtue of the fact that it offered insurance on the exchanges. By contrast, in the Iran case, the administration's claim that it did not pay ransom rests on its argument that it did use its leverage to withhold payment of the $400 million, rather than submitting to a demand by Iran exploiting the leverage that holding the prisoners provided. In one case, exercising leverage is inculpatory; in the other case, it's exculpatory.

That's interesting. My tentative view is that this juxtaposition shows that we lack a comprehensive account of when the exercise of leverage--whether in the form of a threat or a promise--is legitimate. Even familiar examples can be problematic when closely inspected. We accept logrolling as part of the necessarily messy process by which legislators compromise, but it is not difficult to see it as a kind of corruption. If the price of securing a House member's vote for a critical environmental protection bill is federal funding for the construction of a multi-million-dollar Museum of Rubber Bands and Paper Clips in his district, that is hardly a cause for celebration.

There is a substantial body of literature that attempts to explain and/or justify the crime of blackmail. How can it be unlawful to threaten to do something that one is legally entitled to do? I don't have a view about which, if any, of the accounts of blackmail are persuasive, but I do want to suggest that perhaps the problem is broader. Perhaps the problem of explaining the harm of blackmail is simply a subset of a larger problem we have offering a comprehensive and coherent account of when the use of leverage is proper.

Friday, August 19, 2016

It Matters Why and How a President Disappoints Her Supporters

by Neil H. Buchanan

No president has ever lived up to the hopes and expectations of his supporters.  Even people who are clear-eyed realists cannot help but indulge in a bit of excessive optimism during an election campaign, fueled by the energy of supporting one candidate over another as well as the sense that elections can sometimes be transformative.

The hard reality is that nothing ever goes as well as people hope it will.  Even so, it matters a great deal why and how a president ends up disappointing his or her supporters.  In Hillary Clinton's case, it matters even more, because so many people who will vote for her this year nonetheless say that they are worried about whether she is truly committed to the issues in which they believe.

In a recent column, I argued that any future disappointments during a Clinton Administration will not be due to a "mandate problem."  That is, contrary to some recent hand-wringing among liberals, it does not matter whether Clinton can claim an electoral mandate -- or the right kind of mandate -- from November's election results.  When she wins, Republicans will oppose her at every turn, ignoring any claims of a mandate.

I also pointed out, however, that there are three different reasons that Clinton might do things as president that will disappoint people who currently support her:
"She might not really be committed to [her] platform at all.  Or she might be weakly committed to it but too willing to compromise without expending much effort to get a better outcome.  Or she might drive a hard bargain but ultimately decide that she cannot do better than achieve a half-measure, which is better than nothing at all."
Consider the first possibility.  Clinton's history (which is, of course, inextricably intertwined with her husband's successful campaigns for president in 1992 and 1996) gives liberals and progressives like me plenty of reason for concern.  Although the Bernie-or-bust crowd badly misplayed their hand at the Democratic convention last month, their reading of Clinton's past positions provided valid reason for concern.

The Clintons, after all, embodied the center-right politics of New Democrats in the eighties and nineties.  Bill Clinton embraced the idea that Democrats could only be competitive by abandoning liberalism, and he thus announced that "the era of big government is over," carried through with a plan to end welfare as we know it, and so on.

Even facing an easy reelection campaign in 1996, Clinton signed multiple pieces of landmark legislation that moved the country in the wrong direction, on topics ranging from immigration to the death penalty.  And even after he was a lame duck, he supported the disastrous financial deregulation bill in 1999 that set the stage for the economic meltdown that began on Wall Street in 2008.

Does that mean that President Hillary Clinton will decide to return to those policies after her election?  I continue to believe that she has learned important lessons from her own mistakes and those of her husband's administration.  Even a big fan of neoliberal deregulation, after all, would have to look at the evidence of the post-1999 era and be at least a bit chastened.

More to the point, the political landscape has changed radically in the last twenty-four years.  To prove that a Democrat could be tough on crime, Bill Clinton made a big show of leaving the 1992 campaign trail to preside over the execution of a man with an IQ of 70.  He also had the defining "Sister Souljah moment."  He was hostile to unions, embraced fiscal conservatism, and on and on.

Maybe Hillary Clinton believes that one or more of those policy views and political strategies are still substantively defensible, but I strongly doubt it.  Even if she did, however, why would she act on such beliefs, if she has an ounce of political sense (which she clearly does)?

The public now strongly supports liberal positions on economics (minimum wage increases, addressing inequality through tax increases on the rich, and so on), social issues (same-sex marriage, abortion), and existential matters like the environment.  Even public opinion on the death penalty has moved decidedly to the left.

