Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Locating the absolute minimum level of policy “seriousness” our public sphere demands
Polls close soon in today’s special congressional election in Montana. Last night, the Republican candidate Greg Gianforte reacted angrily to a Guardian reporter’s questions about the CBO score of the Republican health care bill by body-slamming the reporter to the ground and repeatedly punching him, according to eyewitnesses, one of whom was a reporter for Fox News, Alicia Acuna.
This put Acuna in an awkward position. She and her two crew members were the closest eyewitnesses to an extraordinary and extremely newsworthy event—but also one that would likely harm the prospects of the Republican candidate in a very high-profile special election. Thus, core norms of Acuna’s profession (tell the story, get the facts out, do it quickly and fairly) came into unusually sharp conflict with core norms of her employer (tell the pro-Republican side of the story, or else minimize the story). To her great credit, Acuna put out a statement last night that was straightforward and unequivocal. She stated that after Ben Jacobs, the Guardian reporter, asked his CBO question a second time, “Gianforte grabbed Jacobs by the neck with both hands and slammed him into the ground behind him. [My crew] and I watched in disbelief as Gianforte then began punching the reporter. . . . To be clear, at no point did any of us who witnessed this assault see Jacobs show any form of physical aggression toward Gianforte.” (She clearly told the same thing to the police; Gianforte has been charged with assault.) Early this morning, Acuna was interviewed on Fox News about the incident. Some conflict between the two sets of norms within which she must operate—a conflict inherent in Fox News’ position in the political and journalistic ecosystem—was unavoidable. Again to her credit, Acuna described the body-slamming on air. She then made a slight shift, and read out a Gianforte campaign statement about what happened, the text of which filled viewers’ screens—a statement entirely at odds with her own account and, it would seem, with reality. (In the statement’s version of events, Jacobs, the reporter, was the aggressor.) Acuna did not contradict the campaign statement. She just read it out. She never restated on air the most important point from her written statement from the night before, the point that most directly contradicted the statement she had just read: that “at no point did any of us who witnessed this assault see Jacobs show any form of physical aggression toward Gianforte.” To say on air that one side—the Republican side—of this “controversy” was simply lying would have conflicted too much with one of the two sets of norms to which Acuna is subject as a journalist working for Fox News.
This incident is interesting for all kinds of reasons. Some of its most interesting resonances have to do with the nature of Fox News. The way Fox News employees do their jobs has an enormous aggregate effect on one of the big political questions of our time: whether we can still have a public sphere, a national conversation, based on shared facts that are actually true.
On this front, the incident last night in Montana provides a useful boundary-delimiting end case. It would be possible, I would think, to staff a news organization or a political organization (or a hybrid of the two) with people who, when required, will simply go out and flatly lie about events they have just witnessed with their own eyes. However, although possible, this is tough to sustain. Making people flatly lie in a sort of black-is-white, up-is-down manner about facts where there is a clear truth of the matter, and they know it, tends to erode their self-respect. It makes it hard to hire and keep good employees. It makes you more vulnerable to disloyalty and perhaps to leaks born of employees’ internal torment and alarm.
What is easier and more sustainable than demanding flat lies is to trade instead on norms that are part of the role-morality of journalism itself. One important set of norms within journalistic role-morality surrounds the idea that all sides of a controversy should have a fair chance to have their say. When I watched Acuna’s broadcast interview, compared to her written statement, I heard her simply putting a little more weight on that particular journalistic norm, and less weight on the competing, sometimes-conflicting set of norms about stating the facts and getting the truth out. Like a subtle shift of weight from one foot to the other, this is just a change of stance within a firmly journalistic posture; it doesn’t feel like an active betrayal of journalism’s core values.
In a democracy, we depend on journalism about many topics. But we especially depend on journalism about public policy. The challenging thing about public policy journalism is that the journalists are never eyewitnesses to the body-slam. In order to understand what’s at stake in any given bill or regulation, journalists rely heavily on others’ expertise. And those others are not eyewitnesses either. Instead they are experts, who use canons of expert knowledge to assess and predict the effects of any change in the law and who it will affect and how. The experts operate in a complex ecosystem with journalists who credential them as sources of relevant knowledge and then transmit that knowledge to a wide audience. The journalists themselves are in the strange position of providing most citizens with most of what we need to know about important public questions that neither we nor the journalists can be sure we understand without help—and yet these are questions for which we, the people, are ultimately responsible.
The whole system works in part because the experts—politicians, academics, authors, think tank scholars, and assorted others—in many cases have their own forms of role-morality that (hopefully) constrain them from too wildly distorting the truth. When that breaks down, the whole system by which journalists communicate with the people about policy breaks down as well. It becomes possible to have national political debates—even consequential, electorally significant debates—about questions where the premises are simply untrue.
