Friday, March 09, 2018

Even a Little Bit of Power Needs to Be Exercised Responsibly

by Neil H. Buchanan

The noted philosopher Ben Parker (uncle to Peter Parker, aka Spiderman) once said: "With great power comes great responsibility."  Or maybe it was Voltaire who said that.  In any case, it would seem to follow that with some modicum of power comes a requirement at least not to act irresponsibly.  And among people in academic circles, having even a modicum of power is actually rather rare.

Consider Paul Krugman.  He is the most honored economist of his generation, the only economist ever to have won both of the field's top prizes.  He also has a preternatural ability to communicate clearly and concisely -- an ability that is, to put it mildly, not nurtured by economics training -- such that he was given a perch as a regular columnist on the op-ed page of The New York Times.

Combine serious academic chops with a good bullhorn and the ability to use it, and good things ought to happen.  Krugman also had the good luck, if one can call it that, of having access to his bullhorn during the worst economic crisis in three-quarters of a century.  Even though he is quite good at writing on most other topics, the Great Recession and its aftermath were tailor-made for him to have an impact.

And boy oh boy, he tried.  Week after week, month after month, and year after year he called out hack economists on the right for ignoring evidence that contradicted their dogma, called upon a Democratic president to be bolder in dealing with the damage that timid policies and Republican obstructionism were causing, and laid out a case for a surprisingly simple and powerful approach to reducing human misery.

Did Krugman's prodigious efforts have any impact at all?  Perhaps, but one would be hard pressed to prove it.  Certainly, policy moved overwhelmingly in the opposite direction of Krugman's prescriptions, with even ideological allies like now-former Federal Reserve Chairwoman Janet Yellen ignoring Krugman's advice to hold off on tightening monetary policy until "we can see the whites of inflation's eyes."

It is certainly possible that Krugman's interventions made matters less bad, causing the Obama Administration to take stronger stands even in retreat and the Fed to delay raising rates longer than it otherwise might have.  But if that is the most that one might hope to find regarding Krugman's impact on the world, that is a rather meager payoff from what seems like a powerful position.

What does that say about other academics who operate in the mortal realm?

Many professors long to place even one guest op-ed in a major newspaper, and their universities' media offices make a big deal about it when they do.  Some of us have more permanent presences in the world of policy analysis, and sometimes national publications even decide to publish our work on an ongoing basis.

Even so, the best that any academic can hope for -- short of being hired to work in an actual policy position, which itself offers very little opportunity actually to change outcomes and is in any case proof that one has to stop being a professor in order to make even that much of a difference -- is simply to be part of the bigger picture, contributing to the advancement of the policy conversation in ways that we know in advance will never be provable.

All of which is absolutely as it should be.  The idea of the lone intellectual whose brilliance can change everything is tenuous even in the sciences, but in the ultimately political realms of legal and social science analysis, that idea is unrealistic in the extreme -- and it is also reassuring to know that we are safe from being led astray by a brilliant crank.

Which brings us to the question of negative impacts.  Is there an asymmetry that makes it impossible for an individual professor to have a decidedly positive effect, but allows a purveyor of bad analysis to have a noticeably negative effect?

In the economic debates after the Great Recession, Krugman spent a great deal of time opposing and exposing what he came to call "zombie ideas," that is, policy arguments that had been debunked multiple times but continued to come back to life.  One such zombie was "expansionary austerity," the absurd claim that cutting government spending in a still-depressed economy would so enhance business confidence that private investment would more than offset the negative impact of any government cuts.

That idea of a "confidence fairy" was never sensible, but there were certainly academic economists who were willing to push it.  Similarly, there was a brief gusher of right-wing drivel generated by the idea that there was a magical threshold of 90 percent for the ratio of federal debt-to-GDP beyond which we must never go.  Two Harvard economists (who do not have a reputation for being Republican apologists) stood by their flawed analysis that had led to that damaging talking point.

It is thus possible that a well timed bad academic paper can catch hold and make matters worse.  It is also possible, however, that the professors who write such papers are simply being used to justify something that would have happened in any case.  Even without the silly theory of expansionary austerity, Republicans surely would have relentlessly obstructed the Obama Administration.  Everything else was pure rationalization.

