Thursday, May 11, 2023

As News Coverage of the Debt Ceiling Expands, It Goes from Bad to Worse

by Neil H. Buchanan

The dangerous insanity of the Republicans' hostage-taking via the debt ceiling continues apace.  Even though very little has changed about the basic contours of the situation, I continue to be surprised by how much there is to write about this endless nightmare.

Here, I will discuss a recent example of what I would describe as bad but (probably) innocent media coverage of the debt ceiling story, specifically a news article that appeared yesterday in TIME.  I am focusing on that article because I was one of the legal scholars quoted in it, based on a nineteen-minute interview with the reporter via telephone on Monday afternoon.  I thus have some knowledge of the process that led to the published piece.

Even though there is no apparent ill intent on the part of the reporter, the article is simply not good.  Not exactly terrible, and not openly pushing a bad agenda (or not exactly doing that), but just ... certainly a long way from good.  Occasionally, it is useful to go through something like this line-by-line, but here I will first set the article in context and then point only to its most important failings.

I concede that there is almost no way to write this column without having it come across as a harsh statement about the reporter.  Even so, that is not my intent, so although anyone who is interested can see his byline on the story, I will not use his name here.  That is because his identity is decidedly beside the point, especially because I will note in various places that many of the problems with the article seem to spring from his editors rather than his own errors or biases.

In my most despairing moments, I wonder how there is any hope for the survival of the US as anything resembling a democratic republic when the press has been as hollowed out and degraded as it is today.  Regular readers of this blog know, however, that I do not in fact think that the American political system will survive.  So there it is.

But what can we learn from one unhelpful news article, an article that is merely a single raindrop within a veritable downpour of useless-or-worse news coverage of the greatest threat to the global economy and the US Constitution that we have seen in our lifetimes?

I am not falling prey to anything like good-old-days sentimentality about the lost greatness of the titans of the fourth estate.  In the US in particular, the press's coverage has always been polluted by corporatism, extremely narrow (and ever-right-shifting) Overton windows, mindless stenographic reporting of official lies, and on and on.  I am only saying that it was once clearly better than it is today.

One theory of the decline of the media in the United States (and, as far as I am aware, in every other country that once had something that could be called a robust and independent press) is that budget cuts and consolidation have made it impossible for most media organizations to employ a stable of people who can be given a specific beat and thus gain the expertise necessary to avoid being rolled over by politicians and spinmeisters.

Late last week, for example, a reporter from a different publication contacted me to ask for an interview about the debt ceiling, and I noticed that the signature line in her email listed her beat as "national security and legal affairs."  That is actually more specific than most reporters' portfolios these days, and I suppose that one could argue that the "legal affairs" reporter is the right person to write the debt ceiling story.  But seriously, the national security reporter?  In any case, I agreed to be interviewed by that reporter, who then failed to follow through after saying that she would call me back.  Annoying as that is, I suspect that being a reporter at a middling news outlet is a classic situation of being overworked and underpaid, so in my more forgiving moments, I am able to sympathize.  A bit.

But that theory,  that the press is getting worse because of budget cuts and everyone being forced to be a jack of all trades, only goes so far.  The budget at The New York Times is hardly small, and they do have reporters with specific long-term assignments that should allow them to become good at their jobs.  It is thus more than a bit disappointing, to put it mildly, that the debt ceiling coverage at The Times has been mostly assigned to a reporter who (often writing with a second reporter on the same beat) openly and repeatedly takes tendentious positions on government budgeting -- positions that are in some cases simply awe-inspiring in their vacuity -- and even on his best day manages to make about nine-tenths of an argument that fails unless it is ten-tenths solid.

It is not even sufficient, of course, that a reporter have graduate training in economics to be competent on the subject, but it would help to have been an econ major, maybe?  Apparently, The Times disagrees.  In any case, it should not surprise anyone that the reporter who has been given free rein to stoke anti-deficit and anti-debt panic now regularly conflates the debt ceiling with the debt, even though the two have nothing to do with each other.  It evidently counts as being "fair" when this reporter concedes that "The Debt Ceiling Debate Is About More Than Debt."  Yes, in the same way that the free speech debate is about "more" than giving away free bananas and mangoes.  Other than the word "free," they have nothing to do with each other.

Back in January, I wrote here on Dorf on Law that "It Matters that the Debt Ceiling 'Debate' is Being Left to Poseurs," where I had more than reporters-cum-rightwing ideologues in mind.  There is a universe of opinionators, think-tank types, and academics who specialize in drive-by snark, uninformed hot takes, and baseless (but confident) pronouncements.  Although that universe skews to the right politically, this is one of the few instances in which a "both sides do it" complaint is very fair (as the criticism that Professor Dorf and I have recently leveled against the lefty fans of the platinum coin gambit makes clear).

Once the debt ceiling story became one of the dominant items in the news, however, we started to see the problem morph from being poseur-dominated to being naif-dominated.  There are, of course, many more naifs (especially on a topic like the debt ceiling), and they bring not only a dearth of knowledge or informed judgment to the table but a huge dose of the most reductionist and unexamined conventional wisdom.