That brings me to the real topic of this blog post: the Trump administration’s budget. Famously (in some circles, as discussed below), it does not add up, due to a $2 trillion double-counting of the already-wildly-inflated benefits of cutting taxes for economic growth. The question is how we should understand this crazy $2 trillion hole at the heart of the budget. One might criticize it as breathtakingly sloppy, or view it as an error. But in my view, that’s the wrong way to look at it. Mick Mulvaney, the budget director who shaped this document, knows what he is doing. He is aiming to specify the budget with exactly the right level of policy “seriousness” to satisfy non-experts—journalists first of all, and then indirectly their viewers and listeners and readers—that the budget document is credible enough to be taken seriously. The question is where exactly that line is. Just how much can you get away with? It’s possible that in this case Mulvaney may have miscalculated and overshot the mark. But that is the essential game: to make promises just serious-sounding enough that they avoid immediate disintegration under the most cursory forms of scrutiny that are possible within the constraints of the abilities and norms of the relevant journalists—and no more. That way you maximize the amount of good news you can credibly promise, and minimize the amount of bad news you must acknowledge.
More after the jump…
The budget the Trump Administration released this week—“A New Foundation for American Greatness”—laid down a marker of exactly how much seriousness is required. The answer is: very little. The budget would slash Medicaid, the disability insurance portion of Social Security (SSDI), food stamps, and the rest of the safety net for anybody under 65, along with pretty much every other part of discretionary domestic spending, and would then use this money primarily for large tax cuts for the wealthy not spelled out in this budget (and also, to a lesser extent, for raising military spending and building a border wall). Trump apparently decided that his campaign promise not to cut Medicare, Social Security, and Medicaid, applied only to Medicare and the old-age component of Social Security. But for all that, when combined with Trump’s separate proposals for large high-income personal and business tax cuts, this budget would have an explosive effect on the deficit. But not according to the budget document released this week.
Jonathan Chait and others saw the problem with the budget very quickly. To try to get journalists to see and pay attention to the problem, Chait framed it in very elementary terms, as a “$2 trillion math error.” Larry Summers, on his blog, perhaps more accurately but less pithily termed it “a logical error of the kind that would justify failing a student in an introductory economics course.” The problem is relatively easy to explain. (That makes it dangerous: journalists might actually pick up on it, and some have.) The Trump administration’s professed view is that their planned tax cuts will pay for themselves because of increased economic growth. Like so much about the Trump presidency, this takes us back to the 1980s, this time as farce: it’s a simple and direct retread of the Laffer curve. The $2 trillion math error is that the budget first counts the tax cuts as paying for themselves due to increased economic growth (calling them revenue neutral), and then holds that (additional?) increased economic growth (presumably from these same tax cuts, and perhaps also from other Trump policies) will also double American productivity growth, thereby raising total growth to 3% and erasing the deficit within ten years. Essentially, the tax cuts pay for themselves twice.
This should be embarrassing. But who am I to say that? I am one of those elite liberal wonky types who reads people like Jonathan Chait. It is only embarrassing to the Trump administration if voters think it’s embarrassing. That in turn depends on journalists, and because Republicans need some non-Fox-News-viewing votes in 2018, it depends in critical part on the “mainstream media.”
I think the Trump administration was counting on norms of journalistic role morality to carry them through. They knew that journalists would feel obligated to report the claims in the budget as at least serious, if not presumptively valid, especially in the initial flurry of coverage on the first day when the budget was released. There would be caveats and follow-ups, but the administration knew they could count, in the first instance, on coverage that would basicallystatethatthe administration has produced a budget that says it will get the deficit under control and indeed eliminate it within ten years, followed by some caveats about how “critics say” the assumptions behind this projection are too rosy etc. That is mostly what they got.
Now perhaps I’m making too big of a deal about a budget document that even some Republicans in Congress have declared “dead on arrival.” But I think that objection misunderstands what a budget document like this is for. It’s true that it’s not much of an intervention in the congressional debate about the budget. But it is a serious intervention in the national conversation about government, taxes, and spending. In other words, a budget proposal like this is a political statement, aimed not at Congress but at the news-consuming public. Its purpose is to communicate a sense of President Trump’s priorities. The question is whether our public sphere is in good enough shape that the internal contradictions in that message—cut the deficit, enact deficit-ballooning tax cuts—will be visible to voters. It’s pretty clear at this point that the answer is no. The root cause of the trouble is not simply the special case of Fox News. It’s the interaction of journalistic norms across the board with an administration that has discovered it can say quite a bit that is untrue before encountering any countervailing force more forceful than perhaps a “Critics say…”
The most hopeful thing I can say at this point is that this administration has staked out ground so far outside what has become normal practice that it is possible that journalists themselves will recalibrate their norms in response. Professional cultures are slow to change, for good reason. But it is possible that journalists may, in the coming months and years, begin to report more forthrightly that some things that government says are false, some of its premises simply resting on air. Paradoxically, this will seem to play into this administration’s hands, by spurring ever more charges of “fake news,” and deepening the adversarial relationship with the mainstream press on which this government thrives. It is also the closest thing there is to hope for a functioning American public sphere. Posted
by Joseph Fishkin [link]