Similarly, Republicans have been going after the Internal Revenue Service for decades, undermining its ability to enforce the tax laws against wealthy tax cheats whose obligations the Republicans were unable to reduce (far enough for their tastes) through legislative means.  In fact, Republicans even prevented the IRS and economists elsewhere in the government from collecting data on upper-income people in order to study income inequality.  Knowing the truth, after all, might lead to real change.

Even so, there are ways to make it easier for Republicans to do their dirty work, and similarly there are ways to make it more difficult.  Perhaps the most telling issue in the tax policy realm is how people responded to the non-scandal at the IRS that Republicans have been hyping for close to five years now.

In my most recent Verdict column, I go back over the familiar ground of the non-scandal, in which an understandable but bone-headed error by some IRS employees was turned into a cause célèbre by Republicans who claimed that a cabal of Obama's minions had abused the IRS's powers in order to harm the then-president's political opponents.  The argument never had any factual backing, and Republicans were never able to come close to proving it, despite years of effort and millions of taxpayer dollars spent in futile pursuit of their Holy Grail.  Even so, Republicans continued to use the non-scandal to justify their harmful attacks on the IRS.

As I have noted repeatedly over the course of this farce, a blog called TaxProf has been obsessively focused on the non-scandal since the story first broke.  Most readers will not be familiar with a blog that is frequented by tax professionals and tax law scholars, and that is as it should be.  I am sure that there is a blog for, say, chemical engineers, but if there is, I would never have reason to find it and read it.

Mostly, that kind of blog will post items of interest to insiders: abstracts of recent scholarly articles by tax professors, news items about tax proposals in Congress, rulings by courts on tax matters, IRS guidance, and so on.  In other words, this is the kind of resource that is useful for professionals but few others.  But because TaxProf was a "first-mover" in the creation of professional blogs in the early 2000's, it developed a must-read status among tax specialists like me.

TaxProf's founder is oddly obsessed with rankings (of all kinds), and he also delights in passing along stories about exaggerated campus controversies and other nonsense, so over the years readers of the blog have had to develop ways to ignore click-bait stories that regularly make their way onto the blog.  It has been annoying, but not a real problem.

The IRS non-scandal, however, was a different matter entirely.   Initially under the guise of aggregating the many stories that were being published about the non-scandal, the blog began to run daily "IRS Scandal, Day xxxx" posts, with a counter of the numbers of days since the story was first reported.

This led to a backlash among many readers of the blog, who pointed out that the term "scandal" at the very least was one-sided -- and, if one were taking sides, calling it a scandal certainly put the blog on the evidence-free side. The professor who runs that blog refused to budge, however, and the daily counter continued for years.  And because of the modicum of power he holds as the editor of the only blog that a critical mass of tax professors feel the need to read, even senior professors ultimately let it slide.  (It is worse for junior professors, of course.  One untenured tax law professor told me that she was terrified of alienating the TaxProf editor because her work might never again be highlighted on the blog, thus damaging her career.  Better to remain silent.)

After a few months, the daily counter had become a punch line among tax specialists, and the credibility of the blog and its proprietor had been seriously compromised.  Many professors told me that they had simply stopped clicking on the daily aggregation of stories about the non-scandal, especially because the right-wingers who believed that there was a real scandal were writing the same thing over and over again, and the blog would link to anything on the topic.

It was actually worse than that, however, because there were days when there were simply no stories to which the blog could link.  The supposedly neutral aggregator then started publishing pieces that were written specifically for the blog and thus continued to push the myth that there was a real scandal.

Any claim to neutrality on the part of TaxProf was extinguished when its proprietor wrote an op-ed for USA Today spinning a conspiracy theory about how the Obama people were responding to coded signals to attack conservatives, assuring his readers that there most definitely was a scandal -- not a possible scandal pending further evidence, but a scandal based on what we already knew.  I discussed that op-ed in a Verdict column at the time, and I followed up a year later with an analysis of how the IRS non-scandal fits into Richard Hofstadter's description of the "paranoid style of American politics."

