Neoliberalism coddles bad nursing homes in comforting secrecy

Neoliberalism: a political approach that favors free-market capitalism, deregulation, and reduction in government spending; neoliberalism is a political development of capitalism and a political and economic ideology that seeks to (i) maximize the freedom of the market by removing barriers to the private accumulation of wealth, and (ii) become a power over and above the state directed to the ends of profit without government interference; neoliberalism opposes regulation over which it has no control; the controlling ethic of capitalism is prudence which leads to wealth, but the ethic of neoliberalism is the accumulation of wealth for its own sake which leads to political power; neoliberalism, as the de facto only available political and economic option has had catastrophic effects on society and the environment 

The effects of the neoliberal influence on the Democratic and Republican Parties is usually manifest as deregulation of commerce and wealth with a concomitant flow of power from government and its ability to protect and serve public interests. Power flows to special interests and owners of wealth who gain advantage and use it over the public and public interests to their own benefit. Secrecy is a necessary and major aid in the power shift. Special interests and neoliberal politicians deny that this power shift happens, but they are liars. As we all know, an ignorant public is more compliant and profitable than an informed public. --- Germaine, 2021

Politicians love opacity and secrecy. So do lobbyists. So do courts. Businesses too. Obviously, fine citizens like tax cheats, embezzlers and drug dealers really like lots of secrecy. Everyone with things to hide loves secrecy. That runs the gamut from hiding merely embarrassing boo-boos to hiding shockingly illegal, cruel and/or lethal activities. That is why non-disclosure agreements are the norm in many or most businesses. That is why many or most consumer products and services come with a demand that disputes be settled by arbitration in secret. That is why most major lawsuits that settle before a court decides a case in public are settlements that demand secrecy of the terms. Usually the defendant demands secrecy from the plaintiff.

And it's always the same game: Those with power demand secrecy. Those without power, like the public interest and consumers, are forced to accept secrecy to the advantage of those with power over them. That is how neoliberalism works for people and interests in power, usually (always?) to the detriment of the public and its interest.

All that wonderful neoliberal secrecy allows the crooks, liars, and thugs an opportunity to downplay and lie about what they did, how bad it was and exactly who was responsible. The stench of plausible deniability for the bad guys is overpowering. The public is left free to decide what, if anything it wants to believe. Facts just cannot get in the way of forming false beliefs based on lies because the public remains ignorant of the truth. 

A New York Times article, How Nursing Homes’ Worst Offenses Are Hidden From the Public, provides a wonderful example of of what neoliberal government often produces. The NYT writes:

In Arizona, a nursing home resident was sexually assaulted in the dining room.

In Minnesota, a woman caught Covid-19 after workers moved a coughing resident into her room.

And in Texas, a woman with dementia was found in her nursing home’s parking lot, lying in a pool of blood.

State inspectors determined that all three homes had endangered residents and violated federal regulations. Yet the federal government didn’t report the incidents to the public or factor them into its influential ratings system. The homes kept their glowing grades.

A New York Times investigation found that at least 2,700 similarly dangerous incidents were also not factored into the rating system run by the federal Centers for Medicare and Medicaid Services, or C.M.S., which is designed to give people reliable information to evaluate the safety and quality of thousands of nursing homes.

Many of the incidents were uncovered by state inspectors and verified by their supervisors, but quashed during a secretive appeals process, according to a review of thousands of pages of inspection reports and nursing home appeals, which The Times obtained via public-records requests. Others were omitted from the C.M.S. ratings website because of what regulators describe as a technical glitch.

The Times this year has documented a series of problems with Medicare’s ratings system. Much of the data that powers the system is wrong and often makes nursing homes seem cleaner and safer than they are. The rating system also obscures how many residents are receiving powerful antipsychotic drugs.

On the rare occasions when inspectors issue severe citations, nursing homes can fight them through an appeals process that operates almost entirely in secret. If nursing homes don’t get the desired outcome via the informal review, they can appeal to a special federal court inside the executive branch. That process, too, is hidden from the public.

Even when the citations are upheld by this federal court, some never make their way onto the Medicare website, known as Care Compare. In November, for example, the court sustained a major punishment against Life Care Center of Kirkland, Wash. — the nursing home that faced the first coronavirus outbreak in the United States — yet the citation is absent from the Medicare site. The facility has a five-star rating.

The pattern gives nursing homes a powerful incentive to pursue every available appeal. Even if they lose, the process eats up time and reduces the odds of damaging information ever becoming public.

“There is every advantage to the facility not to have an opinion issued for as long as they could possibly delay, and there’s no advantage to the public for that to occur,” said Richard Routman, a lawyer who represented the federal government in nursing home appeals until 2014.

“Once I realized that people wouldn’t see cases that are on appeal, I thought, why would anybody ever look at this again?”  

Representatives of the nursing home industry say it is only fair that they be allowed to appeal citations before they are made public, especially since many end up getting overturned or downgraded. But The Times found that the appeals process can be one-sided, excluding patients and their families.  

There’s big money at stake. Because of the weight that people place on the star ratings, researchers have found a connection between better inspection results and greater profits. The Times analyzed nursing homes’ financial statements from 2019 and found that four- and five-star facilities were much more profitable than lower-rated facilities. (For-profit companies own about 70 percent of all U.S. nursing homes.) 

For decades, federal watchdog agencies have criticized state inspectors for taking a light touch with the nursing homes they oversee.  

