Category: reason

If the Obama administration used an informant to spy on Donald Trump’s presidential campaign “for political reasons,” the president said last Friday, it would be the “all time biggest political scandal.” Two days later, Trump announced his intention to “demand” that the Justice Department “look into” that possibility. Trump’s motivation—discrediting independent counsel Robert Mueller’s investigation of ties between his campaign and the Russian government—was clearly political. But as far as Trump is concerned, there was nothing even faintly scandalous about his demand.

“When the president does it,” Richard Nixon famously told David Frost, “that means that it is not illegal.” Trump has added his own corollary: “When Donald Trump does it, that means it is not improper.” Trump understands that there is supposed to be a distinction between justice and politics, that the DOJ’s tradition of independence helps preserve that distinction, and that presidents are not supposed to treat the department as a tool for implementing their petty agendas, even though the Constitution gives them the power to do so. He just does not want to play by those rules.

“I am not supposed to be involved with the Justice Department,” Trump complained in a radio interview last November. “I’m not supposed to be involved with the FBI. I’m not supposed to be doing the kind of things I would love to be doing, and I am very frustrated by it.”

At the time Trump was “very unhappy” that the FBI was not “going after Hillary Clinton with her emails and with her dossier,” meaning the opposition research that the Clinton campaign and the Democratic National Committee paid former British spy Christopher Steele to produce. The bee currently in Trump’s bonnet is the FBI informant who reportedly contacted three Trump campaign advisers (Carter Page, Sam Clovis, and George Papadopoulos), apparently in an attempt to assess the extent of their links to the Russian government.

Although Trump offered no evidence that the informant’s activities were illegal or inappropriate, Deputy Attorney General Rod Rosenstein tried to placate him by asking the DOJ’s inspector general, Michael Horowitz, to look into the matter. Horowitz is already investigating whether the FBI improperly relied on the Steele dossier in seeking warrants to eavesdrop on Page under the Foreign Intelligence Surveillance Act. “If anyone did infiltrate or surveil participants in a presidential campaign for inappropriate purposes,” Rosenstein said on Sunday night, “we need to know about it and take appropriate action.”

That gesture may give Trump a face-saving way to retreat from what sounded like a plan to order a criminal investigation that DOJ officials do not think is justified. But if push comes to shove, Trump plainly has the power to override their judgment and to fire them if they refuse to comply. As he bragged in an interview with The New York Times last year, “I have [an] absolute right to do what I want to do with the Justice Department.”

The fact that he has the right to open or close investigations at will, of course, does not mean he would be right to do so. In an upcoming article, Fordham University law professor Bruce Green and New York Law School professor Rebecca Roiphe argue that “the Department of Justice is independent of the President, and its decisions in individual cases and investigations are largely immune from his interference or direction.” That situation, they say, “does not result from any explicit constitutional or legislative mandate” but is instead “based on an evolving understanding of prosecutorial independence and professional norms,” which serve as “a fundamental check on presidential power.”

Trump clearly has no respect for those norms, except insofar as violating them hurts him politically. Hence his angry incomprehension when Attorney General Jeff Sessions recused himself from the Russia investigation, which led to Rosenstein’s appointment of Mueller. Sessions’ loyal service to the Trump campaign, which was the reason for his recusal, was the very reason that Trump thought he could count on Sessions to “protect” him. Trump’s periodically erupting rage at this perceived betrayal suggests he is genuinely puzzled by the notion that Sessions recused himself as a matter of principle, based on his honest understanding of DOJ regulations.

Trump nevertheless has not fired Sessions, or Rosentein, or Mueller. The fallout from his dismissal of FBI Director James Comey may have convinced him it is not always wise to act on his angry impulses. If he is not careful, the spectacle of an unhinged, unprincipled president treating the DOJ as his personal law firm may yet persuade voters, or even members of Congress, that Trump does not belong in the White House. Like the president, they have an absolute right to fire an official whose performance displeases them.

Today is publication day for John McCain’s career-capping book, The Restless Wave: Good Times, Just Causes, Great Fights, and Other Appreciations, co-written with longtime speechwriter Mark Salter. I have written here previously about the book’s surprising (though unsurprisingly unreflective) admission that the Iraq War was a “mistake,” and also its unrepentance about accusing Sen. Rand Paul (R-Ky.) last year of “working for Vladimir Putin.”

The combination of the book, the forthcoming Memorial Day HBO documentary John McCain: For Whom the Bell Tolls, and the busy end-of-life arrangements are producing what Politico media columnist Jack Shafer calls “the last McCain swoon” from America’s political journalists. “Not even Derek Jeter and David Ortiz were flurried with as much confetti when they departed,” Shafer acidly observes.

There are many causes for the liberal media’s long and only briefly interrupted (in 2008) love affair with this Republican politician, many of which I get into my 2007 book, as well as posts here from 2008. But key among them is that like many elitists, McCain shares with the national political media an unconcealed disdain for swaths of the GOP grassroots, particularly as amplified by the conservative media.

“Stop listening to the bombastic loudmouths on the radio and television and the Internet,” the senator said during his dramatic Senate speech last summer. “To hell with them. They don’t want anything done for the public good. Our incapacity is their livelihood.”

Here, in language frequently indistinguishable from that of New York Times reporters, are nine instances in Restless Wave where McCain excoriates the conservative media:

1) Describing his fight with Mitt Romney for the 2008 GOP presidential nomination:

I was also on the receiving end of daily attacks from talk radio blowhards. They had some effect, but they aren’t as influential as they like their listeners to believe. They make quite a living from promoting polarization in the country, and scaring politicians who can only win races in gerrymandered districts.

2) While complaining mildly about the media’s pro-Obama bias during the general election:

But given the media environment we live in today, where we can restrict information gathering to sources that tell us only what we want to hear, where crackpot conspiracy websites like InfoWars and Breitbart, and Russian propagandists such as Russia Today and WikiLeaks, are taken more seriously by their credulous followers than journalism practiced with professional standards and ethics, the problem of routine liberal bias in the media seems positively quaint.