It thus surprised no one when TaxProf dropped the "IRS Scandal, Day xxxx" daily posts after Trump was elected.  The idea that this was never partisan was always a sham.  Even so, when any news does arise about the Republicans' continuing efforts to drag out the non-scandal, the counter is revived.  (I will not be surprised if TaxProf ends up linking to this column and ironically adds the daily counter to it.)

Did this level of irresponsibility hurt the career of TaxProf's editor?  Hardly.  He became the dean of a conservative, religious law school a few years ago.  I should emphasize that he is broadly well liked in spite of his tireless promotion of the non-scandal, and the few contacts that I have had with him over the years have been congenial.  (I was once even a guest blogger for TaxProf, a few years before the non-scandal started.)  If one can say that a person deserves a deanship, I have no doubt that he earned his.  I am saying, however, that propagating a partisan sham did not prevent his elevation within our profession.

Does any of this really matter?  I think it does, in the sense that I described at the beginning of this column: "with some modicum of power comes a requirement at least not to act irresponsibly."  The problem is that one of the main sources of professional and technical information for tax specialists became part of the life-support system to keep the IRS non-scandal alive.  Indeed, conservatives readily cited the "nonpartisan" TaxProf blog's ongoing coverage as proof that the non-scandal was real.

Professors and deans spend surprising amounts of time arguing over things that only we could possibly care about, such as whether we should "slot hire" or hire "best athletes" when searching for new professors.  That is as it should be.  But when we do have the ability to exercise small amounts of real-world influence, we should at least not pretend to be neutral while actively taking sides, especially when taking a side that can only be justified by misrepresenting reality.


Shag from Brookline said...

Some years back I used to follow TaxProf because of my tax background. I was in semi-retirement at the time. But I soured with that blog with its "tax scandal" daily updates. I posted comments at that blog critical of its approach. Sometimes my comment would be removed (or not posted). At one of Neil's posts here at D-o-L several years ago I mentioned this in a comment and Neil in a comment stated he did not believe TaxProf would do that. TaxProf became a celebrity. As Neil notes in this post, followers of TaxProf were reluctant to challenge for various reasons.

I recall the role of Prof. Henry Kissinger in politics, taking a leave of absence from his tenured position at Harvard. I had thought that he would return to Harvard on a timely basis to preserve his tenured status. But Kissinger had become, at least in his own mind, a power celebrity, with opportunities to cash-in his celebrity power. Recall events of his dating of starlets and Kissinger's "Power is the ultimate aphrodisiac." Kissinger had become a stud! By the way, as the years went on Kissinger's accent became thicker and thicker. He appeared on a Dick Caveat show in the 1970s speaking quite distinctly, with no heavy accent. And Kissinger went on to make lots of money in matters of foreign policy. [No "I wonder Who's Kissinger Now" jokes, please!]

There is a very valuable message with this post that should be heeded in the legal blogosphere.


John Barron said...

"Ah feel yore pain." Imagine how us mere mortals feel.

America is an oligarchy. The few control the populace by controlling what we hear. And if you want to get ahead, you have to suck the right cocks. When it came to controlling prescription costs, Cory Booker was every bit as guilty of de facto bribe-taking as Cory Gardner, and a lot of federal judges bribed their way onto the bench.

Morals (and laws) are for lesser men. Right, Clarence "EIGA" Thomas?

The IRS scandal was much ado about nothing. Crossroads GPS (Karl Rove's organization) figured out where the outer boundaries of the law were, and less-sophisticated groups tried to enter by the hole Rove drilled. IRS had a clear duty to challenge the bona fides these new entities, and the only reason that the conservative groups received more scrutiny was that there were a lot more of them.

But as the great Vince Lombardi famously said, "Winning isn't everything. It's the ONLY thing." If you ain't cheatin', you ain't tryin'. Lance Armstrong is a household name ... but does anyone remember who officially won the Tour de France?

Having been there, I learned the hard way that "principle" is extremely expensive real estate. While it is easy to exhort others to stand there, those who do never seem to have skin in the game.