Inspectors rarely deem problems to be serious enough to harm homes’ star ratings. From 2017 to 2019, The Times found, inspectors wrote up more than 2,000 five-star facilities at least once for not following basic infection-control precautions, like having employees regularly wash their hands.

At 40 other five-star homes, inspectors determined that sexual abuse did not constitute actual harm or put residents in immediate jeopardy.  

“I feel sometimes the things I cite don’t mean anything because it gets tossed out at the state level or they determine it not to be as severe,” an unnamed inspector said in a 2013 survey conducted by the Center for Medicare Advocacy, a consumer rights group. “Sometimes it makes you wonder why we spin our wheels on a problem.”

One can clearly see the influence and power of economic incentives to do bad things when they are shrouded in secrecy. If the public never hears about bad things and no significant penalties attach, the bad stuff effectively did not happen. There is every reason to keep doing bad things that help make money, even if people are harmed or killed in the process. Power and wealth are the only moral values inherent in neoliberalism. Human and environmental destruction and death are not major factors in the profit equation unless government steps in and gives those those things major weight.

Ranking existential threats

Unwarranted secrecy and neoliberalism arguably are existential threats to liberal democracy, the rule of law, modern civilization via wealth inequality and maybe even the existence of the human species on Earth. Unwarranted secrecy is necessary for subversion of democracy and the rule of law. 

A ranking of threats to global democracy and the rule of law should help at least some to put this in context.

1. Nuclear war

2. Corruption and subversion of government by special interests

3. Unwarranted secrecy

4. Dark free speech and social media disinformation

5. Political polarization

6. Authoritarianism, neoliberalism and Christian theocracy

7. Wealth inequality (an aspect of American authoritarianism, neoliberalism and Christian theocracy)

8. Environmental damage (also an aspect)

9. Weak public education

10. Overpopulation

 

There is overlap among at least some of these things. Note that unwarranted secrecy is usually a major component of corruption and subversion of government by special interests, dark free speech and political polarization. This ranking just intended to give a general idea of how secrecy might fit into an existential threat assessment. Opinions on this will vary. For example, some or most conservatives might put the BML movement, critical race theory, the Democratic party and/or socialism/communism on the top 10 list of threats.

Questions: 

1. Why does the government allow secrecy to protect nursing homes, neoliberalism, fairness to nursing homes, and/or something else, or is secrecy not a significant factor here?

2. Is it more likely than not that unwarranted secrecy is a significant existential threat to democracy and the rule of law?

How an anti-abortion advocate sees the current Supreme Court and life after legalized abortion

It is good to consider various good faith points of view. Crackpottery doesn’t deserve much if any serious consideration, other than as a means to assess how deranged some people are. 

Considering other points of view, asserted facts and reasoning provides some understanding of why and how people think and draw their conclusions. A New York Times editorial by Erika Bachiochi, a conservative legal scholar, a fellow at the Ethics and Public Policy Center and a senior fellow at the Abigail Adams Institute is staunchly anti-abortion. She has argued that Roe v. Wade should be overturned. She takes comfort in what the the current Supreme Court is likely about to do to abortion rights.

Ms. Bachiochi writes:

.... over the past two presidential election cycles, I felt a strong sense of relief that I was free from the hard trade-offs of voters in battleground states and could just cast my vote for a write-in candidate.

Yet listening to oral arguments in Dobbs v. Jackson Women’s Health Organization last week, I realized more clearly than before how grateful I am to those pro-lifers who did what I did not, would not, could not: cast a vote for Donald Trump.

Politics is an art of prudence, and what I regarded as a deal with the devil they took to be a prudential act to achieve an essential end. For ending the abortion regime must be the keystone of standing against the individualistic libertarianism that characterizes our politics, left and right — and privileges the powerful over the weak and dependent. Ironically, and perhaps accidentally and certainly boorishly, Mr. Trump may have brought about what others could not.

While oral arguments are no perfect indicator of how the court will vote, Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, all appointed by Mr. Trump, seem ready to join Justices Clarence Thomas and Samuel Alito (and perhaps Chief Justice John Roberts) in sending the issue of abortion back to the people to resolve. While Justice Kavanaugh homed in on the Mississippi solicitor general’s argument that the Constitution is neutral on abortion, Justices Gorsuch and Barrett (as well as Chief Justice Roberts) worked to discern if there was any way to uphold the moderate Mississippi ban without striking down both Roe and Planned Parenthood v. Casey. (Both sides agree: There is not.)

If Roe goes, the pro-life movement can begin where it left off in 1973, working to convince fellow citizens (especially in blue states like mine) that we owe dependent and vulnerable unborn children what every human being is due: hospitality, respect and care.

But it’s not only that. Mr. Trump’s economic populism (at least in rhetoric) blasted through the libertarianism that has tended to dominate the Republican Party, a libertarianism that has made its alliance with pro-lifers one of strange bedfellows indeed. If the Republican Party wants to be of any relevance in a post-Roe world — after all, with Roe gone, those single-issue voters will be free to look elsewhere — it will have to offer the country the matrix of ethnic diversity and economic solidarity that Mr. Trump stumbled upon, but without the divisiveness of the man himself.

So what is the path ahead that he has now likely made possible? A post-Roe America will need to move beyond its wrongheaded obsession with autonomy. It will need to align both its rhetoric and its policies better with the realities of human existence and so should work to bring forth a renewed solidarity instead. We humans are not best understood as rights-bearing bundles of desires who progress through life by the sheer force of our autonomous wills. We are beings who are deeply dependent on one another for every good in life — first and foremost for our very existence, as we did not come to be by an act of our own will.

