Our Besieged Rule of Law

The New York Times reports that the president's legal team is arguing in legal briefs that all criminal inquiries into a sitting president are unconstitutional. The NYT writes:

“Lawyers for President Trump argued in a lawsuit filed on Thursday that he could not be criminally investigated while in office, as they sought to block a subpoena from state prosecutors in Manhattan demanding eight years of his tax returns. 

Taking a broad position that the lawyers acknowledged had not been tested, the president’s legal team argued in the complaint that the Constitution effectively makes sitting presidents immune from all criminal inquiries until they leave the White House.

The lawsuit filed on Thursday was the latest effort by the president and his legal team to stymie multiple attempts to obtain copies of his tax returns, which Mr. Trump said during the 2016 campaign that he would make public but has since refused to disclose.”

The president is arguing that both criminal charges and investigations against a president are unconstitutional. That makes a sitting president above the law. This is another step toward tyranny and corruption.

The president has declared his admiration for Vladimir Putin, Rodrigo Duterte, Kim Jong Un, Mohamad bin Salman, and Xi Jinping all and and expressed his jealousy at their dictatorial power. All are murderers and brutal dictators who demand respect, obedience, loyalty. They all want their followers and citizens to believe and do anything they are told. The president admires all of these dictators, once commenting:

“He’s [Kim Jong Un] the head of a country and I mean he is the strong head. Don’t let anyone think anything different. He speaks and his people sit up at attention. I want my people to do the same.”

Good Lies vs Bad Lies: A Fuzzy Gray Zone

Readers here may have noticed a recent uptick in content here that focuses on some aspect of morality, mostly as applied to politics. That is inspired by a growing personal belief that politics is significantly driven by moral beliefs and judgments. This discussion focuses on good vs bad lies-deceit in politics.

Good vs Bad Lies

There are times when politicians lie to the public. Essentially all, if not all, do this from time to time. Motivations range from honestly wanting to serve the public interest to honestly wanting to serve self-interest, even if it betrays or harms the public interest. One commentator wrote this in 2016 shortly before the election:

“You just have to sort of figure out how to — getting back to that word, ‘balance’ — how to balance the public and the private efforts that are necessary to be successful, politically, and that’s not just a comment about today,” she said [Hillary Clinton in a 2013 speech]. She added: “Politics is like sausage being made. It is unsavory, and it always has been that way, but we usually end up where we need to be. But if everybody’s watching all of the back-room discussions and the deals, then people get a little nervous, to say the least. So you need both a public and a private position.”

In politics, hypocrisy and doublespeak are tools. They can be used nefariously, illegally or for personal gain, as when President Richard M. Nixon denied Watergate complicity, but they can also be used for legitimate public purposes, such as trying to prevent a civil war, as in Lincoln’s case, or trying to protect American prestige and security, as when President Dwight D. Eisenhower denied that the Soviet Union had shot down a United States spy plane.

During his 2008 campaign, Barack Obama promised to televise negotiations over health care reform, but when the real work had to be done, the negotiators shut the doors. In a study of defense bills in Congress, the political scientist Colleen J. Shogan quotes a former Senate Armed Services Committee staff director as saying: “Why should we do it in the open? It would wreck the seriousness of the purpose. Staff needs to give candid views to senators, and you can’t do that in open session. Governing in the sunshine shouldn’t be applied to everything.”

Is it hypocritical to take one line in private, then adjust or deny it in public? Of course. But maintaining separate public and private faces is something we all do every day. We tell annoying relatives we enjoyed their visits, thank inept waiters for rotten service, and agree with bosses who we know are wrong.

The Japanese, whose political culture is less idealistic than our own, have a vocabulary for socially constructive lying. “Honne” (from “true sound”) is what we really believe. “Tatemae” (from “facade”) is what we aver in public. Using honne when tatemae is called for is considered not bravely honest but rude and antisocial, and rightly so. Unnecessary and excessive directness hurts feelings, foments conflict and complicates coexistence.