If there is a difference between America and Putin's Russia, it is relatively minor. We both have our Oleg Deripaskas.

Joe said...

Here's one blog for chemical engineers:

I'm reminded of Nightline -- it started as an Iran hostage blog of sorts with a ticker with the days "America Held Hostage."

Neil H. Buchanan said...

I never should have doubted you, Shag!

Joe said...

Shag might be talking about his comment to this:

Shag from Brookline said...

Joe, thanks. The memory is usually the second thing to go for geezers like me, but threads of it remain intact for me. Back in my days of studying and teaching tax law, I couldn't imagine Prof. Boris Bittker as being a partisan when it came to tax law. Here's a link:

"Tax Profs Remember Boris Bittker," By Paul L. Caron

The real political scandal has been Congress' significant reductions in IRS funding for its audit role, resulting in taxpayers playing the "tax lottery."

David Ricardo said...

This message is from another Tax Blog former reader and sometimes poster. The tax news and analysis was good, like other the prejudice on policy and politics ultimately turned me off.

But in terms of bad economic analysis that drives policy nothing has been worse than the aptly named 'Laffer' curve. (A bunch of us laugh everytime we hear the term) This piece of dribble has been the intellectual basis for tax cuts conservatives say that will not only pay for themselves but reduce the national debt. On the Walking Dead this intellectually bankrupt idea would be the star, it lives forever not because of its intellectual integrity (it has none) but because is support massive tax cuts for the rich.

Shag from Brookline said...

I too enjoyed TaxProf for its tax new and analysis. But its daily "Tax Scandal" feature/count was purely political. TaxProf had a well deserved reputation in academia. As I noted in an earlier comment, TaxProf became, in his own mind and minds of anti-Obama conservatives [redundant?]. Compare TaxProf's daily "Tax Scandal" count with the shameless Donald Trump's many years on the "birther" Obama matter. But who expected better from the shameless Trump. TaxProf will have to live with his his daily "Tax Scandal" count as he continues in academic circles.

Remember that the "Tax Scandal" involved IRC Sec. 501(c)(4) which provided for certain political limitations on such organization. Whether or not such political limitations were exceeded was subject to a "facts and circumstances" examination. There were a flood of application by such organizations as an election approached that IRS had to rule upon. As noted in my earlier comment, the true tax scandal was Congress' decreases over the years in funding for IRS audits/enforcement. These organizations used "dark money" for political purposes. Contributions to such organizations were not deductible as charitable contributions. Were such contributions gifts that might require gift tax return filings by contributors, including gifts of appreciated property? Political pressures on IRS forced these not to be treated as gifts under the Code. While applications were from both the right and the left of the political spectrum, mostly this was utilized by the right, generating mucho "dark money." How extensively has IRS been able to audit/enforce IRC Sec. 501(c)(4) since the daily "Tax Scandal" began?

In my salad days of my law practice, I attended most Federal Tax Institute of New England programs on major tax laws enacted by Congress, many of them presided over by Dean Erwin Griswold. There was a feeling of purity at these programs, not political. Outstanding academics, tax practitioners, IRS personnel provided quality presentations, discussions on new tax laws, with critiques when appropriate. I haven't received notices of programs on the GOP 2017 tax act scheduled. While age issues may deter me from attending such, I'm curious as to whether there would be the same felling of purity as I experienced in my salad days. [Note: In my salad days I ate a lot of red meat, now I eat a lot of salad.] Political dysfunction has impacted how the IRS functions on a self-reporting system that will lead to greater deficits for later generations. In my many years of life and practice, I did not consider the IRS an enemy. I still don't.

Shag from Brookline said...

On IRS funding decreases, check out this link:

for the National Law Review's "IRS Funding Woes Likely To Continue," June 29, 2017

which includes this first bullet point:

"A prohibition on a proposed regulation related to political activities and the tax-exempt status of IRC section 501(c)(4) organizations. The proposed regulation could jeopardize the tax-exempt status of many nonprofit organizations, and inhibit citizens from exercising their right to freedom of speech;"

Joe said...

Freedom of tax exemptions?