The Democrats were once a closer fit for the solidaristic vision, which is why before Roe, pro-lifers once happily made their home in the Democratic Party. Franklin D. Roosevelt’s party was one that long sought to put the culturally essential caregiving, character-shaping work of the home at the very center of the economy, ensuring that families enjoyed economic security while they did that most important work. Democrats once sought a family wage and saw the importance, as the Progressive-era feminist reformer Jane Addams put it, of the “family claim over the social claim.”

But today’s Democratic Party — though rightly intent to provide robust economic support to struggling families — seems also intent to contract out the nurturing of infants and toddlers to “caregivers” rather than attempt to ensure, as their predecessors did, the kind of economic security that enabled (especially) mothers to care for their young children themselves.

Support for the abortion license over the past half century helped transform the Democrats from the party of the family wage to the party of academic, technocratic and corporate elites. The abortion regime has been deeply complicit in preserving a modern economy built not around the needs of families but on the back of the unencumbered worker who is beholden to no one but her boss.

Individual and societal reliance on abortion for women’s participation in economic and social life was the linchpin of the Supreme Court’s decision to reaffirm Roe in its 1992 decision Planned Parenthood v. Casey. As such, it was perhaps the strongest argument in the abortion-rights lawyers’ arsenal at the Dobbs oral arguments. But as even Planned Parenthood’s Alan Guttmacher foresaw in a 1968 speech, reliance on abortion as a backup to contraception tends to discourage contraceptive use and otherwise increase sexual risk taking, with women, not men, left to manage the asymmetrical risks.

Meanwhile, Casey’s claim that society has relied on abortion for women’s progress at once discounts the legion of anti-discrimination laws passed over the past century — while capitulating to the demands of an increasingly hegemonic market. After all, easy access to abortion (not to mention egg freezing and other technopharmacological interventions) helps businesses ensure that women are readily available to meet the all-encompassing needs of the globalized marketplace, thereby delaying real accommodations for time-consuming (and sometimes unexpected) parenting, especially for those women at the lowest socioeconomic levels in our society.

Such abortion-for-equality arguments are a far cry from the revolutionary vision Betty Friedan and Pauli Murray enunciated in the original statement of purpose for the National Organization for Women in 1966. Therein, one finds not calls for abortion on demand (or abortion at all) but instead for the country to “innovate new social institutions which will enable women to enjoy the true equality of opportunity and responsibility in society, without conflict with their responsibilities as mothers.” The statement urged not only robust anti-discrimination law, which would come to pass, but also better recognition of the “economic and social value of homemaking and child care,” which would not.

If the Supreme Court overturns Roe, the pro-life movement will need to redouble the efforts of pro-lifers on the ground who for a half century have offered support, assistance and care to pregnant women and their children, both born and unborn. And crucially, it should call men to task.

But it can also take its rightful place in the post-Trump Republican Party — if the party, especially in red and purple states, can prove itself capable of policymaking on behalf of workers and their families. This will require that Republicans not fall back to doing the bidding of the business class whose own daughters will be, in the near term, anyway, a short flight or car ride away from legal abortion even after Roe.

Unpacking that vision of reality and reasoning

I will assume that Bachiochi is sincere and take her at her word in what she wrote. She starts with the fact that she could not vote for the ex-president. But she is grateful for the anti-abortionists who voted for him did by making a deal with what she calls the devil. That means was to achieve an essential end, namely overturning Roe and getting rid of abortions. This brings up a point argued here repeatedly. Specifically, many Republicans believe the ends justify the means, including voting for the devil. From what I  can tell, Bachiochi makes a principled and moral stand. That makes her a rare thing in the Republican Party.

Maybe she will be RINO hunted out of the GOP for calling the ex-president the devil.

Next, she refers to a fetus as (i) the weak and dependent, and (ii) dependent and vulnerable unborn children. That is a standard anti-abortion rhetorical tactic. One humanizes a non-sentient fetus by calling it the weak and dependent or a child and by making pregnant women who want an abortion listen to little fetus heartbeats, even before there is a functioning heart. She does not believe that the rights of the fetus are any less than the rights of the mother. That is open to debate, but in her mind it isn’t.

Bachiochi looks forward with enthusiasm to what needs to be done once the court overturns Roe and Casey. What needs to be done include (i) convincing the unconvinced that unborn fetuses are morally due hospitality, respect and care, (ii) convince the Republican Party to offer the country ethnic diversity and economic solidarity, or a working-class brand of conservatism, and (iii) somehow give economic security to enable especially mothers to care for their young children themselves. Point i sounds like a rather hard sell, but it is legitimate politics. The anti-abortion folks are free to try to convince the unconvinced.

But on points ii and iii, Ms. Bachiochi is way off the GOP reservation. The Republican Party is about as laissez-faire capitalist as it is Christian nationalist. Bachiochi is clearly in the Christian nationalist wing of the party, but the capitalists are not going to accept her advice because of power and money. She is OK with women staying home to raise the children while dad is out hunting for food to put on the table. That is a bit of central Christian nationalist dogma. But providing economic security so mother can stay home amounts to redistribution of wealth. That is contrary to infallible Republican dogma that demands power and wealth to be concentrated with the elite White men and big industry. Can one feel a RINO hunt coming on? Hard to tell.