3) Talking about his famous “No ma’am. He’s a decent family man, citizen” comment about Obama:

Obviously, this was before our contemporary understanding of how the Internet is used to spread conspiracy theories and calumnies about candidates to people with an appetite for that sort of thing or an inability to discern what could be true from something spawned in the fever dreams of people who should probably seek psychiatric help. Today, of course, Internet nuts and haters find willing recipients for their “ideas” on certain cable news and talk radio shows.

4) Explaining why he didn’t accept Teddy Kennedy’s invitation to switch parties after the 2000 election:

I was a Republican, a Reagan Republican. Still am. Not a Tea Party Republican. Not a Breitbart Republican. Not a talk radio or Fox News Republican. Not an isolationist, protectionist, immigrant-bashing, scapegoating, get-nothing-useful-done Republican.

5) Sketching out his personal creed:

I believe in the separation of powers, a press free to report without fear or favor, and free to infuriate politicians—including me—as they do. Lastly, I believe in principled compromises that move the country forward, goodwill toward Man, and empirical facts.

6) Talking about anti-immigration conservatives:

There are politicians today who would have Americans believe that illegal immigration is one of the worst scourges afflicting the country. Some who espouse that nonsense believe it to be true. Their opinions were formed in restricted information loops as they communicate mostly or exclusively with people who believe the same. Many more know it isn’t so, and are cynically claiming otherwise for one of a couple reasons. I expect most are identifying a scapegoat people can blame for their dissatisfaction because it suggests there is an easy fix for difficult problems, an easy fix that’s easy to campaign on. Others are doing it for more sinister reasons they’re reluctant to acknowledge publicly, including racial prejudice. Whatever their reasons, the cynical and the ignorant promotion of false information and unnecessary fear have the same outcome. Decent, hardworking people who mean no harm are blamed for crime, unemployment, failing schools, and various other ills, and become in the eyes of many the objects of hate and fear.

7) Regarding the 2006 efforts at comprehensive immigration reform:

The issue was starting to heat up on the Far Right. Bashing illegal immigrants proved popular with conservative talk radio audiences, and if any industry enjoys beating dead horses, it’s conservative talk radio. Honestly, having to dream up more hyperbole on the same damn subject day after day would bore the hell of me.

8) In a section about his handling of the Russian dossier:

So, I’ve been to crazy town before, and I’ve seen how impervious to reason, facts, and common sense these delusions can be. Most are still the work of nuts and frauds, but they proliferate like never before and persist forever on the world wide web. I noted the traffic of absurd conspiracies in the 2016 campaign, and we know now that many of them were conceived and disseminated by Russia, which makes their embrace by politicians too gullible to dismiss them or too shameless to resist exploiting them all the more disconcerting. But those kinds of politicians were around before the advent of the Internet, too. From Joe McCarthy acolytes to moon landing deniers to 9/11 Truthers and Obama Birthers, there has always been a market for “the paranoid style in American politics,” as historian Richard Hofstadter termed it.

9) Bemoaning gridlock:

There are a lot of contributing factors to the gridlock that frustrates so many. Chief among them is how much more polarized we are as a society. We are secluding ourselves in ideological ghettos. We don’t have to debate rationally or even be exposed to ideas that contradict ours. We have our own news sources. We exchange ideas mostly or exclusively with people who agree with us, and troll those who don’t. Increasingly, we have our own facts to reinforce our convictions and any empirical evidence that disputes them is branded as “fake.” That’s a social trend that is going to be very hard to turn around given the prevalence in our daily lives of media and communications technologies that enable it.

When I was a teenager, strangers would sometimes stop in front of our house to take pictures of our front yard. We lived on a run-down street with no sidewalks or paved driveways in what was then a low-income neighborhood in a low-income town 45 minutes outside Orlando. But people didn’t stop because of the poverty. They stopped for my mom’s butterfly garden.

I cannot name every plant she grew, but I remember her telling me once that our tiny yard drew every kind of butterfly that migrated through Central Florida. When the flowers were in bloom and the butterflies were in attendance, our home looked like a Monet come to life.

But not everybody liked the garden. One day the man who owned the rental house next door informed my mother that he thought she should tear it down and have a normal yard like everybody else on the block. In his opinion, the best way to maintain a lawn was to mow the grass down to the nub every two weeks. After their initial conversation, he pressured my mom to raze her garden whenever he visited his rental property.

She didn’t have to appease him. We didn’t live in a subdivision and weren’t bound by the rules of a homeowner’s association. But my mom is a peacemaker, and so she had my brother and I put up a trellis between his yard and ours to create a visual barrier. We thought that would do it. We were wrong.

Six months later, a code enforcement officer paid us a visit. The man who owned the house next door had filed a complaint, claiming he’d seen a rodent scuttle into and out of the garden. (This was probably true! A good garden is home to more than just a few plants.)

After touring the yard with my mom, the code enforcement officer informed her that we would need to tear most of it down. My mom pleaded and explained that the wild flowers sustained butterflies and bees and that there was order in the apparent wildness. She had, after all, designed and planted the entire thing.

The city gave her a week to clear the yard. After that, she would be fined several hundred dollars a day until our yard looked as militantly minimalist as the lawn next door. Broke as hell and busy raising two boys on her own, my mom ran a push mower through the most beautiful garden in town. Afterward, she wept.

I was reminded of that event last week, when the San Diego Union-Tribune reported that the San Diego County Department of Environmental Health had told an independent hardware store it could no longer offer free popcorn to customers unless it installed kitchen equipment and submitted to regular inspections, as required by the 1984 California Uniform Retail Food Facility Law. Meanley and Son Hardware had given free popcorn to customers for the last 25 years without incident.

This is not the first time the county has clamped down on free popcorn in hardware stores, according to the Union-Tribune‘s Peter Rowe:

Three years ago, inspectors cited Encinitas’ Crown Ace Hardware and San Carlos True Value Hardware.

