The Washington Post - 05.11.2019

TUESDAY, NOVEMBER 5 , 2019. THE WASHINGTON POST EZ RE A23

O

n the relationship between freedom, societal norms and law, no one has yet improved upon Judge Learned Hand’s dictum: “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.” Nevertheless, people keep suggesting that government should use its coercive powers to control free expression in the name of social peace. The latest is Richard Stengel, Nelson Mandela’s biographer, a distinguished former managing editor of Time magazine, former chief executive of the National Con- stitution Center and former undersecretary of state for public diplomacy and public affairs. When someone this experienced in politics and journalism joins the cause of laws against hate speech, it’s wise to pay heed, especially since his argument, presented in a Post op-ed last week, does make a serious point. Defenders of America’s free-speech doc- trine — which allows almost anything that doesn’t libel a narrow range of private indi- viduals, directly incite violence or depict the sexual abuse of children — often rely on an analogy between public discourse and com- petitive markets. When competing freely, truthful, beneficial thoughts will prevail over false, pernicious ones. Though deeply rooted in Anglo- American political and legal theory, this “marketplace of ideas” metaphor has never quite corresponded to reality, as Stengel notes. Now social media — where hate and lies spread unchecked, inspiring terrorists of all stripes — has definitively disproved it. The United States should try legal “guardrails,” like those in Germany or France, to bar “hateful speech that can cause violence by one group against another,” according to Stengel. It would be easy — too easy — to reply that European hate-speech laws have hard- ly eliminated intolerance or intergroup violence. To shoot another fish in the bar- rel: The federal government ban on propri- etary trading by banks is about 1,000 pages long, including all the definitions and ex- ceptions. It would be even more difficult to write a legally consistent ban on speech that “deliberately insults people based on religion, race, ethnicity and sexual orienta- tion” — and only on that speech. No doubt citizens struggle to distinguish lies from truth, as indicated by the studies of Internet-using teenagers that Stengel cites. But that is an argument against democracy generally. (Also against lowering the voting age to 16.) Rather, the best response to Stengel is to concede there is market failure in the marketplace of ideas — and to explain why it doesn’t, or shouldn’t, justify calling for laws against hate speech. The question is not whether regulation is needed, in finance or speech. The question is who should do the regulating. Fundamental individual freedoms — what the nation’s founders considered natural rights — are not as strongly implicated in, say, securities trading, as they are in writing, speaking, painting, singing, tweet- ing, marching, flag-waving and, yes, Koran- (or Bible- or flag-) burning. In this sense, the market metaphor, which bases free speech on its consequenc- es, rather than on humankind’s intrinsic right to engage in it, needs reformulation: There should be a strong presumption against using government to fix the idea market’s inevitable failures, as long as there are private-sector alternatives — including not only competing speech, as the marketplace of ideas metaphor implies, but also peer pressure and other informal restraints on expression that people find unacceptable. For all its excesses, even political correct- ness beats governmental enforcement of acceptable discourse. Whether we are better off when everyone reads the “Adventures of Huckleberry Finn,” or shuns that Mark Twain classic because it frequently employs the n-word is not the point. The point is that the only thing worse than “cancel culture” would be “cancel culture” enforced by your state, i.e., the local district attorney, police and jailer. “It is important to remember that our First Amendment doesn’t just protect the good guys; our foremost liberty also protects any bad actors who hide behind it to weaken our society,” Stengel writes — as if the same did not apply to the whole Bill of Rights. The Fourth Amendment protects terrorist hideouts from warrantless search- es; the Fifth lets rapists refuse to confess. This is nothing new. “Bad actors” — domestic and foreign — have been exploit- ing freedom to undermine it since time immemorial. Generally that has been thought of as a reason to redouble commit- ments to civil liberty, thus denying “bad actors” a victory. “The Russians understood that our free press and its reflex toward balance and fairness would enable Moscow to slip its destructive ideas into our media ecosys- tem,” Stengel notes. “When Putin said back in 2014 that there were no Russian troops in Crimea — an outright lie — he knew our media would report it, and we did.” Substitute “Stalin” for “Putin,” plus a few other changes, and you have a paragraph about the Russian lies that caused the New York Times to deny the Ukraine famine during the 1930s. We live in an era of globalized social media and globalized politics, much of it frightening and extreme. Judge Learned Hand’s spirit of liberty can guide us through it, while preserving democracy, social har- mony and the natural right to speak freely. [email protected]