Her argument that women do not rely on abortion is not credible (to me). The tens of thousands of women who get abortions each year are in fact relying on an abortion to prevent having an unwanted child. Despite the thick clouds of smoke that conservatives spew on this issue, access to easy adoptions or not, women necessarily rely on abortion to prevent an unwanted birth. Adoption access is irrelevant.

Her argument about what the women’s movement in 1966 stood, moms stay home and raise kids, for is interesting. She argues that recognition of the “economic and social value of homemaking and child care” has not yet had tangible economic impact. Who is to blame for that? Not the Democrats. Her own party stand firmly in the way. Is abortion really mostly just about working for capitalists and women would to stay home if they could afford to as she argues? Could the GOP actually be capable of policymaking on behalf of workers and their families, as she hopes? Have women changed from what they were in 1966 and society really is static and she clearly implies?

As a whole, Bachiochi’s facts and reasoning are not persuasive. Some of it is incoherent. Her own party will not lead to the vision of America she advocates. Her Christian nationalism blinds her to what her party really stands for, and it isn’t what she wants. Once Roe is overturned or gutted but left barely alive, the anti-abortion people are not going to come out and do outreach. They have been told and now most believe that pro-abortion people and Democrats generally are evil socialists and communists who want to impose tyranny and make Christianity illegal. On top of those inconvenient truths, her own party sure as death and taxes is not going to make things economically easier for women. Christian nationalist dogma stands directly in the way of that and so does laissez-faire capitalism, i.e., just about the entire GOP ideological framework and mindset. 

If one considers her words carefully, one can almost hear a Democrat asking for economic justice. She asserts that “this will require that Republicans not fall back to doing the bidding of the business class whose own daughters will be, in the near term, anyway, a short flight or car ride away from legal abortion even after Roe.” At least she realizes and publicly admits that inconvenient truth about the Republican Party, especially its laissez-faire capitalist wing. That seems to make Bachiochi a heretic in her own party. 

Questions: 

1. Is this unpacking of Bachiochi’s vision of facts and morality mostly reasonable, mostly unreasonable or is it mostly too hard to tell because reality and and morals about abortion are basically subjective and personal?

2. If one believes that reality and and morals about abortion are mostly subjective and personal, and an anti-abortionist refuses to compromise[1] by demanding the overturn of Roe, does that make them more democratic than authoritarian on that issue, or vice versa? 

Footnotes: 

1. Leaving Roe mostly intact, not overturned or gutted into near-oblivion, is a compromise between the competing interests in the woman and the state[2] that has stood since the case was decided in 1973. The Roe compromise was to leave the decision to the woman until viability, after which point the state could ban abortion. The alternative of forcing a woman to give birth against her will is no compromise at all. Overturning Roe destroys the compromise and shifts power to the state from the people.

2. The anti-abortion side strenuously argues the state has an interest in protecting the fetus and that state interest trumps the woman's interest in not wanting to give birth against her will. They have to argue that, because that's all they have got that isn't subjective and personal. I do not understood that argument as the anti-abortionists frame it. It just makes no sense to me. The state arguably does have an interest in seeing to it that a pregnant woman does not harm a fetus at any time during a pregnancy after a woman becomes aware, e.g., by taking drugs and bearing a baby that is drug addicted and/or brain damaged. Those harmed babies tend to impose significant burdens on society. But by what facts or logic does the state have any other interest in what a woman decides to do before her fetus is viable? That is why anti-abortionists have to, and do, strenuously argue that the rights of a non-sentient fetus attach from the moment of conception. 

The point of viability compromise in Roe has to be rationalized away somehow by anti-abortionists. Attaching constitutional personhood to a fertilized human egg is the core reasoning of what anti-abortionism and its refusal to compromise stands on. I find that reasoning to be deeply immoral because it is authoritarian and logically unjustified. It is a partisan political argument clearly grounded in subjective “religious logic” disguised as secular logic. Words such as God, Christ, and Christianity appear nowhere in Bachiochi’s attack on Roe and abortion rights. Obviously, that is not logical. It is theocratic, not secular and not democratic.

Money in politics dislikes transparency

Politicians can think up excuses to say that special interest money does not affect them. They dislike being asked about this. They prefer to operate in secrecy so that voters 'don't get the wrong impression,' or see conflicts of interest when there are actual conflicts, etc. The excuses for opacity are endless. In the case of the US Supreme Court, the absolute need for secrecy of its decision-making are said by the court to be obvious, but no judge has ever articulated what those obvious reasons are. It's like porn, you can't describe it, but you know it when you see it.

The New York Times writes on one current example of political corruption in operation in an article entitled De Blasio Fought for 2 Years to Keep Ethics Warning Secret. Here’s Why.:  

When Bill de Blasio first took office as mayor of New York in 2014, he called two powerful real estate developers who had active projects in the city, and asked them to donate money to a nonprofit organization that he had created to advance his political agenda.

The request to help his nonprofit, the Campaign for One New York, seemed to violate the city’s ethics law, and a ban against asking for contributions from people who had business pending with the city. Within months of his solicitations, Mr. de Blasio was formally warned by the city’s Conflicts of Interest Board — in a previously undisclosed letter — not to repeat the behavior.

But even after that warning, the mayor continued to hit up well-connected donors for money, according to documents that the city has now released after years of an extraordinary legal campaign by the de Blasio administration to keep the documents secret.

The new details of Mr. de Blasio’s outreach to donors were contained in a pair of secret letters from the city’s Conflicts of Interest Board to the mayor. In the first letter, dated July 2014, the board said the mayor had violated ethics laws with his two fund-raising calls to developers and warned him not to do it again.