“The Health Department came in,” said San Carlos True Value manager Danielle Matheny, “and told us if we wanted to continue giving away free popcorn and coffee we’d have to install a bigger vent system, a bigger and better sink in the break room—a lot of rules and restrictions they put on us.”

In both Encinitas and San Carlos, the stores dropped the practice. Inspectors so far have ignored Payton’s, but El-Hajj figures it’s just a matter of time.

“I feel sad,” she said, “that some of the old traditions we have become so regulated.”

Free popcorn is right down there with butterfly gardens in the reverse concern pyramid. There are probably people reading right now who think dedicating this many words to either one is borderline irresponsible, considering the abundance of problems plaguing humanity. But both intrusions share a common theme with more pressing incidents: They wouldn’t have happened if someone—or perhaps multiple someones—hadn’t decided to employ the state to settle a grievance best addressed by looking the other way:

Meanley and Son’s fate was sealed with an anonymous tip phoned into the authorities. Employees popped the corn, but the rest of the operation was self-serve, with a scoop and bags set out for patrons. The tipster claimed some folks stuck their bare, potentially grimy, fingers into the machine, plucking out crunchy handfuls.

The person who complained about the popcorn has a lot in common with the neighbor who sicced the code enforcers on my mom. And they both have a lot in common with the New York lawyer recently caught on camera threatening to report a group of Spanish-speaking restaurant employees and customers to ICE; with whoever called police to report “a ‘suspicious man’ walking on the bike path with a baby” here in D.C. a few weeks back (the baby was his son); with the busybodies who regularly report parents for leaving their kids in the car while grabbing some groceries or upon spotting children playing without adult supervision; with the Buffalo union official who proudly rats out undocumented immigrants at job sites; with the bigots who treat the mere presence of black people in predominantly white spaces as a threat to their safety.

Three projects might help roll back the problem.

The first is to help people who find some of these stories outrageous and others inconsequential to see all of them as related. The parallels seem vibrant and stark to me, and perhaps to the average Reason reader, but not, I suspect, to everyone. Being black in a white space is not against the law, yet working without permission in the United States very clearly is. Cultivating a garden is not the same thing as violating a health statute.

Fair enough. But it’s a short logical step from “That’s illegal!” to “That might be illegal!” and from “That is unsafe!” to “That makes me feel uncomfortable!” You can help friends and family and partners think differently about when it’s appropriate to invoke state power by sharing stories of times when calling in the authorities caused far more harm than the alternative. A lot of people don’t seem to think very hard before calling the cops—it’s free, it’s fast, and there are no consequences for overreacting. You don’t even have to give your name! Heck, I accidentally called 911 at the farmer’s market a month ago when I mistook my phone’s power button for the volume button and pressed it three times in a row. It’s worth the time and trouble to ask people questions (“How would you feel if someone called the police because you let our kids play in the front yard by themselves?”) that might have an impact on how they think about these things.

The second project is a political program: to drastically scale back the police powers of every arm of the state. Not just the police police, but the health police and the tax police and the zoning police. All those agencies work in concert. The person who refuses to pare back her garden gets a fine. If she doesn’t pay the fine, she loses her driver’s license. If she drives regardless, because her job or family needs her to, she gets arrested. The police state is a hydra, so let’s treat it like one.

Lastly, we need to look for ways to block the pending age when algorithms take such steps for us. I may be alone in thinking Facebook’s suicide intervention algorithm is a terrible idea, but it’s only a matter of time before it sends cops to someone’s house and the person dies at police hands rather than his own.

It is more important than ever to recognize the incredibly high stakes of inviting the state into other people’s lives. An army of advocates are trying to help America’s immigrant population but failing to make a difference at scale—not because these groups lack talent or commitment or knowledge, but because the state is a behemoth with infinite resources and a monopoly on violence. At the local level, the number of government agencies messing with people often outnumber the organizations fighting back.

So talk with your neighbors and friends and family. Complain to local officials. And try not to tap your iPhone’s power button too many times.

Addison Barnes almost made it through his senior year at Liberty High School without triggering a First Amendment battle—but not quite. According to a new federal lawsuit filed on Barnes’ behalf, administrators at the Oregon school banned the student from wearing a tee-shirt in support of Donald Trump’s plan to build a wall along the U.S.-Mexico border.

“If people are offended by his shirt—that’s their right to be offended,” Mike McLane, the student’s attorney, told local newscasters. “But it’s also his right to have his opinion, as well. The constitutional line isn’t who’s offended. The constitutional line is there a specific and clear disturbance being created by the expression of the student’s political speech.” And in this case, said McLane—who also serves as a state representative and the House Republican leader—there was no disturbance except for the one instigated by school officials.

Barnes wore the offending shirt to his politics class on a day they were scheduled to discuss immigration. According to the suit, the assistant principal told Barnes that his shirt—which reads “Donald J. Trump Border Wall Construction Co.,” followed by “The Wall Just Got 10 Feet Taller” (a quote from Trump’s primary debate days)—was offensive to the teacher of the class and to at least one student.

She told him cover up the shirt if he wanted to return to class, which he did. But once back in class, Barnes again unveiled the t-shirt—this time prompting a visit from the school’s security guard, who took him to the assistant principal’s office. She allegedly threatened Barnes with suspension if he did not cover up his t-shirt. When he still wouldn’t comply, she issued a suspension and sent him home.

In his suit against the Hillsboro School District and Liberty High School, Barnes accuses officials of “suppression of a student’s political speech based on other students’ and teachers’ alleged discomfort with the ideas and message” that the speech conveyed.

Barnes “engaged in a respectful, silent, and peaceful expression of his political views by wearing a t-shirt supporting the immigration and homeland security policies of President Donald J. Trump to school,” the suit says. Making him cover the shirt or face disciplinary action “was unconstitutional,” since “the First Amendment protects students’ right to speak on political or societal issues—including the right to express what school officials may consider unpopular or controversial opinions, or viewpoints that might make other students uncomfortable.”