CHARLES LANE

Keep the

state’s hands

off free speech

H

ow can we miss Joe Biden if he won’t go away? It’s beginning to look as if Democrats don’t want him to go away at all. The betting odds, along with many of my fellow pundits, assess Sen. Elizabeth Warren (D-Mass.) to be the likely nominee. So why, then, does Biden continue to hold a substantial lead in the national polls? And why, at the moment, is that lead growing? The clear and simple answer has little to do with the Democratic Party’s pro- gressive-vs.-moderate divide, which is more a theoretical chasm than a practi- cal one. Biden’s staying power has everything to do with President Trump — and the imperative that the incumbent be defeated next November. It now appears overwhelmingly likely that Trump will be impeached by the House and face trial in the Senate. The chance that 20 Republican senators will join with Democrats in voting to remove him from office is not zero — especially if public airing of the evidence against the president weakens his support among the GOP base — but remains, at this point, somewhere between small and minuscule. We have no way of knowing how an incumbent president marked with the stigma of impeachment would fare in a bid for reelection, because such a thing has never happened before. But we’re likely to find out. Hypothetical matchup polls taken over the past month show any of the leading Democratic contenders beating Trump in the general election. But almost all of them have Biden beating him by the biggest margin. A Fox News poll released Sunday, for example, showed Biden leading Trump by 12 points, while Sen. Bernie Sanders (I-Vt.) led him by eight points and Warren led him by five. It follows that the question is how risk-averse Democratic voters will prove to be. As long as Biden looks like the surest bet to beat Trump, he’s going to be hard for any of his rivals to knock off. A set of New York Times polls of likely voters in battleground states, released Monday, offered more good news for the Biden campaign — and bad news for his nearest competitors. They showed Biden beating Trump narrowly in Penn- sylvania, Wisconsin, Florida and Arizo- na, tying him in Michigan and losing by a whisker in North Carolina. In every one of those states, Biden was seen as faring better than Warren or Sanders.

Warren was shown as beating Trump only in Arizona and either losing to him or tying him in the other state match- ups. Numbers such as those may be why Biden continues to lead the Democratic field in the RealClearPolitics national poll average, with 29.1 percent, followed by Warren with 20.6 percent, Sanders with 16.6 percent, and South Bend, Ind., Mayor Pete Buttigieg with 7.1 percent. At this point, everybody else in the race is basically hanging around, waiting for lightning to strike. That is not what anyone would call a commanding lead. But it has been re- markably durable, and I see no reason to doubt it reflects the reality of the con- test. It is true that Biden’s fundraising has been anemic compared with that of Sanders and Warren. If money and pas- sion were dispositive, Biden would al- ready be toast. Yet something else — I believe it’s his numbers against Trump’s — keeps him in front. What, exactly, is going to prompt the Biden collapse that so many knowledge- able observers seem to think is coming? A lousy debate performance? He has survived several of those just fine. Some kind of off-the-wall utterance at a campaign stop? Biden has been a reliable source of flubs and non sequiturs for decades, and his supporters are unboth- ered. Here is another way to look at the race. If all of today’s RealClearPolitics poll averages are borne out — they won’t be, but humor me — Biden would lose to Warren in both Iowa and New Hamp- shire, but then beat her in Nevada and South Carolina. That would set up a showdown on Super Tuesday, March 3, 2020, when 14 states hold their prima- ries, including California, Texas and five Southern states where the African American vote — perhaps Biden’s great- est strength — will be crucial. The necessity of sending this histori- cally bad president home to Trump Tow- er — or now, I guess, Mar-a-Lago — so overshadows the Democratic campaign that voters are commitment-shy. A re- cent poll in Iowa showed that the num- ber of undecided Democrats there in- creased sharply over the summer. I ad- mit that I don’t know what’s going to happen. But anybody who hopes to win has to get past Biden. So far, nobody has. [email protected]

EUGENE ROBINSON

Biden’s staying power is all

about Trump

A

s politics metastasizes through all parts of American life, it seems as though everything must become subordinate to ideology. The latest casualty is kindness. Recently, television talk-show host Ellen DeGeneres — a political progres- sive and noted activist for LGBTQ rights — was captured on video at a Dallas Cowboys football game, yukking it up and obviously having a great time with conservative former president George W. Bush. On social media, all hell pre- dictably broke loose as people — including many high-profile progressives — criticized her for, essentially, consorting with the enemy. In response, she defend- ed their friendship on her talk show. DeGeneres finished with this statement: “When I say, ‘Be kind to one another,’ I don’t mean only the people that think the same way that you do. I mean be kind to everyone.” Some applauded this, saying we need more of these sorts of courageous friendships in our troubled political times. Personally, I didn’t think the friendship was so miraculous; I defy anybody to spend time with our 43rd president and not like him personally. And though I do not know DeGe- neres, I strongly suspect the same could be said about her. Amazingly, however, many de- nounced her statement as foolish, naive and perhaps even dangerous. For a fa- mous activist to place kindness above political outrage neutralizes her effec- tiveness — right? Wrong. DeGeneres is more powerful and effective as a leader precisely because of her kindness. In healing division, she not only improves the world but also is more persuasive to others. Don’t believe it? Let’s look at one typical research finding. In 2015, researchers at Georgetown University and the Grenoble School of Management in France conducted a large-scale workplace study that asked the question: “Being nice may bring you friends, but does it help or harm you in your career?” To find out, they examined the effect of being nice and civil in the workplace on three specific work outcomes: being sought out for advice, being perceived as a leader and job performance. Those who practiced kindness came out ahead in all three categories. And the better performance reviews weren’t just a matter of a supervisor’s percep- tion: The employees actually performed better because they were nice. It turns out that by being nice, employees “increase the likelihood that others seek — and presumably exchange — informa-