The second letter, sent in September 2018, found that Mr. de Blasio had continued the practice and included a forceful reprimand of the mayor. The letters were released this week, after the State Court of Appeals denied a final effort by the mayor’s office to keep the documents secret.

The city had, for more than two years, fought The New York Times’s efforts to obtain the board’s correspondence with the mayor, denying an initial Freedom of Information request and then fighting a lawsuit filed by The Times.

“By soliciting these three donations from firms with business pending or about to be pending before executive agencies,” the second letter said, referring to the mayor’s 2018 fund-raising efforts, “you not only disregarded the board’s repeated written advice, but created the very appearance of coercion and improper access to you and your staff that the board’s advice sought to help you avoid.”

The NYT goes on to point out that the mayor’s spokeswoman, Danielle Filson, said in writing statement that “the calls the mayor was making at this time were to support affordable housing legislation and his effort to achieve universal pre-K for every child in New York City, which is now a national model. He has consistently acted in good faith and followed the process set out for him. The board closed these cases and determined no enforcement action was necessary.” 

Filson also claimed that the mayor made “appropriate disclaimers” during his fund-raising calls. She asserted that potential donors were told that they would not benefit or be punished if they chose to give or not give money. But de Blasio did not do that.

One disappointing thing here is that, once again prosecutors flat out refused to prosecute a sitting politician. Some of the companies that broke lobbying laws were just wrist slapped with fines. When it comes to politicians and companies or rich people making illegal donations, the rule of law has mostly simply collapsed and vanished. Ethics is irrelevant. Laws are irrelevant. Democracy and the rule of law are crumbling before our eyes.

Another disappointing thing is that the NYT had to fight in court to get access to the two incriminating letters from the ethics board. If there was nothing to hide, then why did de Blasio spend tax dollars to fight in court to keep them hidden? 

Questions: 

1. Should campaign contributions be outlawed and public financing of major elected offices be made mandatory? Or, do campaign contributions affect nothing and are good because the cash is just innocent free speech?

2. Is de Blasio's assertion of acting in good faith plausible or more likely just a politician’s lie?

The allure of democracy: Even tyrants claim to be democrats

North Korea is among the world's most repressive dictatorships. The dictators named the country the Democratic People's Republic of Korea. The DPRK holds elections and if you don't vote, you get shot dead, or maybe spoken to in stern terms. If you don't vote for the dictator, you get shot dead or put in work camps and worked to death. Voter turnout is above 95% and votes for the dictator are at least about 99%.

That is real democracy in action. Or maybe not.

Now, China is claiming that it is a better democracy than America. The New York Times writes:

As President Biden prepares to host a “summit for democracy” this week, China has counterattacked with an improbable claim: It’s a democracy, too.

No matter that the Communist Party of China rules the country’s 1.4 billion people with no tolerance for opposition parties; that its leader, Xi Jinping, rose to power through an opaque political process without popular elections; that publicly calling for democracy in China is punished harshly, often with long prison sentences.

“There is no fixed model of democracy; it manifests itself in many forms,” the State Council, China’s top governing body, argued in a position paper it released over the weekend titled “China: Democracy That Works.”

It is unlikely that any democratic country will be persuaded by China’s model. By any measure except its own, China is one of the least democratic countries in the world, sitting near the bottom of lists ranking political and personal freedoms.

Even so, the government is banking on its message finding an audience in some countries disillusioned by liberal democracy or by American-led criticism — whether in Latin America, Africa or Asia, including in China itself.  

China’s paper on democracy was the latest salvo in a weekslong campaign seeking to undercut Mr. Biden’s virtual gathering, which begins on Thursday.  

In speeches, articles and videos on state television, officials have extolled what they call Chinese-style democracy. At the same time, Beijing has criticized democracy in the United States in particular as deeply flawed, seeking to undermine the Biden administration’s moral authority as it works to rally the West to counter China.  

On Sunday, the foreign ministry released another report that criticized American politics for what it described as the corrupting influence of money, the deepening social polarization and the inherent unfairness of the Electoral College.

Here, China is making an obvious dark free speech ploy. People, including some or many Americans, are openly questioning the value and viability of democracy. That idea has been promoted for years by Russia, China and the American radical right, especially the Republican Party at least since the 1980s. China can and probably will convince nearly all of its people that it is a real democracy, and one that works better than American democracy. 

China's blast is another example of an intense global and radical right internal attack on true democracies. China and Russia attack us online all the time by sowing social distrust, disinformation and polarizing propaganda and lies. In the US, Republicans do the same, while they hob knob with European dictators, thugs and kleptocrats. They like what the see in dictatorship and kleptocracy, i.e., power and wealth. What could be more appealing to politically ambitious people with big egos than power and wealth?

Questions: 

1. Is American democracy under attack by China, Russia and the Republican Party?

2. Is China an honest democracy or a lying dictatorship?

Democracy in action -- see! Everyone agrees!

American democracy: An increasingly unstable complex adaptive system

Complex adaptive system

Complex adaptive system (CAS): a system that is complex because it operates as a dynamic network of interactions, but the behavior of the ensemble or the whole may is not always predictable according to the behavior of the components; examples include nations, groups of people, traffic flow, the internet, systems of government, ecosystems, financial markets, army ants, bee hives, and individual brains (discussed here before)

Consilience: agreement between different approaches to a topic of different academic subjects, especially science and the humanities; agreement among different approaches increases the likelihood that a belief supported by consilience is more apt to be real and more accurate than one based on data and analysis from a single source of research

Consilience has emerged regarding American democracy. Researchers applying CAS theory to it see that our democracy is in serious trouble. Researchers assert that a major component feeding the instability is political and social polarization and the loss of mental diversity among people in groups who self-associate and are not exposed to different facts and political opinions.