The school district has said that it will not comment on the pending case, which was assigned this week to Magistrate Judge John V. Acosta of the U.S. District Court in Portland. The next case deadlines are set for the fall.

If things did play out as Barnes says, it would seem he has a good chance of winning the case. Whatever you think of the kid’s shirt or his preferred border-security plans—and I’m not a fan of either—his understanding of the First Amendment is sound. If only the same could be said for the school’s administrators.

A quick update on Los Angeles’ plan to electrify its bus fleet: The government has now spent millions of dollars on shoddy, nonfunctional vehicles from a manufacturer that transit officials had a direct financial interest in supporting.

Last year Metro—that’s the Los Angeles Metropolitan Transportation Authority, which runs bus and train service in most of Los Angeles County—promised to replace all 2,200 of its natural gas–powered buses with battery-powered vehicles by 2030. Los Angeles Mayor Eric Garcetti has pledged to purchase only zero-emission buses by 2025.

To achieve these ambitious goals, Metro and other city and county agencies have funneled $330 million in public contracts to BYD, a vehicle manufacturer based in China. An exhaustive Los Angeles Times investigation shows that taxpayers got very little in return for that money: The company produced buses that could not travel the advertised ranges, that stalled on the city’s steep hills, that had doors that wouldn’t close, and that required far more service calls than the buses they were designed to replace.

The Times also found that some of the officials responsible for awarding grants to BYD owned BYD stock, attended BYD-funded junkets, or received tens of thousands in campaign contributions from BYD.

Take Mike Antonovich, a longtime Los Angeles County supervisor and the chairman of Metro’s board, who did not disclose his ownership of BYD stock and who received some $13,500 in campaign contributions from the company while voting on initiatives that would directly benefit it, including a $30 million grant for new bus technology and a plan to convert the entire Metro fleet to electric vehicles. Antonovich reportedly helped secure a $9.45 million in incentives for BYD to establish a headquarters and manufacturing facility in Los Angeles County.

Also benefitting from BYD’s largesse was Len Engel, transit manager for the Antelope Valley Transit Agency. Engel’s agency awarded a $72 million contract to BYD to electrify its entire bus fleet in 2016. That same year, the company paid Engel’s expenses for week-long trips to China and Ecuador and also hired his sister-in-law for an administrative post.

While has BYD proved to be a deft influence peddler, the Times reveals that it is a less than sterling bus manufacturer. When the first five BYD buses hit Los Angeles’ streets in 2015, the vehicles averaged only 59 miles between charges, despite promises they could reach ranges of 155 miles. (Normal Metro buses have a range of about 385 miles before needing to refuel.) The BYD buses also stalled going up hills and required service 10 times more frequently than other Metro buses.

All the problems forced BYD to buy its own buses back from Metro after a couple months on the road in 2016. No BYD buses are currently operating in Los Angeles.

Despite these problems, Los Angeles has continued funneling money toward BYD. Last year the company scored another $47 million contract to provide Metro with 60 buses despite its staff offering negative technical reviews of its bid. That same year the city requested $10 million in grants to buy electric BYD garbage trucks the sanitation agency doesn’t even want.

The warped incentives here extend beyond direct payments to officials or their campaigns. By locating its manufacturing facility in Los Angeles County, BYD has been able to argue that the additional money spent on their buses (electric buses cost about twice that of their traditional diesel counterparts) will come back to their community in the form of jobs and tax revenue. The economics of that argument might not pencil out, but the politics of concentrating jobs in an official’s district while spreading the cost of those jobs across all taxpayers is tried and true.

Likewise, politicians with higher aspirations may find more political rewards by looking tough on climate change than by running a good bus service. That’s particularly true of Garcetti, who is eying a run for president in 2020 and who has raised his national profile by attacking Donald Trump on climate change. When the president announced he was pulling out of the Paris Climate Accords, Garcetti vowed that L.A. would abide by the emission target agreement nevertheless, a move that attracted national headlines.

Garcetti even jetted off to Paris, where he made that pledge to only purchase emission-free vehicles by 2025.

Meanwhile, the local taxpayers one might expect to raise a stink about spending on useless buses have been quieted somewhat by the fact that much of the money for electrifying Los Angeles’ bus fleet comes from state and federal grants. Just this past month, for instance, Los Angeles got $36 million in state funds to buy 112 electric buses.

The moral: Public transportation agencies have a lot of goals. Just one of them is transporting people.

What would Richard Nixon’s fate had been if the Watergate break-in happened in 2016 instead of 1972? For some political and journalistic commentators, the historical speculation is too tantalizing to resist. “There’s more likelihood he might have survived,” former Nixon legal counsel John Dean mused five months ago, “if there’d been a Fox News.”

The Nixon-Fox escape is an increasingly popular theory these days. It’s a way to analogize (prematurely) President Donald Trump’s murky Russia-related behavior to the impeachable sins of Watergate, and it’s a way to bemoan the power-aggrandizing feedback loop within the contemporary conservative media bubble. “Fox News might save Trump from another Watergate,” posited Vox last week. “Nixon never would have been forced to resign if you existed in your current state back in 1972, ’73, ’74,” Geraldo Rivera told Sean Hannity on the latter’s radio show in February.

At best, these counterfactuals do not take into consideration the ways that the more tightly regulated media landscape of the early 1970s played directly into Nixon’s dirty hands. At worst, they morph into calls for reviving the Fairness Doctrine and strengthening Public Interest requirements—constitutionally questionable regulatory tools that Nixon enjoyed, Trump envies, and too many in the media pine for.

Much of the journalism profession’s sense of nostalgia and motivation is centered on the romanticized refutation of Richard Nixon—publishing the Pentagon Papers under legal duress, allegedly turning the tide of public opinion against Vietnam, shoe-leathering that low-rent Watergate break-in until a whole presidency imploded. Reporters had values back then, patriotic values, and helped save us from a power-abusing authoritarian.

