The Weak Man Fallacy

Is paranoia and militancy the core of the Tea Party Movement? In the context of my recent foray into the Tea Party movement, I’ve been thinking recently about fallacies and bad critical thinking in the public sphere. My friend Robert Talisse has an article with Scott Aikin that I think all philosophers should read. In it, Talisse and Aikin propose a variant of the “Straw Man fallacy,” the “Weak Man.” The Weak Man fallacy doesn’t misstate a rival’s position like a ‘straw man,’ but instead

chooses the opposition’s weakest (or one of its weakest) arguments or proponents for attack.

Talisse developed an account of this fallacy in an article in Scientific American, “Getting Duped: How the Media Messes with Your Mind“:

Weak man tactics are harder to detect than those of the straw man variety. Because straw man arguments are closely related to an opponent’s true position, a clever listener might be able to spot the truth amid the hyperbole, understatement or other corrupted version of that view. A weak man argument, however, is more opaque because it contains a grain of truth and often bears little similarity to the stronger arguments that should also be presented. Therefore, a listener has to know a lot more about the situation to imagine the information that a speaker or writer has cleverly disregarded.

The problem is that there are always both strong and weak interlocutors in the electorate. There are a lot of crazy, wrong, and stupid people in the United States. Should bloggers and scholars devote their energies to responding to them? Or should they respond to the strongest, smartest, best proponents of a policy with which we disagree? Continue reading The Weak Man Fallacy

Pre-9/11 FISA Violations and Retroactive Telecom Immunity

I’ve not seen much mention of one of the most important complaints about the FISA reauthorization: the claim made by Joseph P. Nacchio and Qwest Communication International that the Bush administration sought the power to engage in warrantless wiretapping in February of 2001, seven months before the events of Semptember 11th and the Authorization for Use of Military Force against Terrorists of September 18th. Of import to Barack Obama’s supporters (Mccain having skipped the vote) are Cass Sunstein’s deliberations on the matter, because he was reputedly a key sounding board for Obama as he decided how to vote. Sunstein, and eventually Obama, too, assumed that the FISA violations occurred after the the sweepingly broad legislation was passed authorizing President Bush to use military force, and presumably military intelligence,

to deter and prevent acts of international terrorism against the United States.

Thus, the legal question facing telecoms as they decided whether to help the administation spy on Americans was believed by many, including key legislators, to be a question of resolving a potential conflict between an old statute, the Foreign Intelligence Surveillance Act, and a new and remarkably urgent statute authorizing war-in-practice-but-not-in-name, i.e. military force.

In that case, there would have been a genuine question for the telcos about what the right thing to do was: the right legal thing to do, and, despite the outrage, the right moral thing to do, since it’s implicitly immoral to retreat to legal abstractions when your countrymen are being attacked. If the question is merely post-9/11 and post-AUMF violations of FISA, it’s not clearcut, and the grant of immunity largely appears to respect the deeply ambiguous moral and legal choice the telcos made, and, moreover, were forced to make without vetting the question publicly or bringing in external legal counsel due to the supposed ‘security’ concerns.

However, if the claims made by Nacchio and Qwest are true, then the Bush administration was building an extrajudicial wiretapping program almost from the moment it got into office, and with no specific legislation that even suggested the possibility of overriding FISA. That would be a case of more serious malfeasance, and it’s one that we might want to investigate further. Yet it’s hard to see how telecom immunity will assist that investigative goal. It’s one thing to say that we ought not to scapegoat the telecoms through civil liability for the executive’s crimes, but it would be nice to see the results of discovery in all those civil suits, which would presumably involve letters, memoranda of understanding, and minutes from meetings in which administration officials applied pressure to the telecoms to persuade them to break the law, without a terror attack on the horizon or any instigation but the 2000 election’s heavily contested change of regime.

What does it take for the massive federal bureaucracy to shift from a shaky mandate to the theory of the unified executive in so little time? What does it take to get massively cautious and litigation-shy telecommunication companies to sign on? What deals were struck? Who participated? Undoubtedly, these questions will loom larger when President Bush steps down and becomes the proper study of historians rather than journalists and bloggers. I’m sure American democracy will survive our brief flirtation with the Feurher principle. But as many people have pointed out, Congress declined to challenge the executive branch’s role in wiretapping with the new bill. In the process, they opening up major new loopholes for warrantless surveillance. Here’s the breakdown of changes, from Ketchup and Caviar:

  1. It Eliminates the requirement that there be probable cause that a foreign target is a suspect of any kind — terrorist, criminal, ore “foreign agent.” They merely need be your French grandmother, as long as they are outside the United States and not a U.S. person, and if the government says wiretapping them is for the purpose of collecting “foreign intelligence information” (e.g., her Pommes Frites recipe)
  2. It requires the cooperation of telecoms in these efforts
  3. It eliminates of the need to specify a particular email address or phone number to be wiretapped
  4. 1-3 together imply that certifications of wiretapping on individuals is not the issue. The point is to use telecom cooperation to target large collections of data on communications between U.S. Persons and foreigners. This implies data mining — where, for instance, because a foreign target has communications passing through a given domestic switch, any communications (domestic or international) passing through that switch are subject to collection, analysis, and storage.  There are “minimization requirements” meant to ameliorate this, but it is unclear if they really help.
  5. The compromise of domestic communications in (4) is exacerbated by the fact that targets need only be “reasonably believed” to be outside the U.S.
  6. It includes only minimal court oversight — who it is that is subject to warrantless wiretapping will not be know to the FISA court; the government can wiretap before it court order is sought and continue to do so even if it is denied — during a lengthy appeal process.

Inequality and Democracy

Back in January, President Bush gave a speech acknowledging that income inequality has been rising for the last 25 years. He attributed the cause to inequalities in education:

The fact is that income inequality is real; it’s been rising for more than 25 years. The reason is clear: We have an economy that increasingly rewards education, and skills because of that education. One recent study of male earnings showed that someone with a college degree earns about 72 percent more than someone with a high school diploma. The earnings gap is now twice as wide as it was in 1980 — and it continues to grow. And the question is whether we respond to the income inequality we see with policies that help lift people up, or tear others down. The key to rising in this economy is skills — and the government’s job is to make sure we have an education system that delivers them.

The president is wrong. Rising inequality is not primarily motivated by the certification gap or the skills gap, but by the regular application of policies making the intergenerational transfer of wealth easier to accomplish. But even if there are multiple causes, the results are untenable for democracy. Here’s why. Continue reading Inequality and Democracy

The New Executive Order: Cost-Benefit Analysis and Market Failure

I’m late in getting to this news, but on January 18th, President Bush amended Executive Order 12866 on Regulatory Planning and Review. The new order, EO # 13422, has some interesting and potentially troubling new provisions. Here are some links: pro, pro, pro, con, con, con.

Public Citizen identifies three problems with the new order, and I’m going to add a few more:

  1. “[I]t requires agencies to get White House approval of many important kinds of guidance for the public, which would allow the White House to create a bureaucratic bottleneck that would slow down agencies’ ability to give the public information it needs.”
  2. “[T]he new order stresses the concept of ‘market failure’ in its revised command for agencies to state justifications for new regulations for public health, privacy, safety, civil rights and the environment.”
  3. “[T]he order requires agencies to develop annual plans for upcoming rulemakings that identify ‘the combined aggregate costs and benefits of all … regulations planned for that calendar year to assist with the identification of priorities.'”

In addition to these, I’d add a few of my own:

  1. The President may not have the power to micromanage agencies empowered by Congress in this way while respecting the separation of powers. (Both the old and new Executive Orders may be unconstitutional.)
  2. This appears to add a good deal of red tape to the process of producing red tape. While that may seem appealing to knee-jerk libertarians, there’s no indication that this won’t just bloat the bureaucracy further. Sadly, most regulations are needed, and the market fails all the time. Perhaps, though, this process will give us more insight into just how it fails, and shut down the most egregiously bad policies before they’re enacted. It remains to be seen whether outlier regulations like will help pay for the cost of evaluating them all (a GAO study a few years down the road seems appropriate.)

Richard Belzer at Neutral Source disagrees with the first three explicitly. (He’s spent ten years at the Office of Management and Budget trying to regulate the regulators, so he’s understandably supportive of the whole scheme of executive oversight.)