tion and advice, which, in turn, increase performance.” But there’s more. The Georgetown- Grenoble researchers also concluded: “Rather than hurting themselves by ap- pearing weak or deferential, behaving respectfully seems to garner influence.

... For leaders and potential leaders,
civility appears to be very valuable — it
elicits warmth, allowing for an initial
connection or relationship to take root;
yet it also signals the ability to lead.”
In other words: Ellen 1, Critics 0.
Former president Barack Obama —
the most successful liberal politician in
modern memory — is clearly of the
DeGeneres school of thought. At the
Oct. 25 funeral of Elijah E. Cummings,
the late Democratic congressman from
Maryland, Obama said: “I tell my
daughters... being a strong man in-
cludes being kind. That there’s nothing
weak about kindness and compassion.”
I met Obama only once, in 2015 for a
public conversation on poverty at
Georgetown University, in front of a
large audience. We disagreed very
strongly on policy — but he was kind
and generous to me.
The Democratic candidates vying for
the presidential nomination might
want to take note of Obama’s words
instead of taking every opportunity to
show contempt for the people and ideas
with which they disagree. Politicians on
both sides should listen, in fact. A Re-
publican member of Congress recently
told me that he feels anguished because,
to stay in office, he often has to be a
person he didn’t admire. He has to say
harsh and unkind things, he said, even
though he wants to be friendly and
tolerant. Activists on his own side, who
would accuse him of being a sellout and
weak, had backed him into a corner.
I understood his conundrum, partic-
ularly in today’s rancorous political en-
vironment. But I reject the premise that
to win, one must be a jerk. There is no
inconsistency between kindness and ef-
fective, winning leadership. This does
not make me an idealist; it just means I
am paying attention to the best social
science.
Is being kind to those with whom we
strongly disagree difficult? Of course it is
— it requires self-control and maturity,
like anything else that is worthwhile. It
requires us to act like the people we want
to be, not the way we feel at any given
moment. It means seeing ourselves in
others and actively practicing gratitude.
But with commitment and repetition,
we can become kinder people, leaders
admired by others and a greater force for
good in a troubled world.

ARTHUR C. BROOKS

Kindness is effective. Just

ask Obama and DeGeneres.

T

he most positive thing you can say about the health-care financing plan from Sen. Elizabeth Warren (D-Mass.) is this: She failed, but she failed in an impossible feat. The feat was getting the math on Sen. Bernie Sanders’s (I-Vt.) specific version of Medicare-for-all to add up. Which means: offering more generous coverage than currently exists anywhere on Earth in a country that likely has the highest health-care prices and still somehow sav- ing the country money in the process. Sanders’s Medicare-for-all plan (like his entire political career) is arguably more about pushing the Democratic Par- ty leftward, not coming up with real, implementable policies — or at least, not doing the homework required to deter- mine if his proposals are real, implementable policies. Yes, Sanders loves to talk about how he “wrote the damn bill” on Medicare-for-all. But he hasn’t even attempted to figure out its financing. That would require him to document his claim that middle-class Americans will come out ahead financial- ly even if their taxes go up. As he told CNBC’s John Harwood recently: “You’re asking me to come up with an exact detailed plan of how every American — how much you’re going to pay more in taxes, how much I’m going to pay. I don’t think I have to do that right now.” Warren, on the other hand, has cast herself as more than a mere Overton- window-expander. She’s not just about professing values but offering specific, serious, in-the-weeds implementation of those values. By golly, she always has “a plan for that.” So she decided to construct a detailed financing plan for... Sanders’s proposal. Why she boxed herself into her rival’s bill is unclear. “Medicare-for-all” is a popular brand, sure, but it’s a vague slogan that means different things to different voters. And polling suggests Sanders’s particular interpretation of that slogan, which includes eliminating private insurance, is not actually a political winner. Plus, as Warren herself persuasively argued back in January, there are “lots of paths” to get to universal health coverage, which is the broad objective voters care about. These paths don’t all require shunting everyone onto single-payer. In fact, there are “lots of paths” to get to single-payer that don’t look like Sanders’s specific version of single-payer. These include con- siderably cheaper proposals that — as in the existing Medicare system — have some modest cost-sharing, such as through income-based premiums. Warren is also a deft communicator and an imaginative, even visionary, policy wonk. (Witness her brainchild, the Consumer Financial Protection Bureau.)

