Tag Archives: Ilya Shapiro

Every Gentleman Best Heed the Power of Hysterics To Censor

19 Saturday Feb 2022

Posted by in Censorship, Gender Differences, Uncategorized

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Here are the gender conventions we’ve adopted in Western society on the rules of debate:

“We accept gender double standards, and tolerate more aggression towards men than we do towards women. We also tolerate more hyper-emotionalism from women than men.”

So says Richard Hanania in an essay called “Women’s Tears Win In the Marketplace of Ideas“. Hanania is the president of the Center for the Study of Partisanship and Ideology, and a research fellow at Defense Priorities. He offers some cogent examples of this disparate treatment, such as the Yale Halloween costume imbroglio and the “cancelling” of Ilya Shapiro at Georgetown Law School. To those we can add Eric Landers’ forced withdrawal as Joe Biden’s chief science advisor, and there are countless others. About this, Hanania says:

“What makes these cases difficult is that male versus male argumentation just has completely different rules, norms, and expectations than male versus female. … A man can’t just yell in another man’s face for 5 or 10 minutes about how he’s hurting his feelings. If a man does behave this way, bystanders are more likely to feel disgusted than join in or play the role of white knight. The man at the receiving end of the abuse is at some point going to have to escalate towards violence, or back down and say something about how this is beneath him. Depending on the situation, observers may assume violence is a distinct possibility, and get between the two sides.

None of these options are available when getting yelled at by a woman. You certainly can’t make an implicit threat of violence. Raising your voice will turn everyone against you, and even walking away can look heartless.”

I’ve witnessed a few pathetic crying jags in the workplace myself, as well as some volleys of verbal belligerence from females on social media that were pointedly anti-social. In my experience, most women can dish out barbs good-naturedly in jest and conduct themselves with dignity in debate. On the other hand, there are too many men who become hostile in debate, which most observers will find much less sympathetic if the counter-party is a woman. And there are a few men, here and there, who have trouble holding back tears in a fraught exchange, but we all know it’s not a good look.

To state the obvious, tears are a natural reaction to grief or real hurt. Anger is well-justified in response to criminal or personal wrongs. Nevertheless, it’s necessary to distinguish between these kinds of reactions and the ignoble tears or venom sometimes brought to controversial debates by neurotic partisans. As Hanania says of our disparate gender conventions, considerable censorship is instigated by an intransigent minority of women who manage to “… indulge their passions in ways that men cannot … .” Most men, anyway… and if they do, they’ve usually lost and know it.

These passionate displays are often tied to claims of individual or group victimhood. The objector could be anyone who feels an under-appreciated beef, but acting-out in order to signal “virtuous victimhood” in this way might indicate a deeper instability.

Again, as Hanania says, females have a definite advantage in the deployment of tears, confrontational rhetoric, and screams. Coincidentally, in a post to which Hanania links, Noah Carl marshals data on the extremely skewed representation of degrees awarded to women in Grievance Studies (e.g. Gender Studies and Critical Race Theory).

Too often, claims of victimhood are invoked in attempts to rebut any number of principled policy positions. For example, your views might be construed as offensive, racist, or sexist if you oppose such things as an increase in the minimum wage, racial quotas, disparate impact actions, equal pay rules, family leave mandates, and abortion. Expressing a strong and reasoned defense of many positions can foment imagined micro-aggressions or even harassment.

The real danger here is that honest debate is suppressed, and with it, very often, the truth. I acknowledge that people must be free to express or defend their views passionately, and with tears, screams, or otherwise, which the First Amendment guarantees. Our gender conventions in this matter should be revisited, however, if men and women are truly to be on equal footing.

Whether baring fangs or shedding tears, there are self-appointed arbiters of acceptable speech represented in almost all of our public and private institutions, ready to shut down debate on account of their feelings. They have more than a few sympathetic allies, male and female, at higher levels of their organizations. In the past, Hanania has discussed the over-representation of females in Human Resource departments. In these contexts, adjudication of disputes often relies on vague notions of what constitutes “hate speech” or “harassment” under Civil Rights Law. If you manage to provoke the tears of a colleague or underling, you’re probably behind the eight ball!

Hanania considers some alternative ground rules or “options” for debate:

  1. Expect everyone who participates in the marketplace of ideas to abide by male standards, meaning you accept some level of abrasiveness and hurt feelings as the price of entry.
  2. Expect everyone to abide by female standards, meaning we care less about truth and prioritize the emotional and mental well-being of participants in debates.”

