Simulated Bipartisanship

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.



  1. Although your spin is creative(“It wasn’t REALLY bipartisan because, y’know, we were all so emotional“) I think that it’s prety hard to say it isn’t bipartisan now.

    The Act has been re-authorized several times. The last one had your hero’s signature on it. Want to explain that?

    1. As noted, though, it’s been substantially reformed. The FISA reform act passed in the runup to the 2008 election put a more responsible spin on PATRIOT’s destruction of the “Wall,” the Draconian nature of NSLs was scaled back, etc. It’s a different bill. I’m not thrilled that more wasn’t done to scale it back this reauthorization period, but one landmark piece of legislation at a time.

      1. The revisions have been window dressing and you know it. The key provisions that sent the ACLU and the Left into a tizzy (after they voted for it) are still in there. Wiretaps, information gathering, etc. The meat of the bill have remained unchanged and has the President’s blessing. I don’t know how you can claim it is NOT a bipartisan piece of legislation at this point. Democrats have endorsed it several times now.

      2. The Act’s been significantly trimmed. NSLs are less broad; FISA Wall is partially reestablished; roving wiretaps have significant safeguards now; etc. I’m going to need more than a feeling here to be convinced otherwise.

  2. It would be interesting if he’d been more specific about which particular “similar laws in Europe” he’s referring to and how PATRIOT is “considerably weaker”. Considering the significant constitutional and legal traditional differences between Europe and the US, I doubt such a straight comparison even makes much sense.

  3. I don’t know if I’ve brought this up already, but I still really think that if the tea party people were serious about the threat of encroaching government on their rights, they’d be fighting the Patriot Act tooth and nail now.

    Instead, I don’t really think most of their talk is sincere, and instead is just attached to basic Republican tenants.

    Which I find sad, because I hate how things like the Patriot Act, and other portions, are very new and really egregious acts by the government that are now seen as “normal” already.

    1. “…the tea party people…”/i>

      No capitalization? Et tu Oneiroi? C’mon, I thought you were better than that.

    2. Now I’m no big city lawyer, but I was taught that you don’t capitalize loose affiliations of people, but you do capitalize official groups within. C.f. “secessionist radicals” and “neo-confederates” with “Stormfront”; but see, “Neo-Nazis.”

      1. Ames – you’re just not even trying here.

        Civil Rights Movement?

        Progressive Movement?

        Environmental Movement?

        Shall I continue?

      2. Show me a post where I’ve capitalized those, and I’ll show you a post I’ll edit for typos shortly thereafter.

    3. I wasn’t actually thinking about it at that level. It wasn’t intentional, I wasn’t debating it before typing it. I didn’t think they were a ratified group or anything.

      Besides, I didn’t know you took them that seriously, Mike. I still think they’re an offshoot of the Beck mentality, which you disavow from conservatism.

      1. I take the sense of really being pissed off at the government that drives the Tea Party Movement seriously. It’s the latest in a long, long chain of populist movements that have defined the US pretty much since its inception.

        This particular movement is not one I identify with, but to be honest, I’m not really a ‘movement’ kind of guy.

        With all that said, I was really just giving you a hard way to go. Ames’ omission is intentional because he likes those kinds of little perceived political victories and he also subscribes to the Rahm Emanuel Weekly Tip Sheet for Obama Bloggers. Despite his poorly-reasoned claims to the contray, the term should be capitalized. The movement is named after a specific event which is capitalized in every history book I’m aware of. His lower-case usage seems to imply the movement is based on Earl Grey and cucumber sandwiches.

      2. Named after, but not heir to, a capitalized event, which is only capitalized when specifically referred to as The *Boston* Tea Party. And what do they have in common with the real, original Tea Party, apart from being angry?

        As to them being the heirs of populism,

        The motivating factor behind the various & sundry tea party groups isn’t some love affair with history — except to the extent that it’s a love affair with a history that never was — but a devotion to Lochner-style due process, which reads the due process clause as enacting objectivism, not brokering a peace between the majority and the minority. They’re entitled to respect neither from conduct nor from philosophy, and still, they’re not a unified group. Boo.

        1. ‘Named after’

          You just made my point for me. You’re wrong on this one Ames. Dozens of media outlets agree with me, including more than a few that I’m quite sure you consider to be solid resources. But hey, maybe Rahm will give you a groovy staff job at some campaign headquarters in 2012. Keep the faith!

        2. It’s unclear to me what you think you’ve proved.

          Other than that you find “dozens of media outlets” persuasive.

          1. When CNN, MSNBC, Time Magazine, etc all use the capitalized Tea Party…I’m going to take their opinion over someone who doesn’t even pretend to be non-partisan.

          2. Their incentive is obvious. If they treat the tea party groups nicely, they get better ad traffic. Media pandering isn’t evidence.

            1. Right, I’m sure that Time magazine’s editorial staff was told to do that so they could get more subscriptions.

      3. Again, i don’t care abut the capitalization at all. But I’m interested in, this movement which was advertised and attended by the conservatives of Fox News, which you said were not influential or important to the conservative movement. And complained everytime it was brought up by Ames. But suddenly this movement means something to you. So I’m interested in why?