In the case of the TIME article, this took an interesting form.  Unsurprisingly, when the reporter contacted me, he said that he was writing about the Fourteenth Amendment argument.  I groaned upon reading that, given how much Professor Dorf and I have been emphasizing recently that the Fourteenth Amendment argument is sufficient but unnecessary -- as well as being a clear second-best to our least-unconstitutional argument, which is based on separation of powers concerns.  Even so, I understood that the editors at TIME (who surely are as uninformed about this as their reporter is) most likely had been motivated by thinking along these lines: "Oh, everyone seems to be talking about the Fourteenth Amendment thing, so we should write about that, too.  How hard could that be to understand?  Who's available to write it up?"

Even so, I spent the vast bulk of my time talking to the reporter explaining why the Fourteenth Amendment is the less-strong argument, what the difference between the two constitution-based arguments are, and why Biden would be smarter not to mention the Fourteenth at all.  After all that, what was the resulting article's title?  "Could Joe Biden Use the 14th Amendment to Solve the Debt Ceiling?"  Again, I understand what most likely happened.  Even if the reporter had tried to pitch his bosses on the idea that the Fourteenth Amendment angle was the wrong way to think about it, the "news hook" was not to be abandoned.  Who cares about the content?

And speaking of content, the article gets off to a disastrous start with this opening paragraph/sentence: "As the political brinkmanship over the debt limit continues, Biden Administration officials are being asked whether they’d invoke a controversial legal theory under the 14th Amendment that may allow the President to bypass Congress and raise the nation’s debt limit without Republican approval."  What?  No one has ever said that any president can raise the debt ceiling, because that requires a change in the law.  Even if the article must be focused on the Fourteenth Amendment, is it too much to ask that the story be told accurately -- that the President would say that that amendment forces him to treat the debt ceiling statute as void for being unconstitutional, just as a law allowing the government to censor TIME would be unconstitutional?

There is some simple sloppiness in the article (my book, The Debt Ceiling Disasters, was published in 2013, not 2011, although I do appreciate the plug, I suppose), but the problems run much deeper than that.  The second sentence -- yes, I promised that I would not go through this line-by-line, but the problems began from the very top of the article -- informs us that "[t]he theory, which previous administrations had ruled out, builds on Section 4 of the 14th Amendment ..."  On reading that line, I remembered that we had spent a fair amount of time in the interview talking about that very issue, with the reporter directly asking me about the Obama Administration once having said that their legal advisors had concluded that the Fourteenth Amendment argument was not a winner.

What did I think of that?  Well, I said, that is exactly what Obama needed to say in that context, because he was engaged in a stare-down with Republicans and wanted to keep the pressure on by not allowing them to say, "Oh, he's gonna do that amendment thing, which we can hammer him on, so let's not budge."  (Aside: the idiom "stick to our guns" almost poured out of my fingers just now, but using that phrase to describe Republicans these days seems a bit too on-the-nose.)  The reporter followed up with a good question: "So he was just being strategic?"  Absolutely.  Obama never had to make the call to use the Fourteenth Amendment or anything else, because Republicans blinked.  That does not mean that Biden should treat that as forever ruling out a more definitive response to a more extreme situation.

When he quotes me, the reporter shorthands the least-unconstitutional argument almost to the point where it has no content, and then he writes that Laurence Tribe's Times op-ed this past Sunday "argu[ed] a similar position," even though I explained to the reporter that Tribe's argument was in fact the very same position.  The article then quotes me saying that any legal challenges would take weeks or months to resolve, but there was no context or payoff to that statement, and no answer to the "So what?" question, even though I had explained to the reporter why the timing mattered.

What was especially worrying, however, was that the article then ended abruptly with this:

This isn’t the first time people have wondered about using the Constitution as a way out of a debt ceiling fight. When Biden was Vice President, former President Barack Obama closed the door on a 14th Amendment argument when confronted with a similar situation in 2011. “I have talked to my lawyers,” Obama said at the time. “They are not persuaded that that is a winning argument.”

That was it, without any mention of the explanation that I offered, or the possibility that this is a new situation with new dynamics.  In the end, the article presented the Fourteenth Amendment as "controversial" and having been rejected by the President that Joe Biden served.  The callback at the end to the second sentence serves to make the piece a purported bit of reporting that is in fact taking a position on the issue -- and an incorrect position at that.

Again, however, I do not completely blame the reporter.  The very abruptness of the ending of the piece had all of the earmarks of a column that his editors had mercilessly cut off at an arbitrary point, most likely based on the conventional training of reporters that news stories should be written such that an editor can hack off any number of sentences or paragraphs, starting from the bottom up, and still leave a publishable article.

And as I noted above, I do not exactly feel anger toward the editors, who showed themselves to be ignorant of any nuances of the story and who defaulted to publishing something that says close to nothing but somehow still manages to support House Republicans' position that Biden cannot neutralize their threats.  If it matters that the debt ceiling "debate" is being left to poseurs -- and it does -- it also matters that one of the most important political and economic crises facing the country and the world is now being explained to the public by people who, no matter whether they are acting in good faith or not, simply do not know what they are doing.