In fact, as the Watergate story was first unfolding Nixon enjoyed far stronger support among daily newspaper editorial boards than he did even with a voting public that would re-elect him by 23 percentage points. In a presidential campaign already marked by the September 1972 revelation that former attorney general John Mitchell had overseen a slush fund to spy on the president’s enemies, Nixon won the ed-board endorsement war over Democratic challenger George McGovern in a landslide, 753 to 56. (The final daily-newspaper split for Trump and Hillary Clinton, for those keeping the analogy, was the inverse: 20 to 244, with Libertarian Gary Johnson receiving 9 endorsements and independent Evan McMullin 1.)

Did Nixon’s endorsement rout reflect a pure preference for the same administration that famously referred to members of the Fourth Estate as “nattering nabobs of negativism“? No.

In March 1969, the Supreme Court ruled in Citizen Publishing Co. v. United States that “joint operating agreements” (JOAs), in which a city’s competing newspapers share business-side operations, violated the Sherman Antitrust Act. There were 44 such newspapers in 22 cities at the time of the ruling, and so (in the colorful words of the Washington Post‘s Bill Prochnau in 1981), “publishers descended on Washington like locusts on Salt Lake City.” Their goal was to revive a languishing bill originally (and accurately) known as the Failing Newspaper Act but by then rebranded as the Newspaper Preservation Act.

“The lobbying which went on for this bill may well have set new records,” the former New Hampshire senator Thomas McIntyre told Prochnau. Chief among the palm-greasers was the once-mighty Hearst Corporation, which had pioneered the JOA as a way to forestall the eventual collapse of second-banana papers and to squeeze out monopoly-style profits for another decade or three. Nixon’s Justice Department was against the bill, but his Commerce Department was for it. Hearst Corporation Chief Executive Richard Berlin was blunt about the value proposition to the president, writing in a letter to Nixon:

Those of us who strongly supported the present administration in the last election are the ones most seriously concerned and endangered by failure to adopt the Newspaper Preservation Act. The fact remains that there was almost unanimous support of the Administration by the newspapers who are proponents of the Newspaper Preservation Act. It therefore seems to me that those newspapers should, at the very least, receive a most friendly consideration.

Nixon signed the bill into law. And the Hearst papers in 1972 were no longer “almost unanimous” in their support; they were unanimous.

What of the news-gathering side of those Nixon-era journalism establishments? “In the 1970s, there tended to be an agreed-upon set of facts that the journalist reported,” claims Jon Marshall, author of Watergate’s Legacy and the Press, in the aforementioned Vox article. “So if you watch the CBS or NBC and ABC newscast, there would be some variation on the stories they covered and what they emphasize and didn’t emphasize. But they agreed mostly on what was happening….I don’t think that exists today.”

The implication here, I think, is that the Big Three broadcasters’ “agreed-upon set of facts” was uncongenial to a fact-bending president. But that’s not how it looked inside the White House.

In memos written in 1970 and unearthed by the Senate Watergate Committee in 1973, senior administration officials bragged about exerting “an inhibiting impact on the networks,” in part by invoking the real threat of regulatory retaliation. Former White House counsel and eventual Watergate convict Chuck Colson crowed about personally pressuring executives from each network, reporting that they were “very much afraid of us and are trying hard to prove they are the ‘good guys.'”

“These meetings had a very salutary effect,” Colson wrote, “in letting them know that we are determined to protect the President’s position that we know precisely what is going on from the standpoint of both law and policy, and that we are not going to permit them to get away with anything that interferes with the President’s ability to communicate….The harder I pressed them, the more accommodating, cordial and almost apologetic they became.”

Colson’s main policy weapon was the same one many contemporary Trump-opposing media nostalgiacs want to bring back: the Fairness Doctrine. That Federal Communications Commission rule—inaugurated in 1949, enshrined by the unanimous Supreme Court decision Red Lion Broadcasting Co., Inc. v. Federal Communications Commission in 1969, abandoned in 1987, and finally struck from the books in 2011—required broadcast license-holders to air pieces on controversial news topics and allow for opposing viewpoints to be heard.

The doctrine was a blunt instrument for powerful political interests to scare stations away from broadcasting anything that might trigger a demand for an opposing response. As economist Thomas Winslow Hazlett wrote in Reason earlier this year, “The goal was not to get on the radio but to tax political dissent, getting opposing views off. The cynical campaign worked, and then some. Broadcast radio and television devoted almost no valuable time to public affairs; unorthodox beliefs scrambled and hid.”

The system was maximally geared to favor the powerful just as Tricky Dick was leaning into his first term. “The Nixon White House was seeking systematically to politicize broadcasting,” legendary CBS broadcaster Fred Friendly wrote in a must-read 1975 New York Times history of the doctrine and its abuses. “A Supreme Court decision that could be construed as the opening wedge for Government involvement in decisions of content on a broadcast‐by‐broadcast basis meshed with the aspirations of the Nixon Administration.” That combination produced results:

There is evidence…that major broadcasters were in fact inhibited by the Government during this period. They granted Richard Nixon more free air time than any President had ever sought before to announce and explain his programs. And with few exceptions, they acquiesced in the demand of the White House that views too critical of the President and his policies be kept off the air—when, for example, the Democratic National Committee sought to purchase reply time to the President.

Not only did the Fairness Doctrine dissuade broadcasters from tackling politics, its kissing cousin, the Equal Time Rule, drove license-holders still further away from the business of putting pols under the bright lights. Hazlett again:

The Equal Time Rule…quashed rather than fostered presidential (and other) debates by giving all office seekers—dozens—the legal right to crowd onto the stage. Neither the major networks nor the major candidates would consent to participate in these circuses.

An act of Congress temporarily waived the equal time mandate in 1960, thereby allowing the famous Kennedy-Nixon debates. No such special dispensations were enacted in 1964, 1968, or 1972, and presidential debates were again lost. The law was revised in 1976 in a way that made such waivers standard, and debates have been the hit of every presidential season since. Only by eliminating a rule meant to promote “equal time” was it possible for public debate to gain any time.