If one accepts those comments as basically true, government cannot operate under full transparency. The question is whether things can be more transparent than now, and the answer is yes. Often much of what is hidden is to shield the actors from bad publicity, not to serve the public interest.

Another commentator points out instances where a politician lies to deceive an uninformed public:

Political leaders often conceal their true views when the latter diverge from majority public opinion, or from the beliefs of a key part of their base. Both Barack Obama and Dick Cheney spent years concealing their then-unpopular support for same-sex marriage – only coming out of the closet when the political winds changed. Well-informed observers knew that their true views differed from their public positions long before Obama and Cheney openly admitted it. But they nonetheless kept up the pretense because it did effectively fool some substantial number of less knowledgeable voters.

Widespread voter ignorance also incentivizes another common type of political deception: lying about the nature of your policies in order to overstate benefits and conceal possible downsides. The most impressively successful recent deception of this type was Barack Obama’s promise that, under the Affordable Care Act, “if you like your health care plan, you can keep it.”

In view of the foregoing, it is inevitable that there are times when it makes sense to lie to the public or to be opaque and hide truth. The problem is that there are many times when service to the public interest is not the motivating force. As discussed here yesterday, the politicians and bureaucrats involved in neutering DEA drug enforcement efforts in 2016 to deal with the opioid epidemic clearly served the drug companies and the politicians who received benefits, while clearly harming the public interest and allowing many more people to die from drug overdoses. Everyone involved is doing what they can to hide what they did from the public.

Sometimes the line between a ‘good lie’ and a bad one is hard to know. It can be more of a gray zone than a line. Sometimes there simply isn’t enough information available to the public to make a reasonably informed assessment. In those situations, there is no choice but to trust the morality of public servants and the people they interact with. If one accepts that logic, then one could argue that immoral lying, immoral deceit and unwarranted opacity by public servants is usually more morally reprehensible than when it comes from most private sector actors.

A Bit of Cognitive Science Snuck into a Journalist’s Mind

I look for signs that journalists are looking to cognitive and social science as a way to help them communicate. Occasionally, some of that seems to be happening. In an opinion piece for the Washington Post, columnist Dana Milbank makes an important point about the word “racist” based on cognitive science research. He writes:

President Trump is a horrendous racist. And it’s time for Democrats to stop calling him one. 

Counterintuitive? Yes. But substantial evidence shows that labeling Trump “racist” backfires against Democrats. It energizes his supporters without providing any additional motivation to Democrats, and it drives soft partisans — voters who could be up for grabs in 2020 — into Trump’s arms.

This doesn’t mean letting Trump off the hook for being the racist he obviously is; I’ve been using the term for four years because it objectively describes him. But this means talking about his racism in a different way:

Say that he tears America apart by race and threatens our democracy.

Say that he pits Americans against each other by color and religion to distract from his cruelty.

Say that he enables and encourages white supremacists.

Milbank points to social science research showing that the term ‘racist’ has become politicized. Research during the 2016 campaign found that voters with high levels of racial resentment who read a statement saying that some people oppose Trump “because he supports racism,” became much more supportive of Trump. By contrast, researchers found that the term “white supremacist” didn’t backfire the way “racist” does. Other research that Milbank points to found that Republicans are two to three times more likely to reject the label “racist” for racially charged attitudes than Democrats and most independents. Thus, calling Trump a racist tends to anger some or many whites who are racially resentful. They double down on their support for him. Americans do not agree on what is racist and what isn’t.

The Morality of American Capitalism in Action

The New York Times reports that the the New York attorney general’s office tracked about $1 billion in offshore wire transfers by the Sackler family, owners of Purdue Pharma and the opioid epidemic. As usual for rich people, Swiss bank accounts are part of the story. The money transfers are Sackler family’s attempt to hide assets in advance of lawsuits against them for opioid epidemic. They don't want to pay any more than they have to. From 2008 through 2016, the Sacklers paid themselves over $4 billion, so they have a lot more wire transferring to do to hide it all.