  1. He points out that guidance documents are substantially identical to regulations, since they explain likely agency actions and reasoning to the industries they regulate. The Reagan-era Executive Order only covered actual rulemaking the agency engages in, but increasingly industries seek pre-ruling guidance in order to avoid conflict. The move from oversight over present rules to foresight over proposed new rules is not, he argues, a principled distinction. (This leaves open the question of oversight for regulations… but these agencies are under the charge of the executive branch, and their heads are employed at the pleasure of the President.)
  2. The language on ‘market failure’ is not new, though it may be given greater pride of place in the new text. Before, it was the first in a parenthetical list of possible reasons for regulation. Now, it’s the first in a non-paranthetical disjunct: regulation must be justified by market failure or ‘other problems.’ Again, this doesn’t address the question of whether agencies should be forced to answer to the White House.
  3. However, according to the plain text of the order, the amendments do not give anyone veto power over proposed regulation. Rather, it requires all agency heads to go to a meeting. That’s it: “The Director may convene a meeting of agency heads and other government personnel as appropriate to seek a common understanding of priorities and to coordinate regulatory efforts to be accomplished in the upcoming year.”
  4. Belzer is silent on the constitutional question, at least in these essays. I’ll just repeat my usual argument, which is that Congress arrogated their responsibilities vis-à-vis the administrative state decades ago. They’d have to work more than three days a week if they wanted to actually keep the government going themselves, so they’re content to leave it to various scientists, policy wonks, and efficiency experts. If the White House really wants to wade in and try to make sense of all that, I say let ’em. Maybe it’ll keep them from invading Iran.
  5. Belzer acknowledges that the new order “increases agencies regulatory planning obligations by requiring them to report estimates of the aggregate benefits and costs of regulations planned for the year. How much increase in analytic burden this imposes depends on whether the task is a clerical summation of estimates for individual rules (and now guidance) or it requires additional analytic effort.” How much is demanded is really up the executive in charge: if President Bush (or his deputy, Susan Dudley) doesn’t like the report, he can threaten to fire the head. That’s the extent of his practical power over these agencies; my bet is that most agency heads won’t make waves, so they’ll write whatever report Dudley wants.

None of this speaks to the desirability of cost-benefit analyses for new regulation, which in my opinion is quite high. Many people suggest that cost-benefit analyses deprioritize the intangibles, but I think it’s the opposite. When we finally understand the real costs of environmental pollution, for instance, we’ll quit polluting. The same thing goes for the costs of seat belts v. the cost of accident fatalities, the cost of accounting rules v. the cost of accounting corruption, ad infinitum. A good cost-benefit analysis is really about challenging our presumptions, looking at alternatives, and forcing us to weigh what matters to us. Public Citizen disagrees: “”These cost/benefit analyses are notoriously biased against regulation, especially long-term goals such as preventing global warming or cancers that manifest years after exposure to toxic substances. The upshot of this whole executive order is that the White House is already working to undermine not just agencies but also the new Congress’ ability to protect the public.” Maybe… but don’t blame economics for that: blame the White House.

That’s not to say that the next Administrator of the Office of Information and Regulatory Affairs, Susan Dudley, won’t misuse her influence in some way. Here’s some background on her: bio, pro, pro, meh, con, con, CON. (The last is a 68 page report put out by Public Citizen and OMB Watch.) Basically, she’s a free market ideologist: the new emphasis on ‘market failure’ is her baby, and she’ll undoubtedly nurture it for the next couple of years if she ever gets appointed. But she also looks like a crackpot, blindly opposing safety, financial, and environmental regulation that seems eminently reasonable to most people. These things are common sense to conservatives and liberals alike: air bags, banking privacy, regulations to prevent overfishing, or arsenic-free water. We all want these things. I don’t think she should be given a position of power for the same reason I wouldn’t give a hardcore Marxist an agency headship: ideologists lack the flexibility to be good administrators and managers. It’s worse in her case, insofar as she’s continually guilty of a basic logical fallacy. She regularly reasons like this: If people demand a safe or environmentally product, they will get it. This product does not exist. They do not really want this product. That’s a fine example of modus tollens, though of course it conflates the economic sense of demand with the common sense one. I may want to drive a car that is safe, but if I cannot afford one, economists do not count my desires as ‘demand.’

Dudley’s theory of market-failure, however, is not logical. She reasons: If the market has failed, we need government regulation. The market cannot fail: markets are self-regulating. Therefore, we do not need government regulation. Sadly, this is an example of denying the antecedent: If I’m asleep, my eyes are closed. I’m not asleep. By Dudley’s logic, therefore, my eyes are not closed. However, it is equally possible that I have blinked, just as it is possible that we make laws and regulations so as to register our demands as a people. Think of the government as an enormous Costco: we’re taking advantage of all the volume pricing deals to be had on safe roads, clean environments, and honest corporations and stock traders. The market may not fail in Dudley’s definition, but it regularly fails us. Markets aren’t nice: in a good market, rich people ‘demand’ more, and poor people ‘demand’ less: the market supplies them according to their means, not according to their needs. Yet even rich people can’t afford to pay Ford to build a car with seat belts if that requires Ford to retool the whole production line just for those few rich people. Markets suffer from a collective action problem: they are not always able to take advantage of economies of scale, and actually existing markets generally fail to plan for the future: they reward near-term profits, with which they hope to buy someone else’s innovations.

Nothing about what I have written negates the value of considering the costs and benefits of regulation. Men are not markets: we can think ahead, plan for uncertainties, and take lessons from the past in a way that the senseless beast of the market cannot. We partly inhabit markets, but we also have other identities. We evaluate cost-benefit statements as parents and partners, churchgoers and gardeners, sports fans and knitters, in other words, as citizens.