The Nixon administration’s ability to sculpt a maximally favorable media environment is something Donald Trump impotently aspires to but cannot ape. After (and even before) the president warned that “Network news has become so partisan, distorted and fake that licenses must be challenged and, if appropriate, revoked,” his own Federal Communications Commission (FCC) chief, Ajit Pai, shot the idea out of the water. Trump may have bristled at being the butt of late-night jokes by asking whether “Republicans (and me) should be given Equal Time on T.V.,” but in fact his very candidacy depended on the old FCC rule being piled up with so many exceptions that any attempt to re-impose such strict enforcement would face insurmountable legal obstacles.

It’s far easier to influence TV news when there are only three networks, who between them broadcast far less than 24 hours of news per day. Which gets to another arrow Nixon had in his quiver that Trump could only dream of: Public Interest requirements. Hazlett again:

FCC regulators, while kvetching about network TV’s “vast wasteland,” blockaded a competing medium, cable television, in the ’60s and ’70s. The rationale was that wired networks would “siphon” viewers from over-the-air stations, threatening the latter’s financial viability. That was claimed to endanger the “public interest” in TV news and informational programs, undermining American democracy….

Only when deregulation eliminated such byzantine rules did bountiful entertainment flow. And real informational programming, which had been cynically used as the justification for broadcast protectionism, finally emerged—on unlicensed, unregulated C-SPAN (1, 2, and 3), CNN, Fox News, MSNBC, Comedy Central, and other outlets too numerous to name. Ideological diversity sprouted with no “public interest” rules to smother it.

So one way to address the hypothetical question What if Watergate had happened in our Fox News world? is to say that MSNBC would have flat out incinerated Richard Nixon 24/7. Also, any attempts by White House heavies to lean on the Big Three broadcasters would have been laughed out of the building. Meanwhile, with competition and proliferation loosening up ideological strictures right and left—including the pretense of non-ideological news presentation—there’s at least a chance that newspapers would have been a bit less enthusiastic about preferring Nixon over McGovern. Say maybe closer to the 5:1 ratio enjoyed by Gerald Ford over Jimmy Carter, instead of Nixon’s 13:1.

The details are of course speculative, but the overall frame is hard to dispute: Richard Nixon took material advantage of being the chief regulator in a highly regulated media environment. He famously used cross-ownership rules, which limit newspapers’ ability to own broadcast stations, to apply pressure on the meddlesome Washington Post, a scenario that Trump may be replaying now with his personal lobbying to double the postal rates on Amazon, which shares an owner in common with…the meddlesome Washington Post. But Nixon had a lot more levers like that at his disposal than Trump does.

Faced with a news-baiting president they may well hate more than Nixon, many journalists and commentators are advocating a curious solution: Give the federal government he sits atop more discretionary power over the media business.

Twelve Democratic-caucusing senators, including potential presidential aspirants Bernie Sanders, Elizabeth Warren, and Cory Booker, recently asked the F.C.C. to consider revoking the licenses of the Sinclair Broadcast Group, a conservative local-news purveyor, in the name of the Public Interest.

“Bring back the Fairness Doctrine,” urged former congressman Mel Levine and L.A. civil rights lawyer Joel Bellman in the Sacramento Bee last month. (“There was a time when the FCC’s Fairness Doctrine helped keep its radio and TV licensees responsible, and responsive, to their communities,” they write, ignorantly. Instead, “today we have Fox and Sinclair running news divisions whose ideological bias and indifference to basic journalistic ethics would have once been inconceivable.”)

“Trump continues attacking the media,” complained the Seattle Times editorial board last month. What is to be done? Among other recommendations, they called for “strengthening public-interest standards for broadcasters.” The only way to stop Big Brother, apparently, is to hand him a loaded gun.

Underpinning this perverse set of policy preferences is a persistent sense of anxiety, unsupported by evidence, that the American media diet has somehow become less diverse in our Internet age, thereby producing unhappy political outcomes.

“The undermining of media as a public good and its parallel consolidation helped take us to the election of Donald Trump,” argue Adam Eichen and Frances Moore Lappe, in their 2017 book Daring Democracy: Igniting Power, Meaning and Connection for the America We Want (excerpted two months ago in Salon). An “Anti-Democracy Movement,” the authors maintain, has succeeded to such an extent that “today most of what Americans watch and see is controlled by just a handful of companies—all preoccupied with their shareholders’ wealth, not our society’s health.”

The truth is closer to the opposite. Media has become more, not less, democratized over the past half-century, with the user experience far less “controlled” than in the alleged glory days of the early ’70s. Consumers may not be making the kinds of media choices that journalism defenders prefer, but that’s not a problem for the government to fix.

As Fred Friendly concluded in 1975, echoing a lot of hard-earned liberal truths from that profoundly disillusioning moment, a classic Democratic error of the period was to believe that policy intentions mattered more than effects and that abuse of power was limited just to Richard Nixon.

“It became clear [upon investigation] that the basically well intentioned concept of the fairness doctrine has on occasion been perverted—used for political purposes,” Friendly wrote. The Kennedy administration, he discovered, engaged in “a politically motivated campaign to use the fairness doctrine to harass stations airing right‐wing commentary, an effort inspired and managed by the White House and the Democratic National Committee and financed in large measure with political contributions.” More:

The facts of that effort are startling enough in themselves after the Watergate story, with its generally accepted assumption that dirty tricks in the Nixon White House were unique. But the story of the fairness‐doctrine effort during the 1964 campaign also illuminates—with striking irony—the subtle and fascinating interplay of power politics and regulatory policy. In the Red Lion case, for example, many of the agency bureaucrats, Government lawyers and judges tended to dismiss the broadcasters’ claim that freedom of expression might be “chilled” by court decisions extending Federal regulatory control over the content of radio and television programs—little realizing that at the time, they were granting implicit legal sanction to an unsavory project of political censorship by the Democrats.

Furthermore, this sanction, unwittingly ratified by the highest court in the land, would later embolden the Nixon Administration in its attempts to lean on broadcasters unfriendly to the President.