It is true that Clinton will be hearing frequently from people who never learned anything from the nineties, as well as others whose political fortunes are tied up in red-state politics.  Even before this year's election is over, my prediction is coming true that some Democratic senators who will be up for reelection in 2018 will push Clinton not to be "too liberal."

This does mean that Clinton will almost certainly shade some issues in ways that will disappoint people like me.  I suspect, for example, that Clinton will make some noises about "taming our monstrous budget deficits."  More generally, she will surely be pushed by red-state senators to trim her sails.

After all, President Obama's bad decision to create the Simpson-Bowles deficit-reduction commission was in large part forced by former North Dakota Senator Kent Conrad, who was the Budget Committee chair at the time.  One of the vulnerable senators in 2018 is also from North Dakota, and others are from states like Missouri and West Virginia.  And with the possibility that faux-Democrat Evan Bayh will return to the Senate, there will be plenty of voices in Clinton's ear pushing the neoliberal line.

I certainly hope that Clinton will resist those arguments.  Even if she does, the second possibility arises, which is that she will be committed in the abstract to a good policy position, but she will not find it worth her time to expend real effort to do anything about it.

The Obama Administration, for example, failed to respond to the right-wing takeover in Wisconsin led by Governor Scott Walker that began in 2010, all but mailing in their tepid support for his recall in 2012.  Similarly, the "card check" bill that mattered greatly to labor unions died of neglect early in the Obama years.

And I still fervently believe that Obama did not play his hand well when the Bush tax cuts were set to expire.  If ever there were an unforced error, that was it, and the best explanation is that Obama was insufficiently committed to progressivity in the tax system to be willing to make a real effort that could have led to a better outcome.

There are always plausible explanations for such outcomes.  Obama, for example, might have been told that he could not swing the outcome in Wisconsin in 2012, and it would thus be better not to try and fail.  I strongly disagree with that strategy, but it is certainly not crazy.

The third possibility is arguably the most important.  Clinton will compromise on issues in order to make incremental progress.  Count on it.  She will not do so because she is feckless or cannot be trusted, but because she will need to get certain things done, and there will be political prices for doing so.

Each time that she does this, her liberal and progressive supporters should encourage her to try harder and to reach for a better outcome.  What they should not do is assume that, to take one obvious possibility, her ultimate support for an $11 or $11.50 minimum wage is somehow proof that she never supported a higher number.

The frustrating thing about politics is that we can never say with certainty which of these three possibilities explains a president's conduct.  For example, Clinton might have good reason to know in advance what the best incremental outcome is, and she might also know that her opposition will never budge.  If so, she might appear to be expending little effort and accepting less than half-a-loaf.

And given that there will always be pundits and politicians saying that she should be moving rightward on every issue, they will claim that each of her decisions is proof that she has seen the error of her ways.

Does that mean that Clinton should receive the oddest of free passes, carte blanche from the left because she can claim every time that she did the best she could?  Certainly not.  There will always be evidence, contestable though it might be, that provides insight into a president's motivations. 

Take Obama's "pivot" to deficit reduction in 2010, which was highlighted by his attempts to reach a Grand Bargain with former House Speaker John Boehner.  There was simply no good economic argument at the time supporting Obama's change of heart, and the argument that economic confidence was the key was obviously specious.  He simply blew it, and he deserves to be blamed for some of the economic stagnation that followed.  (To his credit, he later made efforts to undo the damage.)

Clinton should not get a free pass, but neither should she be on some kind of short leash.  She did not merely agree to allow her party to adopt an impressively progressive platform at its convention, but she is aggressively running on that platform -- at precisely the time when some pundits are calling on her to move to the right.

But again, Hillary Clinton will definitely end up doing disappointing things when she is president.  When she does disappoint, it will matter why and how she is failing to do everything that people like me would like her to do.  There are good reasons to think that her future political success will depend on her ability to deliver for liberals, which means that she will probably disappoint as little as possible, and for the right reason, at least most of the time.

Given how fierce the Republicans will be in their opposition to everything Clinton proposes, however, I am not expecting much good to happen in the next four years.  But I will also know who is really at fault.

Thursday, August 18, 2016

The Impossible Burger: A "Pythagorean" Dialogue on Vegan Marketing

by Sherry Colb & Michael Dorf

Preface: On a recent trip to NYC, we had occasion to try the "Impossible Burger," a vegan burger made by Impossible Foods.