Either of these options is better than the double standard we have now, and Hanania point to a number of egregious manifestations of our double standard. As he notes, #2 might be what’s meant by the “feminization of intellectual life”, but it fosters the arbitrary prohibition against discussion of any number of ideas that belong on the policy menu.

Option #1 would undoubtedly be condemned as “traditional male dominance” of public debate, but it would bar no one from participation, and obstacles perceived by females, or any sensitive soul, can be viewed as a matter of socialization. Both tearful and ferocious argumentation should be marginalized regardless of the antagonist’s gender.

Imperfect as they are, we have laws and/or social strictures against harassment, bullying, and other aggressive behavior thought to be largely associated with malcontented males. But as Hanania says:

“We haven’t even begun to think carefully about equivalent pathologies stemming from traits of the other sex.”

This problem obviously pales in comparison to the fascist tactics typical of the far Left. That includes the violent behavior of Antifa and BLM, unethical attempts blame conservatives for various, often fabricated deeds, and to threaten and punish them economically, even to the point of state-sponsored thievery and threats of harm to family members. Despite the more benign nature of the disparities discussed here, restoring gender equality to the terms of civil debate, without tears and hysterics, would be a great step forward.

Gagging On Campaign Finance Reform

10 Wednesday Feb 2016

Posted by in Big Government, Campaign Finance

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campaign-finance-reform

Campaign finance is an area of internal conflict for some libertarians. On one hand, they do not believe in restrictions of any kind on freedom of expression. That implies no limits on what an individual can spend in support of a political cause, by themselves or in association with others, and whether it merely promotes a point of view or supports a political candidate. At the same time, libertarians are strongly opposed to rent-seeking activity, or efforts to use government power to promote private interests. Political spending is seen by many as an avenue for rent seeking, which suggests to them a need for limits on campaign contributions.

In fact, full-throated support of free speech and opposition to campaign limits do not stand in conflict. The reasons are: 1) such limits are an assault on free speech; 2) campaign contributions represent “small change” in the larger scheme of rent-seeking pursuits; 3) contributions seldom represent direct efforts to influence policy; and 4) imposed limits have a detrimental effect on the ability of elected officials to do their jobs.

Speech

Free speech, long interpreted by the courts more broadly as free expression, is protected by the First Amendment to the U.S. Constitution. This includes political expression, but traditionally it included campaign contributions as well, the latter being an obvious mechanism by which one can express views. However, the Supreme Court has upheld statutory limits on individual contributions to specific campaigns, as well as disclosure rules, on the grounds that they prevent corruption (Buckley v. Valeo and more recently McCutcheon v. Federal Election Commission(FEC)). I view the contribution limits as a contravention of the First Amendment, denying an enumerated right on the grounds that it “might” lead to corruption. If preventing corruption is the sole rationale for these limits, then government itself should be sharply limited, as it most certainly leads to graft and corruption at the expense of relatively powerless taxpayers.

Citizens United

A well-known Supreme Court case decided in 2010 involved independent political speech, as opposed to expression of political preference revealed by campaign spending. This was Citizens United v FEC, in which the Court ruled that political speech cannot be restricted on any basis other than corruption. As described by Ilya Shapiro, the case is widely misunderstood. One point of interest here is that the case related to speech by an organization rather than an individual. The Court ruled that a corporation (a nonprofit in the case) could not be prevented from airing a film critical of Hillary Clinton, striking down provisions of the Bipartisan Campaign Reform Act of 1990 (McCain-Feingold) under the First Amendment.

The Citizens United decision was NOT about campaign contributions. As an interesting aside, in a search of cartoons related to campaign finance, a great many imply that the Supreme Court abolished such limits in Citizens United. It did not. Even given some level of disaffection, it is hard to account for the near-complete lack of understanding about the case.

More informed critics of the decision bemoan that fact that it allows speech by corporations (and unions and other associations) to go unlimited, though they don’t seem to mind the absence of limits on political speech by media corporations. (See Eugene Volokh’s view in the Brown Daily Herald and Michael McConnell’s reinterpretation of Citizen’s United as a Press Clause case in the Yale Law Journal.) The critics also fail to recognize that corporations are associations of individuals, who are otherwise subject to no restrictions on independent speech or on what they can spend to speak independent of any political candidate (as established in Speechnow.org v. FEC in 2010). The technical treatment of a corporation as a “person”, which many find objectionable, is beside the point. Only by distorting the meaning of the First Amendment can any limitation be placed on the freedom of individuals to speak in association with others.

