Abortion, Estate Taxes, and (the Lack of) Real-World Examples

by Neil H. Buchanan

A good storyteller draws in her audience by personalizing a larger theme.  Journalists and politicians succeed when they can find a particularly vivid example of a more general issue, and they then tell a story about how that example supports a specific conclusion.  This is why, for example, presidents starting with Ronald Reagan have invited "real people" to the State of the Union address each year, to be able to point to those people as exemplars of one thing or another.

The Flint water crisis would not have become so important if we did not see lower-middle-class women holding up bottles of brown water that had come from the taps in their homes.  The Black Lives Matter movement became a force not when people studied statistics and found that police violence against black citizens was happening with depressing frequency, but when Michael Brown (Ferguson), Eric Garner (Staten Island), Freddie Gray (Baltimore), Tamir Rice (Cleveland), and others put a face on the problem.  The NFL would not have taken more severe action against Ray Rice without the public reaction to seeing the video of Rice's brutal punch to his then-fiancee's face.

This phenomenon does not always cut in a liberal direction, notwithstanding the examples that I described above.  The infamous Willie Horton advertisement in 1988, run by the "compassionate conservative" George H.W. Bush's campaign to paint Michael Dukakis as soft on crime, used a vivid example of a terrible crime to devastating effect, even though the Dukakis campaign was later able to show that former California Governor Ronald Reagan had once bragged about a program nearly identical to the one in question in Dukakis's Massachusetts.

Because I am not a journalist, I can also take the liberty of relying on an anonymous source, who served in the Justice Department in the 1980's.  He told me that the Reagan political appointees at DOJ directly asked the nonpolitical attorneys to create a public uproar by deliberately committing a Miranda violation in the case of a suspect in a heinous murder, so that the public would become enraged enough to demand the stripping of defendants' rights.  The nonpolitical people responded that they would not knowingly put a ruthless murderer back on the streets, even in the service of an ultimate goal that some of them found appealing.  (Others did not find it so appealing.)

We use terms like "putting a face on" a problem, or "this is the poster child" for an issue, because we understand the power of narrative.  Of course, humanizing an issue is supposed to be only the first step.  We can find heart-rending stories about the victims of an environmental disaster, but we then try to figure out how to balance the risks of future disasters against the trade-offs necessary to reduce those risks.  It seems cold-blooded when we do it, but we know that we must accept the inevitability of preventable harms and even death in order to achieve some goals.  The Willie Horton example is similarly instructive, because states like Massachusetts and California (and many others) had used furlough programs in the informed belief that the risk of crimes committed by furloughed prisoners was outweighed by the advantages of having those prisoners maintain ties with their communities, as well as other advantages.

I thought of all this while reading an editorial in yesterday's New York Times discussing the recent Supreme Court oral argument in the Texas abortion case.  (Readers who missed Professor Dorf's post yesterday, in which he shreds an idea that was raised during that argument, should read it right away.)  The editorial pointed out that the "admitting privileges requirement," which is among the burdens that Texas and other states are trying to impose on abortion-providing clinics, simply has no upside.  That is, we are not balancing some harm from doctors' not having admitting privileges against the burden on women's constitutional rights from limiting the number of doctors who can perform abortions.  As Justice Breyer asked the State of Texas's lawyer: "What is the benefit to the woman of a procedure that is going to cure a problem of which there is not one single instance in the nation?"

Indeed, what does one do when there is "not one single instance" of a supposed problem actually happening?  As the editors noted, "[t]he real answer ... was that anti-abortion activists, who drafted the Texas law and many others like it around the country, know that claims of 'protecting women’s health' have succeeded in giving cover to laws whose true purpose is to end access to legal abortion in America."  In other words, lacking great examples does not make it impossible to pretend that such examples exist.

The problem here, in fact, is even more extreme, because the concept of a poster child is based on the notion that there are many examples of a problem, but one of those examples is especially sympathetic or unsympathetic in a way that crystallizes an issue.  As Breyer noted, however, there are no examples at all, much less a group of examples from which advocates could choose the one that is the most media-friendly.

This post might already be giving readers whiplash, because my examples have ricocheted between domestic violence, abortion, and various types of racism.  But those leaps were nothing compared to where I now turn: the estate tax.  Yes, that's right, the estate tax.  Why?  Because anti-estate tax conservatives have always relied on a claim for which there is not one single example: that family farms and small businesses are broken up against the wishes of the decedent and his heirs, who would have continued to run the family business but were forced to sell it to pay the estate tax bill.

The "protecting women's health" move in the abortion debate, then, is simply an analogy to the "protecting the family farm" move in the estate tax debate.  In the estate tax context, what we have seen is that Republicans (and many farm-state Democrats) insist -- against a complete lack of evidence -- that the estate tax is doing something horrible.  We never even get to the point were we might ask, "Well, is there a net plus to a system that inadvertently but inevitably causes some businesses to be sold under financial duress?"  There is no cost against which to weigh the benefits, because not even one such forced sale has ever been documented.

One way that we know that there is not even one example is that, especially with such a highly politicized issue, any example -- good or bad -- would already have been turned into political legend.  If there were a sympathetic farm family that could be seen crying at the locked gate of their beloved farmstead, holding a picture of their dearly departed father while saying, "If only we had had the money to pay the estate tax, we could have held on to Greenacre!" we would have seen them a million times by now.  On the other hand, if there were an example of a family farm or business that had been sold because of the estate tax, but the family's story suggested that we should not care about their fate, then the pro-estate tax side would surely be pointing to their story.

Almost ten years ago, I wrote a very short (3-page) piece about some of these issues in the journal Tax Notes.  (I know.  How did you miss it?!)  That piece is downloadable here.  My analysis there focuses on an official report from the Joint Economic Committee of Congress, in which the Republican staff repeated the claim that the estate tax breaks up "many family businesses."  Yet the report never presents direct evidence, either through anecdotes or systematic collection of data, showing that there is any problem at all.  Readers of this post who are interested are certainly invited to read my short piece, but I will mention one especially revealing argument here.

The JEC's report cites a study by economists showing that families do not buy enough insurance to prevent losing the family farm or business to the estate tax, which the Republicans on the JEC staff interpret as an explanation for why "estate taxes cause such disruption to family businesses."  When I read the economists' study, however, I found that the text immediately following the sentence that was quoted in the JEC report offers two explanations for that finding, suggesting that (1) these businesses do not need to insure against the estate tax, because they can pay any taxes out of liquid assets, or (2) "contrary to the popular view that keeping a business in the family is very important to business owners, they make no special efforts in this respect."  This is hardly the narrative that the anti-estate tax people are pushing.

In any event, the Texas abortion argument and the never-ending debate over the estate tax are especially vivid examples of Stephen Colbert's famous dictum that "reality has a well-known liberal bias."  More to the point, however, they are a reminder of just how detached one side of the political spectrum in this country has become from anything resembling reasoned debate.  If there are no examples (much less systematic evidence) supporting conservatives' assertions, they simply insist that there are, and then they keep repeating falsehoods as facts.  Could anyone really be surprised that the political conversation in this country has become so unhinged?