The Impossible Burger is not yet widely available. We tried it at Momofuko Nishi in NYC. It is far from a vegan restaurant. Our experience prompts this dialogue, fashioned "Pythagorean" rather than Socratic in recognition of Pythagoras's vegetarianism. The views expressed by the characters "Sherry" and "Michael" are not necessarily our respective views.

Sherry: This is a delicious burger. I'm not sure it's qualitatively superior to all other vegan burgers, but it sure is tasty. I could see ordering a second one.

Michael: I agree about the taste, although frankly, it has been so long since I last ate meat that I can't really judge one of the apparent main selling points--the claim that it tastes just like an animal-based burger.

Sherry: But in a way that doesn't matter. What matters is that its flavor and texture are terrific, and non-vegans can therefore taste for themselves that they would not be missing anything if they made the switch.

Michael: I get that the rollout strategy of Impossible Foods is to appeal to the general public, and that's why we're eating ours in a non-vegan restaurant. I must say, however, that this approach has a downside. The fact that it comes with dairy cheese on a non-vegan bun unless you specifically ask for the vegan version tends to blunt any likely generalization. I doubt that a lot of people leave Momofuku thinking that they should now go vegan, because they haven't even had a vegan meal there.

Sherry: That's setting a very high bar. Few singular culinary experiences will be enough to persuade a non-vegan to become vegan. I was impressed to see that almost everyone in the restaurant was making a point of ordering the Impossible Burger, when they may never have tasted a vegan burger before. That alone could be transformative.

Michael: I hope you're right. As you recall, I asked the people at the next table why they had ordered it, because I was curious about the motivation of non-vegans for trying a vegan burger, even if one that was served with dairy cheese on a non-vegan bun. They said they were eager to try something new and they were fans of David Chang (the owner of Momofuku). I worry that after trying and enjoying the Impossible Burger, they and others like them will move on to the next foodie fad.

Sherry: I acknowledge that that's possible and that many of the people there will do exactly what you predict. However, I think that some number will be bitten by the vegan bug and want to try other vegan products to see whether there's a whole world out there that they have been missing. The goal of the rollout is to whet their appetite, and I think this burger did that in a teasing and skillful way. Had they served the burger at a vegan restaurant instead, where the buns and cheese would have been vegan too (and not just for those who requested it that way), the impact of the rollout would have been blunted and mainly limited to pleasing the vegans.

Michael: I agree that we vegans are not easily pleased! And I want to be clear that I think Impossible Foods is doing very positive work here. But I think the work that they are mostly doing is reducing individual demand for meat, rather than creating a path to veganism. Reducing individual demand for meat is a good thing. I would rather that non-vegans eat less animal product than more animal product. So I'm not unhappy about the rollout. My point is simply that veganism is an entire philosophy, and that to adopt it, one needs reinforcement and social support. One is not likely to get that at a non-vegan restaurant. After all, nearly all non-vegan restaurants already serve some vegan items: e.g., salad, french fries, iced tea, whatever.

Sherry: I definitely agree about veganism as a philosophy and about the need for social support, but I think that maybe customers at Momofuku will find both of those things elsewhere when they might not have bothered to, absent their exposure to the Impossible Burger. Plus, the very act of choosing to stand in line to order a vegan burger can come to be meaningful to the individual who watches his own actions and makes judgments about his own values on the basis of those actions.

Michael: As long as we're being so agreeable, let me raise one other issue. If we are trying to sell veganism to the masses on the sly, as it were, then don't you think we somewhat undermine that effort by selling them what had to be a pretty unhealthy meal? After all, one of the big selling points of veganism is that if done the right way, it's very healthy. Yet here we have a meal consisting of french fries and a burger on a white flour bun. Indeed, one of the supposed selling points of Impossible Foods burgers relative to other vegan burgers is that the Impossible burger is like an animal-based burger in containing heme iron. Yet heme iron is much less healthy than non-heme iron found mostly in plants. I suppose that even with all of that, an Impossible Burger isn't as unhealthy as a burger made from ground-up cows, but that's a pretty low standard.

Sherry: While you make a good point, I would highlight two features of people's resistance to becoming vegan. The main one, I believe, is the worry that they will no longer enjoy their food. And secondarily, people are concerned about getting enough protein, calcium, etc. The Impossible Burger dispels both of these myths because it is delicious and has plenty of protein. Once people decide they are comfortable with the idea of becoming vegan, there is plenty of time to introduce them to a more wholesome way to eat. And even longtime vegans can enjoy an occasional indulgence.

Michael: Fine. So long as it is only occasional. For the sake of my waistline, I'm glad that the Impossible Burger hasn't made it to Ithaca yet.