One source comments on several papers on American democracy and its status as a CAS. The papers were published together on Dec. 6, 2021 in the Proceedings of the National Academy of Science (PNAS):   

Much like an overexploited ecosystem, the increasingly polarized political landscape in the United States — and much of the world — is experiencing a catastrophic loss of diversity that threatens the resilience not only of democracy, but also of society, according to a series of new studies that examine political polarization as a collection of complex ever-evolving systems.

Ultimately, as social interactions and individual decisions isolate people into only a few intractable camps, the political system becomes incapable of addressing the range of issues — or formulating the variety of solutions — necessary for government to function and provide the services critical for society.

“The complex systems perspective demonstrates that the loss of diversity associated with polarization undermines cooperation and the ability of societies to provide the public goods that make for a healthy society,” according to an introduction by issue editors Simon Levin, Princeton’s James S. McDonnell Distinguished University Professor in Ecology and Evolutionary Biology, Helen Milner, the B.C. Forbes Professor of Public Affairs and professor of politics and international affairs at Princeton, and Charles Perrings, professor of environmental economics at ASU.

“Polarization is a dynamic process and that is what complexity theory can best help us understand,” they wrote. “As environmental and complexity scientists have shown in other contexts, diversity maintenance is critical for many systems to thrive, and often to survive at all.”

Complex adaptive systems are widespread in fields from physics and financial systems to natural systems driven by evolution and socioeconomic-political systems, said Levin, who is director of the Center for BioComplexity based in Princeton’s High Meadows Environmental Institute (HMEI).

Neurologist Steven Novella at Neurologica blog comments on this research:

What various researchers found is that when we obtain our political news from a network of like-minded people several things happen. First, the group tends to narrow over time in terms of political diversity. This happens because those who are considered “not pure enough” are ejected from the network, or leave because they feel less welcome. Further, people within the network tend to get access to less and less political news total, and the news they are exposed to is increasingly polarized. This doesn’t happen when such networks do not routinely share political news to begin with.

The core problem, therefore, seems to be the diversity of sources of information. Similar networks of people, in fact, can have a moderating effect on individual members, if the group maintains a diversity of sources of information reflecting a diversity of political opinions. Further, a healthy moderating effect is supported by individual members exploring outside the group for sources of information.

These patterns follow similar mathematical trends to other very different phenomena in other complex adaptive systems. For example, such trends tend to be non-linear, meaning the more extreme they get the more the trend accelerates. Further, there seems to be tipping points of no return. Once such information networks are radicalized beyond a certain point there may be no way back. Their models indicate that Republicans are likely already beyond this tipping point, while Democrats are rapidly approaching it.

What, then, can be done? As individuals the apparent solution is to maintain a diversity of information sources, and continue to explore for new sources. Don’t rely on any one or limited number of networks of like-minded people for your information. Further, strive to be tolerant of a diversity of opinions among your various social circles.

What can we do as a society? This is a tougher question. Some have argued, I think reasonably, that we may need to bring back the fairness doctrine in news reporting. There is also a lot of focus on social media algorithms, which seem to have automated the very effects that these researchers warn against, sucking people into an epistemic bubble of increasingly narrow and radical views.

Local depolarization vs. global polarization

A PNAS news site comments:

In the polarization studies that have been done to date, says Macy, one of the most striking insights is how much of it can be explained by the interplay of just two sociological forces. One of them is the assimilation, or “influence” effect: People who interact a lot will eventually start to think and act alike.

This effect is so strong, and so well documented in the literature, that social scientists spent decades trying to figure out why polarization exists at all—or why, for that matter, humans are divided by language, fashion, cuisine, music, folkways, and a host of other differences. Why do these divisions often endure for centuries, instead of gradually fading away as the assimilation effect seemed to predict?

A big part of the answer turned out to be the second force, homophily: people’s preference for hanging out with others like themselves. One influential study of the power of homophily was Robert Axelrod’s 1997 model of culture formation. This model turned out to anticipate today’s rural–urban split between Republicans and Democrats, as well as the self-reinforcing echo chambers that have now become familiar on Twitter and Facebook.

Recent modeling work has also yielded a second key insight about polarization: namely, the crucial role played by negative emotions, which can turn both influence and homophily inside out. Just as people can be drawn together by the influence effect, says Macy, “they can also become more different from each other through negative influence,” also known as “repulsion.” And the flip side of homophily is xenophobia, he says, “which is the tendency to run away from those who are different.”

Negative emotion is obviously crucial for understanding the intergroup venom we’re seeing today. But Noah Friedkin, a sociologist at the University of California, Santa Barbara, points out that efforts to model its effects actually date back to the birth of “balance theory” in the 1940s and 1950s.

Recent years have seen a marked rise in “affective” polarization, a feeling of mutual dislike and mistrust between the two sides. The trend is illustrated in data from the American National Election Survey: People's feeling of warmth toward members of their own party (green) has held steady since 1980, whereas their feelings toward members of the other party (purple) have dropped. The difference (black) is a measure of affective polarization.