Some lessons, it would seem, need to be re-learned every generation. Particularly by journalists.

Gina Haspel was formally sworn in yesterday afternoon as the first female director of the CIA. The identity-laden cultural dynamic of “First Woman to Ever X” was severely undercut by Haspel’s troubled history with and relationship to the CIA’s torture of suspected terrorists during the wars in Iraq and Afghanistan and the subsequent destruction of evidence.

It’s awful that anybody involved in the CIA’s torture tactics in any way ended up in charge, but it’s sadly not surprising that President Donald Trump would embrace her (remember, Trump is pro-torture), and it’s also not surprising that the Senate would fall in line behind an “establishment-approved” candidate. I’m glad we had at least another public debate about torture tactics before the vote and swearing in.

Most media coverage attempted to acknowledge that she’s the first female director while not ignoring the controversy. But then there was the Advocate, once the most prominent national magazine serving the LGBT community, blithely going all in on the “YAAAASSSS! SLAY KWEEN!” approach to Haspel’s swearing in. Here’s what the publication tweeted out:

#GinaHaspel has made herstory. https://t.co/34SvD7YDMJ

— The Advocate (@TheAdvocateMag) May 21, 2018

It gets weirder. The post at the Advocate is tagged “women” not “politics.” It contains a short video obviously meant to be shared on social media with images of Haspel and some straightforward text, set to a disco beat for some baffling reason. It vaguely refers to the torture controversy as her “involvement” with the “detention system” used by the CIA under President George W. Bush. And that’s it.

Even weirder, the attached “story” consists of just three sentences. And it’s only the last one that matters: Sen. Tammy Baldwin (D–Wis.), who is an out lesbian, voted against Haspel’s nomination. Baldwin said she was troubled that Haspel would not say that the tactics the CIA used to try to extract information from detainees were immoral and agreed with Sen. John McCain (R–Ariz.) that this was disqualifying behavior.

As a matter of fact, other than this one-sentence mention, there’s no coverage of Baldwin’s opposition to Haspel’s nomination to be found at the Advocate. So the LGBT site weirdly downplayed the opposition of a lesbian senator in order to push the narrative of the history-making female leader.

There was a very interesting reaction that should be heartening for folks who worry that tribal identity is taking the place of principles and ethics. People who follow the Advocate on Twitter are absolutely repulsed by the tweet and the superficial manner in which the magazine covered Haspel’s swearing in:

Yassss! C.I.SLAY Kween! Not a torturer! A torturHER!

— Brandon (@bnowalk) May 21, 2018

For the benefit of non-Twitter users (how I envy you!), there’s a concept of the “ratio”: If people are replying to your tweet in very high numbers, but they aren’t clicking “like” or retweeting your tweet, that probably means they’re mocking you and think your tweet is stupid or offensive.

As I blog this, the tweet from the Advocate has more than 900 tweeted responses, but only 42 retweets (one of which was me) and 95 “likes.” Folks were not happy with the Advocate.

It’s worth recognizing that sometimes the cultural conflict of “principles over principals”—where the identities or affiliations of a person are deemed more important than ethical or moral interests—is reflected more in media coverage than by the actions of a community itself.

TV shows like CSI, Law & Order, and NCIS depict incredible technology for identifying criminals.

In one NCIS scene, a 3D hologram identifies a person’s teeth, precisely matching the killer’s bite to a bite mark on a victim. “A little 3D magic for clarity and I give you—the killer’s incisors!” NCIS character “Abby” announces proudly.

John Stossel loves crazy Abby, but notes that in the real world, court-approved experts reach similar conclusions—without good science to back them up.

Click here for full text, a transcript, and downloadable versions.

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The views expressed in this video are solely those of John Stossel, his independent production company, Stossel Productions, and the people he interviews. The claims and opinions set forth in the video and accompanying text are not necessarily those of Reason.

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Immigration is the most-heated domestic policy topic today. Leave aside questions about whether members of MS-13, a violent gang started in Los Angeles, are “animals” or not and you still have Donald Trump dismissing migrants from “shithole countries”, members of Congress such as Rep. Steve King (R-Iowa) railing against “somebody else’s baby”, and Republicans pushing to reduce legal immigration by 50 percent. Democrats these days are mostly welcoming to “dreamers” but we’re just a few years removed from the policies of Barack Obama, who was arguably the “most anti-immigrant president since Eisenhower” and had no trouble deporting millions of Latinos and raiding workplaces suspected of employing undocumented workers.

Opponents of immigrants and immigration take their cues from President Trump, who opened his campaign for the Republican nomination by denouncing illegals entering from Mexico as nothing less than a criminal horde:

When Mexico sends its people, they’re not sending their best. They’re not sending you. They’re not sending you. They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.

Opponents advance a host of other, sometimes contradictory arguments to make their case. Immigrants, they say, are lazy and soak up massive amounts of welfare even while they are willing to work harder and for less money than natives (a paradox known as “Schrodinger’s Immigrant”). The litany also includes: Immigrants bring down wages, illegals make a joke of the rule of law, newcomers don’t learn English, they vote Democratic, they destroy common culture, they are hotbeds of terrorism and crime, and on and on.

Supporters of current or expanded levels of immigration (I’m one) dutifully rebut all these arguments and more by pointing to relevant data, economic theory, and history. We also underscore American ideals of inclusion and a history of immigrant entrepreneurship, among other things.

Needless to say, the two sides rarely convince one another, or even come to a common understanding of what facts are true and relevant.

Which makes a column appearing in today’s Wall Street Journal all the more interesting. Gerald F. Seib lays out a series of facts that I think everyone can agree on. They provide an excellent starting point for a different discussion about immigration, one that foregrounds the very sort of economic issues that both diehard Trump supporters and proponents of immigration can agree on. Among them:

• Unemployment is at 3.9 percent, the lowest it has been in 17 years.
• “There are 6.6 million job openings in the U.S., which means that, for the first time in history, there are enough openings to provide a job for every unemployed person in the country.”
• Employers all over the country—Seib mentions Maryland crab processors, Alaskan fisheries, farmers in the heartland, and New Hampshire restaurants—”all say they are critically short of workers.”
• The relatively few slots for annual H-1B and H-2B visas (for skilled and unskilled workers, respectively) have been filled at record paces this year already.
• “The [National Federation of Independent Business] says that 22% of small-business owners say finding qualified workers is their single most important business problem, more than those who cite taxes or regulations.”