        1. It only means something to me in the sense that it is an expression of populist anger. As an organized political faction that could affect future US elections, etc…I have zero belief that they will be more than a blip on the radar.

          Where I have been critical of liberals is in inflating the importance of the TP ad the spokepeople for the GOP. I don’t believe they reflect a majority opinion.

  4. It almost doesn’t matter whether tea party groups actually reflect the majority of the GOP – they act like they do, and the party encourages them in their thinking. That’s just as bad, from a responsibility point of view.

    1. Not really. The GOP encouraged the Religious Right to think they ran the party for about 20 years. It got them tons of votes and drove liberals bonkers, but at the end of the day, didn’t really affect policy proposals at all.

      It’s much the same way that Democrats appeal to blacks, environmentalists and the anti-war crowd.

    2. I kind of feel like the GOP feels forced to encourage and accept them. They have been so successful is because they put away infighting after the 1950’s…Republicans are now forced to either swallow them, stop them, or realize that they will be competition.

      “The same dynamic is evident in a March 25 Harris Poll, which looked at a hypothetical 2012 election. It found Barack Obama would defeat Mitt Romney 46-39 percent, but in a three-way race between Obama, Romney, and Sarah Palin as a tea party candidate, it turns into a 45-24-18 percent rout for Obama.”

      1. So the assumption is that the Tea Party would bleed off 18% of the vote with Sarah Palin. That’s, of course, assuming that she would run as a 3rd party candidate. I just can’t believe that would happen – I actually think she’s savvy enough to know she has it better staying a talking head. She’s a one-woman media empire right now. If she runs again and loses big, she might be toast.

        As for Romney – I’d be very surprised if he made it. I like Mitch Daniels if he can be persuaded and doesn’t have a mistress in the closet.

      2. In a battle between Sarah Palins’ intellect and her ego, I know what side I’m betting on.

      3. I don’t think Sarah Palin is actually quite as stupid as she seems. It’s just like Gretchen Carlson on FOX – a facade that appeals to the target segment.

        1. I would agree. I know how much money I make in a year and I know how much money she makes. In this life long-term success is rarely accidental.

      4. Yes it’s all hypothetical and way early. I’m not trying to argue against anything, just saying that it has to be a concern from the GOP, that the Tea Party will form it’s own coalition that would take away votes.

        It’s happened to the Democrats. Although, Nader still argues against it.

  5. “The GOP encouraged the Religious Right to think they ran the party for about 20 years. It got them tons of votes and drove liberals bonkers, but at the end of the day, didn’t really affect policy proposals at all.

    I feel the need to emphasize this, because it’s just so goddamn ridiculous.

    1. Let me rephrase that then. It didn’t really produce any results.

  6. Defense of Marriage Act? Partial Birth Abortion Act? State-law bans on gay adoption everywhere? I could go on.

    And if they didn’t accomplish anythign else, it’s not for lack of trying, and not for lack of a willingness to split the country in half to yell at minorities.

    1. DOMA was just that – a defense. It maintained the status quo – just like gay marriage and gay adoption bans. I’ll give you a pass on the Partial Birth Abortion Act but that had widespread support – it wasn’t just the Religious Right that wanted it. Come to think of it, all the examples you mentioned had majority support. It’s not as though some overly-vocal minority was getting legislation that the majority opposed.

  7. Also, if your rubric for whether the GOP was coopted by special, disivie, useless interests is “it was, and they tried to do bad things but failed,” well, that’s a terrible rubric, too.

    1. No – my contention is that the GOP co-opted them. Again – not unlike the way Democrats have handled blacks.

  8. My argument isn’t that DOMA etc were unpopular — though I’d dispute your characterization of them as enacting the status quo, given that no state affirmatively stripped married couples of their rights upon entering the state pre-DOMA; and whether or not gay couples asked to adopt, they weren’t foreclosed from it, before those bans — but that things like that completely supplanted the Republican agenda. Which they did.

    You’re going to have to explain the black thing, but I don’t think I’m going to like it.

    1. The point about blacks isn’t a new or original one, but no less true. Liberals rightfully gained their vote when Republicans punted on civil rights during the 1960’s. They kept their vote by offering certain social programs that appealed to them (welfare, section 8, affirmative action). But that was 40 years ago. Since then I don’t think the Left has really offered them anything of substance, but the maintain the illusion, thus securing their vote. Blacks know they aren’t getting anything but they the alternative (voting for Republicans) is unthinkable. It’s not different for the Religious Right.

  9. Guys,
    At the risk of being drug down – you are both right, you are both wrong, and its irrelevent. Politicians of all stripes are still, as they have been for most of my life – screwing the common man in the U.S. Conservatives seek to solve that one way, liberals another. Capitolizing (or not) the name of some fringe group doesn’t change the fundamental nature of the screwing.

    And Ames – blacks have been coopted by both political parties. If it were not so, largely African American inner cities would not periodically degenerate into zones of semi-lawlessness and poverty.

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