But just about everyone in this field is considerably less optimistic about proposals to reform social media. For one thing, it’s not clear how effective any such reforms would be. Even though Facebook, Twitter, YouTube, and other platforms are widely viewed as vectors for misinformation and employed as partisan echo chambers, researchers are still arguing about how much they actually contribute to polarization. According to some studies, in fact, the algorithms that determine what users see in their feeds are just bit players; most of the online divisions come from people sorting themselves the way they always have, through “birds-of-a-feather” homophily.

For another thing, the reforms could easily backfire. In 2018, for example, Bail led a team that tested a frequently proposed idea for opening up the echo chambers. They paid more than 1,600 Republican and Democratic Twitter users to follow bots that would periodically show them tweets from figures in the opposite party. “The hope was that this would lead to moderation,” says Bail. But in fact, he says, people mostly just recoiled from the discordant information. “Nobody became more moderate,” he says. “And Republicans, in fact, became significantly more conservative.”

That is sobering news. It seems that the Democrats are polarizing, presumably significantly or mostly in response to Republican polarization, which has been building for decades as social changes became increasingly unpleasant for what appears to be most or nearly all conservatives. When a CAS like American democracy becomes too unstable, it enters a period of chaos starting at a bifurcation point. The end result is unpredictable. Some form of authoritarianism, autocracy, fascism, plutocracy, kleptocracy, laisses-faire capitalism, and/or Christian theocracy could be plausible end results and the start of a new period of equilibrium. Far less plausible outcomes would seem to be true socialism, communism or anarchy. 

Since the election of the ex-president in 2016, it has felt as if the US entered a period of relative social and political chaos and unpredictability, which continues today. However, that is just a personal observation.

Other information source: Political sectarianism in America, A poisonous cocktail of othering, aversion, and moralization poses a threat to democracy, 2020

Question: Do CAS research results indicating increasing instability in American democracy seem plausible, or is this merely an academic curiosity?

Bifurcation map of the CAS of population growth of an animal

(when the line splits in two, the CAS has bifurcated 

and the system changes in ways that tend to be unpredictable)

Some commentary on the Supreme Court and freedom of judges to decide

“This is an attempt to describe generally the process of legal reasoning in the field of case law, and in the interpretation of statutes and of the Constitution. It is important that the mechanism of legal reasoning should not be concealed by its pretense. The pretense is that the law is a system of known rules applied by a judge; the pretense has long been under attack. In an important sense legal rules are never clear, and, if a rule had to be clear before it could be imposed, society would be impossible. The mechanism accepts the differences of view and ambiguities of words. It provides for the participation of the community in resolving the ambiguity by providing a forum for the discussion of policy in the gap of ambiguity. On serious controversial questions it makes it possible to take the first step in the direction of what otherwise would be forbidden ends. The mechanism is indispensable to peace in a community.

We [judges] mean to accomplish what the legislature intended. . . . . The difficulty is that what the legislature intended is ambiguous. In a significant sense there is only a general intent which preserves as much ambiguity in the concept used as though it had been created by case law. . . . . For a legislature perhaps the pressures are such that a bill has to be passed dealing with a certain subject. But the precise effect of the bill is not something upon which the members have to reach agreement. . . . . Despite much gospel to the contrary, the legislature is not a fact-finding body. There is no mechanism, as there is with a court, to require the legislature to sift facts and to make a decision about specific situations. There need be no agreement about what the situation is. The members of the legislative body will be talking about different things; they cannot force each other to accept even a hypothetical set of facts. . . . . Moreover, from the standpoint of the individual member of the legislature there is reason to be deceptive. He must escape from pressures at home. . . . And if all this were not sufficient, it cannot be forgotten that to speak of legislative intent is to talk of group action, where much of the group may be ignorant or misinformed.

In addition to the power to hold legislative acts invalid, a written constitution confers another and perhaps as great a power. It is the power to disregard prior cases. . . . . The problem of stare decisis [legal precedent] where a constitution is involved is therefore an entirely different matter from that in case law or legislation. This is often overlooked when the court is condemned for its change of mind. A change of mind from time to time is inevitable when there is a written constitution. There can be no authoritative interpretation of the Constitution. The Constitution in its general provisions embodies the conflicting ideals of the community. Who is to say what these ideals mean in any definite way? Certainly not the framers, for they did their work when the words were put down. The words are ambiguous. Nor can it be the Court, for the Court cannot bind itself in this manner; an appeal can always be made back to the Constitution. Moreover if it is said that the intent of the framers ought to control, there is no mechanism for any final determination of their intent. . . . . The major words written in the document are too ambiguous; the ideals are too conflicting, and no interpretation can be decisive.”  ---  From An Introduction to Legal Reasoning by former US Attorney General Edward H. Levy, 1949, summarizing the concept of American Legal Realism that had been used for decades to interpret US laws and the US Constitution

US Senator Ben Sasse (R-NE): “. . . . . the people don't have a way to fire the bureaucrats. What we mostly do around this body is not pass laws. What we mostly decide to do is to give permission to the secretary or the administrator of bureaucracy X, Y or Z to make law-like regulations. That’s mostly what we do here. We go home and we pretend we make laws. No we don’t. We write giant pieces of legislation, 1200 pages, 1500 pages long, that people haven’t read, filled with all these terms that are undefined, and say to secretary of such and such that he shall promulgate rules that do the rest of our dang jobs. That’s why there are so many fights about the executive branch and the judiciary, because this body rarely finishes its work. [joking] And, the House is even worse.”