Jacob Sullum covers the confused legal thinking of leading Democrats Hillary Clinton and Bernie Sanders on campaign finance reform, and on Citizens United in particular. Jeb Bush is no better. Most of the opposition to the decision centers around the notion of “balancing” speech, but Sullum offers a piece of wisdom from a 1996 quote of future Supreme Court Justice Elena Kagan: “the government may not restrict the speech of some to enhance the speech of others.”

Corporate Campaign Spending

Another point raised by Ilya Shapiro is that corporate spending growth has neither accelerated nor decelerated in the wake of Citizens United. Moreover, restrictions on direct campaign contributions are still in place. However, campaign contributions are a relatively small percentage of corporate “influence spending”, averaging roughly 10% of the total between 2007 and 2012 for 200 large “politically active” corporations. Thus, direct campaign contributions are unlikely to be the primary avenue for rent-seeking activity. They might help buy “access” to politicians, but they may not be especially effective in influencing policy. These points are supported by University of Missouri economist Jeffrey Milyo in “Politics Ain’t Broke, So Reforms Won’t Fix It“. Milyo marshals empirical evidence that should make us skeptical of campaign finance reform efforts.

Incapacitated Legislators

Jonathan Adler of Case Western emphasizes the legislative dysfunction created by campaign finance reforms. McCain-Feingold places limits on funds candidates can receive from their political parties and other sources, forcing them to spend a large proportion of their time on fundraising (and placing incumbents at a distinct advantage). If there is a shred of sincerity in the populist insistence that members of Congress be subject to tighter term limits, or that Congress is woefully unproductive, then full repeal of these limitations should be a priority.

Visibility Versus Effectiveness

The chief advantage of combatting corruption through regulating campaign finance is that it is a visible target. However, it is a target too rich with free speech implications. Disclosure requirements are one thing (through arguments can be made against infringements on the privacy of contributors as well). Limiting forms of expression outright is draconian, and reformers are unlikely to be satisfied until campaigns are funded entirely by taxpayers. Attacking “corruption” via limits on campaign contributions presumes a need to protect both contributor and recipient from their own guilt. Even if contributions help gain better access to an elected representative, it does not imply that the representative will act on motives counter to the perceived public merits of an issue. Moreover, the argument that limits on direct contributions to candidates “keep money out of politics” is flawed. Limits simply change the distribution of political spending, increasing the reliance on bundlers and organizations like Super PACs, and shifting the tables in favor of incumbents.

There are far better ways to combat corruption among legislators and others in government, some with more severe drawbacks than others. Term limits are one possibility, but would deny voters of legitimate choices. Another option is to allow candidates to have unrestricted access to campaign funds through central organizations, rather than forcing them to rely on independent Super PACs, which cannot always be relied upon to craft a candidate’s preferred messages. Immediate disclosure of contributors and amounts would help to bring more transparency to the campaign finance process. Stiffer disclosure requirements for “bundlers” would also help. Perhaps elected executives could be prohibited from appointing bundlers to positions of authority, though a precise definition of “bundler” might become contentious. There are other reform possibilities related to limiting permissible lobbying activity.

The libertarian’s dilemma with respect to campaign finance is easily resolved once the focus is placed squarely on protecting individual rights. In the end, the best defense of individual rights and against corruption in government is to limit government. It’s wise to place strong reigns on an institution that operates by virtue of coercive authority. The danger was well-acknowledged by the limits on government power enshrined in the Constitution.

Borkians Preserve Federal Obamacare Subsidies

29 Monday Jun 2015

Posted by in Obamacare

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ACA Supremes cartoon

I have mixed feelings about the Supreme Court’s King vs. Burwell decision upholding federal subsidies for health insurance purchased in states that did not establish their own exchanges. My biggest concerns are that the decision gives a pass to the unchecked exercise of executive fiat as well as congressional carelessness (“lassitude”, to use Justice Scalia’s term), and the smearing of the separation of legislative and judicial powers. I admit that I was eager to see the exchanges unravel under the weight of their own lousy economics. However, the economics remain lousy even with the ruling, which will become more evident as major subsidies to health insurers expire over the next 18 months. It will be interesting to watch as the process of escalating premia plays out. I’m relieved that the Obamacare opposition in Congress (primarily Republicans) is now off the hook. These legislators never coalesced around an alternative and would have received a good portion of the blame for any further disruptions in the insurance “market” had the decision gone the other way. Probably their best approach would have been to extend the subsidies to all exchanges, at least for the remainder of Obama’s term. As Tyler Cowen notes, an extension would have occurred:

“… only after a lot of political stupidity and also painful media coverage. So on net I take this to be good news, although arguably it is bad news that it is good news.“

On the merits of health care policy, given the failure to put forward a better plan, what would have been gained over the next 18 months from a ruling for the plaintiffs? Not much.

Cowen links to a Robert Laszlewski post emphasizing the fragile economic and political condition of Obamacare:

“Obamacare has only enrolled about 40% of the subsidy eligible market in two years worth of open enrollments. That level of consumer support does not make Obamacare either financially sustainable or politically sustainable. The surveys say the 40% who have enrolled like their plans. Of course they do, they are the poorest with the biggest subsidies and the lowest deductibles. The working and middle-class have most often not signed up for Obamacare because it costs too much and delivers too little.

That Obamacare is not financially sustainable is evidenced by the first wave of big 2016 rate increases by so many large market share insurers. The next wave of rate increases a year from now will also be large and will be in the middle of the 2016 election.“

The SCOTUS decision flies in the face of the roles and responsibilities assigned to the branches of government by the Constitution. The implication of the ruling is that a law means whatever the executive branch says it means, even when it says the opposite unambiguously. This goes too far in granting executive power to “reimagine” legislation, and the Left may well come to regret it as a precedent. Executive rulings in implementing laws is nothing new, but one hopes for the courts to keep a tight rein on this discretion in an era when the regulatory environment is growing increasingly complex.

A Randy Barnett post at SCOTUSblog quotes Chief Justice Roberts’ opinion:

“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.“

Improve health care markets? Not destroy them? Wait… I’m confused! But seriously, at this point in the process, Justice Roberts must be confused about actual outcomes. An objective assessment of Obamacare would include an accounting for the many individuals whose policies were cancelled against their wishes, premium escalation, and the fact that the ACA has fallen well short of expectations for reducing the number of uninsured; the law has certainly not improved markets. Barnett describes Roberts’ apparent philosophy on this point thusly:

“... the Chief Justice seems to be telling us that he is once again putting a thumb on the scale for the government here as he did in his solo opinion in NFIB. Rather than assessing the constitutionality of the law as written – or enforcing it according to its terms – the court will rewrite the law to suit the government.” 

This is not merely “legislative deference”, it is legislative rescue and a rewriting of the law. And Barnett points out that the Courts should provide a check on bad legislation, not serve as enablers.

Damon Root offers an excellent clarification of Roberts’ thinking: the strand of conservative judicial philosophy calling for deference to legislative intent is often attributed to Robert Bork. This obviously conflicts with the notion that conservatives are judicial activists. I discussed judicial activism here a few months ago, including Randy Barnett’s assertion that the term seems to be invoked as a pejorative almost any time someone doesn’t like a court decision. If it means preserving the Constitution, then count me as an activist.

Ilya Shapiro sums up the “intent” of the legislation and the “deferential” position taken by the court in King vs. Burwell:

“Roberts explains his transmogrification by finding it ‘implausible that Congress meant the Act to operate in this manner,’ to deny subsidies to millions of people as part of legislation intended to expanded coverage. But it’s hardly implausible to think that legislation that still says that states ‘shall’ set up exchanges—the drafters forgot to fix this bit after lawyers pointed out that Congress can’t command states to do anything—would effectively give states an offer nobody thought they’d refuse. It was supposed to be a win-win: states rather than the federal government would run health care exchanges (yay federalism!) and all those who need subsidies to afford Obamacare policies would get them (yay universal healthcare!).

But a funny thing happened on the way to utopia, and only 14 states (plus D.C.) took that too-tempting offer, perhaps having been burned too many times before by the regulations that accompany any pots of “free” federal money. And that’s why we ended up with King v. Burwell: Obamacare the reality doesn’t accomplish Obamacare the dream.“

We’ll watch to see how badly Obamacare fares over the next two years. And we’ll hope that eventually Congress can fashion a new health care plan that creates more choice, reduces taxes, increases competition and reduces coercive rules and regulatory burdens.