It gets much worse

Meanwhile, the Washington Post is reporting that drug companies got together to sabotage federal drug enforcement efforts in 2016. They formed a group that successfully blunted DEA enforcement efforts at the height of the opioid epidemic. Members of the group included corrupt politicians in congress and Obama administration officials. WaPo writes:

“In 2016, the drug companies convinced members of Congress and Obama administration officials to rein in the DEA and force the agency to treat them as “partners” in efforts to solve the crisis. The crowning achievement of the companies was a piece of legislation known as the “Marino bill,” named after its original sponsor, which curbed the DEA’s ability to immediately suspend the operations of drug companies that failed to follow the law. ..... But the full story has never been told because so few of the people involved will talk about it. The list of people who have declined to be interviewed includes former congressman Tom Marino (R-Pa.), who first proposed the bill; former acting DEA administrator Chuck Rosenberg, whose agency surrendered to the pressure; former attorney general Loretta E. Lynch, whose department did not stand in the way of the legislation; and, finally, then-President Barack Obama, who signed it into law.”

One can reasonably presume that an awful lot of free speech (campaign contributions) went into that patriotic effort to vindicate the valiant revenue streams the speech was defending.

What about a social conscience for businesses?

As discussed recently here, and here, the moral code that many or most US companies operate under is ‘profit first’. That may also be the moral code that most politicians operate under. According to the code, anything that reduces profits, e.g., spending for a social conscience, is immoral. As the modern leader of the moral code once said, CEOs with a social conscience are “highly subversive to the capitalist system.” No one wants to be highly subversive to the capitalist system, right?

Opacity, especially the plausible deniability brand, is a wonderful thing. It helps shield all the bad acts of deceivers, emotional manipulators, tyrants, demagogues, crooks and liars.

And, it is not the case that such a moral code cannot exist under socialism, fascism, tyranny, anarchy, libertarianism, etc. There just seems to be something irresistibly seductive about profit and to hell with everything and everyone else. Maybe it's a tragedy of the commons sort of thing.

In view of how the profit first moral code usually seems to work, one can argue that corollary moral values often include some combination of contempt for inconvenient facts and truths, opacity is good, transparency is bad, and/or, unwarranted emotional manipulation to keep the masses fearful, angry and above all, distracted.

Does this, or some variant of it, also apply to voting democratic?

Or, is this assessment of the profit first moral code inaccurate, too harsh or unfair?

Ideological Asymmetry in Moral Approval of Lying in Politics

Researchers publishing in the journal, Personality and Individual Differences (Volume 143, 1 June 2019, Pages 165-169), report finding a difference in acceptance of lying between individuals that score high on a particular personality trait and those who score low. The research investigated the relationship between ideology and moral disapproval of spreading misinformation by politicians.

The researchers found that people having higher scores on Right-Wing Authoritarianism (RWA) and Social Dominance Orientation (SDO) were positively related to tolerance of politicians lying by commission, paltering (using truthful facts to create a false impression), and lying by omission (hiding facts or truth). The researchers wrote:

“Also, republicans were more tolerant towards politicians lying by commission and paltering than democrats. Experiment 2 (N = 395) replicated these results, and examined partisan bias. Democrats (but not republicans) showed a partisan bias in tolerance of lying by commission, whereas republicans (but not democrats) showed a partisan bias in tolerance of paltering. In both experiments, RWA and SDO mediated the relationships between political party and approval of spreading misinformation. These results suggest that right-wing individuals are more tolerant to the spreading of misinformation by politicians, although it should be noted that overall levels of approval were relatively low.”

What is interesting is the data showing that levels of tolerance toward misinformation are “relatively low.” If one accepts data showing that the president has made over 10,000 false or misleading statements is true, then most of his supporters disapprove of misinformation and lies but still support the president. If that is true, then many, maybe most, of supporters do not believe the president lies and misleads nearly as often as he doe, and/or they are unaware of unbiased assessments of the evidence as usually or always fact-based.

The other interesting observation is that the data suggests that authoritarian mindsets are somewhat more accepting of misinformation from their own side, but presumably not from political opposition. It may be the case that for hard core partisans, pundits and political players, this personality trait could be more pronounced and acceptance of lies is even greater than the subjects in the experiments described here. That would be an interesting experiment, assuming it is possible to do.

