How did I miss this? In a column late last week, everyone’s favorite historical revisionist, Jonah Goldberg, sets a new record for intellectual mendacity. He starts out with a fairly belated defense of the USA PATRIOT Act as (1) just about notification of search targets, (2) reasonable as “considerably weaker than similar laws in Europe,” and (3) harmless, because it was never used anyways.
It’s fascinating to see the rehabilitation of the Bush presidency beginning so quickly. It took decades for Joe McCarthy. But all of these points are just wrong. The PATRIOT Act went far beyond precedent, substantially rewriting FISA* and expanding both the scope and effect of “National Security Letters,” demands for identified documents or transactional records. Under the first PATRIOT Act iteration, you couldn’t even consult with your attorney upon receipt of an NSL — that went away pretty quick. The latter two points are off-topic. Since when did Goldberg care about European models? The new healthcare act (feels good to say that!) is “considerably weaker than similar laws in Europe,” but that hasn’t stopped the attendant Republican freakout. And, ignoring available evidence to assume, arguendo, that the PATRIOT Act was never abused, that still wouldn’t forgive the drafting of an act that authorized abuses.
But I digress. The heart of his column, and the real shocker for anyone with a basic knowledge of political science, is the assertion that the PATRIOT Act was bipartisan, rendering the corresponding Democratic response disproportionate due to the Act’s democratic legitimacy:
Unlike the Patriot Act [sic], which passed with overwhelming, almost unanimous, bipartisan support, the Patient Protection and Affordable Care Act of 2010 was passed narrowly, against the public’s wishes and in the face of bipartisan opposition. It will cost trillions of dollars we do not have. It gives the government greater say in the most intimate areas of your life, far more private than your library record. It is based on dubious constitutional assumptions.
It’s true — the PATRIOT Act passed by a truly absurd margin. But consider the time. The PATRIOT Act was introduced less than 50 days after the attacks of September 11th. Emotions were high. So high, in fact, that Bush enjoyed, and acted under, a hyper-inflated sense of popularity, and one that faded with full knowledge of his acts.
This is the “Rally ‘Round the Flag” effect. In times of national crisis, citizens in democracies are well-known to throw caution to the wind and support the incumbent’s policies out of a false equivalence between support for the government’s policies, and support for the government’s very existence. While the effect results in true choices, the choices are emphatically not rational, but inspired by fear or a simple desire to unite in the face of a bigger enemy. As the graph demonstrates, though, the effect is illusory, and fades with time. Bipartisanship is a proxy for consensus: with the Rally ‘Round the Flag Effect in full swing, though, the equivalence between votes and true consensus cannot be rashly presumed. Accordingly, Goldberg’s analogy, and the conclusion he hopes to draw about the PATRIOT Act’s comparative democratic legitimacy, must fail.
I’m glad Goldberg brings up the PATRIOT Act, though. One of the criticisms leveled with some frequency against Obama’s passage of the healthcare bill was that the bill was (1) too long, and (2) too quickly passed, without any chance for legislators to read it. Well, the PATRIOT Act was 340+ pages long. It was passed in two days. It’s an open secret that few, if any legislators actually read it before passage. If we needed another reminder that Republicans don’t play by their own rules, well, here it is.
* = Some of this was necessary. Yeah, I know, I’m a bad liberal, but tying authorization for taps to physical locations doesn’t make sense in the digital age and, because it doesn’t make sense, surely leads to more abuses, as authorities struggle for workarounds, than would occur under a properly drawn, limited statute.