That’s a portrait of an economy that is stuck in second gear, unable to expand to meet increasing demand and grow. Given the general listlessness of the American economy for virtually the entirety of the 21st century, in which annual economic growth has averaged under 2 percent (compared to about 3 percent from 1950 to 2000), we may not be immediately capable of recognizing the opportunity in front of us.

The long-term prospects for a healthy economy face real problems, reports Seib, including:

• “The fertility rate for women aged 15 to 44 was 60.2 births per 1,000 women, the lowest since the government began tracking that rate more than a century ago.”
• Over the next three decades, the percentage of Americans over the age of 65 will become larger than the percentage under the age of 18, “a historic crossing of demographic lines.”

Other sources underscore that immigration and births to immigrants, who tend to have more children than native-born women, are the only reasons why America’s population is growing slightly. Unless it is supplemented by immigration, the decline in birth rates will disastrously sink the labor market in years to come. To get a sense of what happens when a country ages dramatically and doesn’t replenish its population with younger residents, look to ultra-restrictionist Japan, which is the prime example of a First World “demographic disaster.” Japan, which has fewer people than it did in 2000, is suffering a slow-motion economic collapse characterized by weak-to-nonexistent economic growth and an erosion of quality of life. As The Weekly Standard‘s Jonathan V. Last wrote in What to Expect When No One’s Expecting: America’s Coming Demographic Disaster, Japan’s “continuously falling birthrates” has given rise to “a subculture that dresses dogs like babies and pushes them around in carriages, and a booming market in hyper-realistic-looking robot babies.” No major developed country, he cautions, has managed to consistently grow economically with a shrinking population.

As a hardcore, principled libertarian, I’ll defend anyone’s right to dress dogs however they want and buy whatever sorts of robots the market can produce, but I don’t think today’s Japan is anybody’s vision of making America great again.

The Journal‘s Seib concludes that “there is a good case that America’s economy—growing and thriving—has never needed immigrant labor more than it does now.” Yet the congressional reaction to the current situation is to crack down on illegal immigration, especially through intrusive employer sanctions. Hardliners are also calling for reductions in legal immigration. Instead of giving DACA dreamers permanent legal status, they want to give them three-year renewable grants. When it comes to conventional immigration, they want to reduce current totals by “by 260,000 slots a year, or 25%. The libertarian Cato Institute, which is generally pro-immigration, says the reduction actually would be closer to 40%’ which would be ‘the largest policy-driven reduction in legal immigration since the awful, racially motivated acts of the 1920s.'”

Immigration is more complicated than economics, of course, but Seib’s cautious and fact-rich piece may provide a model for a meaningful conversation between pro-immigration forces and restrictionists. If the latter want to make America great, they surely recognize that this is something that we can’t do on our own. Underscoring the central role that immigrants play in a flourishing, growing economy while figuring out how to assuage the fears of immigration opponents—many of whom surely recall a parent or grandparent who was born elsewhere but died a “real” American—won’t be easy, but it is necessary.

At a time when partisanship rules everything, occupational licensing reform has been a remarkably bipartisan project.

One of the few areas of policy agreement between the Obama and Trump administrations—at least outside of foreign policy—has been support for cutting unnecessary regulations that keep Americans from working. The two biggest licensing reform bills passed by states this year, in Louisiana and Nebraska, were both supported by lawmakers from both parties and by respective Govs. John Bel Edwards, a Democrat, and Pete Ricketts, a Republican. Organizations across the ideological spectrum agree that licensing reforms would boost workers and the economy as a whole.

Someone forgot to give California the message.

A party-line vote in a California legislative committee derailed a promising licensing bill proposed by state Assemblyman Kevin Kiley (R-Rocklin). The bill would not have made any immediate changes to California’s licensing laws; it merely would have created a petition process to allow individuals to ask a board to review and rescind its own regulations—with an eye towards reducing lawsuits challenging particularly onerous rules.

Additionally, the bill would have prohibited licensing boards from denying a license solely because an applicant had unpaid student loans or a criminal record.

But even those relatively mild reforms were deemed too dangerous by Golden State Democrats, who uniformly opposed the measure.

Those Democrats were backed by the special interests that benefit from keeping barriers to employment high.

“Opponents claimed it threatened public safety,” writes Anastasia Boden, an attorney with the Pacific Legal Foundation, which regularly challenges overly burdensome licensing laws. But, she explains in The Hill, the bill “did not seek to subvert public safety to other objectives, it sought to elevate public safety over protectionism.”

California workers are subject to some of the nation’s most difficult licensing laws, according to a 2017 report by the Institute for Justice, a libertarian law firm. While rules vary from profession to profession, it takes an average of 820 days of training and more than $480 in fees to qualify for a license in the state.

On the upper end of that scale, some rules are true head-scratchers. Getting licensed to shampoo hair in California, for example, requires 1,500 hours of training. Assuming that someone trains eight hours per day for five days per week, that means they would need 37 weeks of schooling before being legally allowed to wash hair for money. Meanwhile, becoming a licensed emergency medical technician requires only 360 hours of training, according to the IJ report.

Riley’s bill would have shifted the ground under California’s licensing boards and required that they provide more than a “rational basis” for a rule restricting worker freedom. That is, they would have had to come up with a legal defense that amounts to more than “because we say so” if faced with a legal challenge of a given licensing law.

The change would have “placed the burden on the agency to prove that its law is related to public safety instead of cronyism,” says Boden.

That’s something Democrats and Republicans are backing in other states. It’s a shame that California will miss out this year.