As is usual for most new social science research, these results need to be replicated to at least partly confirm their validity.

The Morality of Capitalism

A discussion here a couple of weeks ago focused on a joint statement signed by over 180 CEOs, Statement on the Purpose of a Corporation, of major US companies about what social responsibilities, if any, that companies have toward anything other than making profit for owners. The guiding moral principle, articulated by economist Milton Friedman, had been anything that needlessly reduces profits is immoral. Thus, it would be moral for a company to donate money to a charity if it helped build public goodwill, thereby increasing profit. But, donating and not getting a profit would be immoral.

Friedman published an essay in 1970, The Social Responsibility of Business Is to Increase Its Profits," argued that the best type of CEO was not one with an enlightened social conscience. CEOs with an enlightened social conscience were considered to be “highly subversive to the capitalist system,” at least in Friedman’s opinion.

An essay in the Economist magazine, What companies are for, comments on the joint statement. The essay argues it probably arose in part as a means to begin a defense against rising public sentiment that corporations should have some responsibility to society, the environment, business suppliers and workers. One source of concern is the rise of younger workers who feel that the businesses they work for should have a broader responsibility.

Also, democratic proposals for a broader corporate social conscience include a plan that would require U.S. corporations to turn over part of their board of directors to members chosen by employees and prohibiting corporations from buying back their own stock unless they offer a certain level of pay and benefits for workers. Another proposal is to require federal chartering of companies and revocation of their licenses if they unreasonably abuse the interests of staff, customers or communities. Such proposals would underpin a system where business determines and pursues social goals and not just narrow self-interest. Presumably, most corporations do not want that kind of regulation.

The Economist opposes efforts to impose a broader social conscience because it would risk “entrenching a class of unaccountable ceos who lack legitimacy,” arguing that would be a threat to long-term prosperity. The essay points out that some companies now endorse social causes popular with staff and customers or deploying capital for reasons other than efficiency, citing Microsoft financing $500 million for housing in Seattle. The Economist argues that such a broader social conscience creates two problems: a lack of accountability for the business elites who make decisions and a “lack of dynamism.” The essay asserts that “ordinary people would not have  a choice” in where resources are deployed. The implication is that special interests, politicians and business elites would corrupt the effort in the name of self-interest. To inject more citizen power into social conscience, the Economist proposes

The other problem, lack of dynamism, would arise from an alleged tendency of collective capitalism to not change. As evidence, the essay cited abuse of customers and poor quality products by AT&T and General Motors in the 1960s as being shielded in part by various claims of social benefit, e.g., jobs for life.

Not persuasive or realistic

The Economist’s libertarian arguments are not persuasive. Business elites already are not accountable. For example, no executive was prosecuted for any financial crime after the 2007-2009 financial crisis. American citizens already have no influence over policy, so that situation cannot get any worse. If it is true that collective capitalism turns out to dampen dynamism, then competitors will impose dynamism or the business will go away. The essay admits that businesses with a social conscience will continue to maximize profits. If laws are passed that impose a social conscience, the playing field will be leveled and no one will be allowed to play self-serving games shielded by false assertions of social conscience.

Finally, the essay argues that corporate accountability will be enhanced by broadening ownership so that more Americans own stocks by tinkering with the tax code. The essay admits that stock market power is heavily skewed toward rich people, so changing the tax code to expand the numbers of small investors will make no difference. In essence, the Economist raises concerns over the rise of problems that already exist and proposes solutions that will make little, if any, significant difference.

For the most part, most corporations will continue to have as little social conscience as they can for as long as they can. The major owners, not small shareholders, have power and they will fight to keep social conscience from damaging their investment. The only way to grow social conscience is to impose it by law. Corporations are already building their defenses to fight off social conscience. The the Statement on the Purpose of a Corporation is an early step in the defense against social conscience. The next steps? Most likely, the most obvious ones: bring on the campaign contributions and call out the lobbyists.