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The comments below are adapted from a blog post here two days ago, Did Republican Supreme Court justices lie about abortion?. Some interesting points are made that are useful to have in mind as some context for the Supreme Court as it embarks on what is going to be years of anti-secular, radical right social engineering. That engineering will be driven by sacred Christian nationalist dogma and blind faith in laissez-faire capitalism. Republican legal reasoning in this re-engineering of American society will be obscured by smoke and mirrors that the Republican judges will falsely tell us is the only proper constitutional interpretation. 

The point is this: We are going to be socially engineered upon good and hard, whether we like it or want it or not. Republicans want it and they are now on the verge of getting what they have been paying and fighting hard and dirty for decades to get.

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Comment: Many years ago in a speech at the Manhattan Institute, a radical right rich people group in New York city, Supreme Court Justice Clarence Thomas articulated what appears to me to be what is now mainstream radical right judicial thinking about precedent or stare decisis.

Paraphrasing Thomas from memory: Of course I believe in and adhere to stare decisis. All judges do. But I will not hesitate to overturn a settled precedent if it was wrongly decided. Then I would not hesitate to vote to overturn it.

Unless I'm mistaken, one of the Republican's comments in his oral argument comments about the Mississippi abortion law now under review by the court clearly echoed that 'logic'. I do not think it was Thomas, but just can't remember who it was. I think it was Roberts who made this argument. He framed the question asking if a court decision was wrong from the day it was decided, like Plessy, and nothing had change in the interim, should that precedent be overturned some time later by a later court decision? The judge was clearly saying that a bad decision from the get go has little or no constitutional basis to stand on. Other arguments such as people relying on the old decision just do not matter enough to change that outcome.

Response: Sure. I say when in Rome do as the Romans do unless I don't approve of what the Romans do, in which case I don't do as they do. Wait, I think I just went full circle there. That's my response to people like Thomas. He uses the words "wrongly decided" like their meaning is self-evident. As you say, there have been decisions which clearly contradict the constitution (Plessy being one, Dredd Scott another), but this is pretty rare. More often decisions are controversial and can be defended and attacked by legal thinkers depending on their interpretations. Republicans like to pretend they have some monopoly on the "original meaning" of the constitution which can then be used as basis for evaluating all decisions. 

When things don't satisfy their self-imposed criteria, they say they are "righting the wrongs of bad decisions." When anyone else breaks from precedent they label it as "judicial activism." Their philosophy is circular, self-serving and logically crude. It amounts to claiming superior insight into the meaning of the constitution on no logical basis. Originalism is a fig leaf for their own "judicial activism." At least the legal realists admit that the meaning of the constitution is not fixed once and for all, and that there should be flexibility in light of changing social conditions, mores etc. Originalists would have you believe all "good decisions" can be easily derived from the constitution.

Also, I've never been entirely clear on how they square the 14th amendment with 1787 constitutional convention, which drew up and agreed on the original document. In my opinion, the post civil war amendments (13th (1865), 14th (1868) and 15th(1870)) were morally and politically driven revolutionary departures from 1787. Those departures were made necessary because the bad compromises in the supposedly hallowed, 'original text' of the constitution resulted in civil war. So the victors-- radical Republicans-- wrote the 3 Reconstruction era amendments), and in so doing completely changed constitutional law forever. Without the 14th Amendment, the Bill of Rights, for example, would not apply to the individual states but only the Federal government.

Add to that, the fact that the 14th Am. was used for decades not as "intended" for civil rights, but for corporate rights with phrases like "liberty of contract" designed to minimize any government regulations. The history of legal decisions is anything but an inexorable, consistent and principled march from Philadelphia lawyers in 1787 to present. The Republicans seem to have a problem admitting this, or the obvious relevance of historical changes and contexts that influence the Court. The American people should also stop going along with this pretense that somehow the judiciary stands outside of historical and political cross-currents, ideologies, intellectual fads and the like. We need, also, to see the constitution as something less than Holy Writ that issued whole from the mind of Zeus in the 18th century.

Justices ARE politicians of a kind. They're appointed by and given immense powers within the US Government. They are nominated by particular Presidents who serve as the leaders of particular parties. I think deep down most people have a sense of this. 

It's time to discuss term limits, IMO.

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One point for context is useful here. At one point, the Response referred to the "legal realists." That refers to an American legal tradition called American Legal Realism (ALR). Edward Levy laid out in his short 1949 book how this works in practice and why it is necessary for a democracy. The idea behind it is that as society and technology change, judges interpret ambiguous laws to reflect those changes. For the most part, Republicans falsely believe and argue that the only proper way to interpret the Constitution is to look at the original text. Their legal authorities refer to things like originalism or textualism, wherein technological and natural social changes are mostly irrelevant. 

The modern Republican Party generally opposes the ALR tradition of constitutional interpretation, although on some occasions, it is arguably practicing its own version of ALR. One might call it reverse ALR. Specifically, the Republican version of ALR relies on its ideology and morals to oppose social changes it dislikes, e.g., laws allowing abortion, same-sex marriage, consumer protections and equal rights for minorities.  

Acknowledgement: The Response is by PD. My sincere thanks to him for taking the time and effort to comment here. 

Questions: 

1. Is it reasonable to argue that Republican judges on the Supreme Court are more driven by political and religious ideology than Democratic judges, which tend to operate in the framework of ALR? 

2. Should judges adapt to account for social or technological changes when the law is ambiguous and the original intent of the Founders or congresses who write laws cannot be authoritatively determined?

3. Is it time to discuss term limits for federal judges? People in Congress?