Yet — perhaps to chase the Sanders voters who have made supporting his “damn bill” a purity test — she still decided to hitch her wagon to his idea. So, Warren did Sanders’s homework for him. And she determined that in order to pull off Sanders’s promises, you need to make some extremely generous assumptions. On both sides of the ledger. On the cost side, Warren takes existing, independent estimates for how much money a given proposal would save and then ratchets them up much higher. For instance, the Urban Insti- tute recently estimated that a single- payer system might cut drug costs by 30 percent from commercial prices. Warren instead suggested she’d cut pay- ment rates for branded drugs by more than double that. “We felt we were making pretty opti- mistic, aggressive assumptions,” said Linda Blumberg, a health economist and co-author of the Urban Institute analy- sis. “They’re making more optimis- tic, more aggressive assumptions.” On the revenue-raising side, Warren likewise proposes some ideas that might be good on their own merits, but then dramatically overstates their impact. Increasing the enforcement budget of the Internal Revenue Service, for example, is a no-brainer for raising tax reve- nues. But Warren’s plan says it would raise 40 times as much money as the Con- gressional Budget Office estimates. Likewise, however little sympathy you might have for the billionaires subject to her 6 percent annual wealth tax, the War- ren team’s projections for how much money it’d raise beggar belief, given fore- seeable tax evasion and avoidance. Even- tually she’s going to run out of billionaires to tax, and she’ll have to reach into pock- ets further down the income ladder. When Joe Biden’s campaign accused her of “mathematical gymnastics,” War- ren batted away such criticisms as “Re- publican talking points.” Which is strange, because until recently, I thought it was indeed the Democrats who cared about practicing good math. The peculiar thing is this: If you stripped away the most inflated, least convincing assumptions in Warren’s proposal, it could in fact raise enough money to get us to universal coverage without a single-payer system. Heck, we could even pay for a version of single-payer that looks more like merely expanding the existing Medicare program to all Americans — a proposal the Urban Insti- tute has dubbed “single-payer lite,” and that has income-based cost-sharing and Obamacare-style minimum benefits. Good job, Sen. Warren, in attempting to do Sanders’s homework for him. It showed us what a fool’s errand his plan is. But we’d all be better served if you used your talents to come up with a different assignment. [email protected]

CATHERINE RAMPELL

Medicare-for-all

doesn’t add up

DANIEL ACKER/BLOOMBERG Sen. Elizabeth Warren (D-Mass.) in Des Moines on Friday.

THE PLUM LINE

Excerpted from washingtonpost.com/people/paul-waldman

Trump’s legal odds don’t look so good

When President Trump goes to court these days, he arrives with two problems. First, the fundamental position he takes is usually indefensible. Second, the specific arguments his lawyers are forced to use to justify that position are themselves not just questionable but positively ludicrous. As a consequence, he keeps losing. A federal appeals court ruled that his accounting firm does indeed have to turn over years of his returns to the Manhattan district attorney. The court rejected the president’s claim that he cannot be investigated or prosecuted while in office. In doing so, it upheld a ruling from U.S. District Judge Victor Marrero, who rejected Trump’s claim of immunity as “repugnant to the nation’s fundamental structure and constitutional values.” In case it isn’t clear, Trump’s lawyers argued that if he walked out on the street and shot someone, not only couldn’t he be indicted on a charge of murder, but the police also would not even be allowed to investigate him. A district court and now an appeals court have found that argument to be somewhere between laughable and horrifying, which means Trump has only one shot left to protect his tax returns from falling into the hands of prosecutors and then possibly the public: the Supreme Court.

There’s really no telling what the court will do. While the conservative justices have long adhered to the principle known as “Republican presidents get to do whatever they want,” Trump’s argument for keeping his tax returns hidden — in this case and in others, in which he is keeping them from Congress — are both farcical and extremely specific to him, meaning that they’re unlikely to impact future presidents. If you were Chief Justice John G. Roberts Jr., or one of the other conservative justices, you might decide that this would be a good case to hand Trump a loss, thereby demonstrating that the court can be nonpartisan and bolstering its legitimacy (which it will need when it inevitably nullifies many of the laws the next Democratic president signs). I’m not sure if before taking office Trump was aware of the opinion from the Justice Department’s Office of Legal Counsel concerning presidential immunity from prosecution. But we have to remind ourselves of just how extraordinary it is that the president is claiming not just that he can’t be prosecuted but also that he can’t even be investigated. The presidency brought with it a certain limited immunity, but it also brought more scrutiny than Trump probably ever imagined. To achieve the goal of keeping his tax returns hidden — something that is obviously of paramount importance to him — he’s going to have to win every one of these cases. His odds don’t look good.

The Washington Post - 05.11.2019

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