I used to look forward to listen to NPR

I appreciate your views. I do think that if we believe that our citizens want quality news, then producing quality news will be where companies can gain profits. If we release companies from being beholden to consumers or donors, it would seem they will still be beholden to something, even if it is just their own judgements. I don’t think this is necessarily bad, but I also don’t see what reason we have to believe the judgments of journalists are superior to those of the other citizens in our society. And again, I like NPR too, but I think NPR ultimately exists in its current form because other people like it too.

 

Except that democracy is suffering a market failure, to borrow an antitrust term. And to use an IT metaphor, the malware is disabling the firewall and counter-programs. The best philosophical argument for robust regulatory power is a counter-balance to corporate power that technology has enabled to rival the power of most governments - see Steve Coll's "Private Empire" as a clean example.

But realizing that is the countervailing power, big financial powers, now not solely interested in corporate power, disable democracy by compromising the courts and getting decisions like Buckley v. Valeo and its progeny, esp. Citizens United and even Shelby County (an indirect progeny on the way to disable democracy). When money is speech, literally, Madison's formulation breaks down.

This is nothing new - Mary Beard's SPQR covered that even under Roman Republicanism, money ruled. And we will never eliminate it's power. But when we declare unconstitutional any attempt to counter, we render Madison's mechanism an anachronism. The most paradigmatic example is 2011 Arizona Free Enterprise Club decision from John Roberts, in which Roberts opined for the Court that the if the state even matched private campaign spending without limiting it, that was unfair to the wealthy, who had the right to a financial advantage in elections.

Justia Summary


The Arizona Citizens Clean Elections Act (matching funds provision), Ariz. Rev. Stat. Ann. 16-940 et seq., created a voluntary public financing system to fund the primary and general election campaigns of candidates for state office. Petitioners, candidates and independent expenditure groups, filed suit challenging the constitutionality of the matching funds provision. The Court held that the matching funds provision substantially burdened the speech of privately financed candidates and independent expenditure groups without serving a compelling state interest where the professed purpose of the state law was to cause a sufficient number of candidates to sign up for public financing, which subjected them to the various restrictions on speech that went along with that program. Therefore, the Court held that the matching funds scheme violated the First Amendment and reversed the judgment of the Ninth Circuit.

Arizona Free Enterprise Club's Freedom Club PAC, et al. v. Bennett, et al; McComish, et al. v. Bennett, et al., 564 U.S. 721 (2011)

Whatever the situation was at the time of the Powell memo, we are so far the other way, with democracy disabled, that we can't even fight back.

 

I'm cynical, but I think for the majority of people who consume news (across the ideological spectrum), ideology outweighs quality.

 

I think I agree with you on some important aspects here. If a singular interest has captured multiple branches of our republic (e.g. media and the judicial system), then I agree we are in real trouble. However, I don’t see this so much as Madison’s formulation failing us, as us failing Madison’s formulation. Note the verb here: “Ambition must be made to counteract ambition.”

For me, if there’s a failure, it’s because we’ve allowed one interest to quell the others. Certainly this has happened on some regional scales, as your example shows. The goals of some interests will always include regulatory capture, and unfortunately some of them will succeed.

Now if this rot has extended all the way to the core of our democracy itself, then perhaps a Madisonian solution is indeed impossible. I hope this is not true, because if democracy can’t trusted, what options have we outside of authoritarianism?

I do think perhaps we haven’t quite run out of magic yet. While you seem to see corporate interests as a monolithic block, I see a diverse set of interests. For every Disney I see, I also see a Universal. For every Mobil, a Tesla. We can indeed never let a single one of these gain total control, but for now, each still seems to have private opponent, in addition to our diverse citizenry. At least I hope so.

 

There is some disconcerting evidence to back up your cynicism. Still, the problem doesn’t suggest an obvious solution. After all, if we can’t trust most people, who can we trust?

 

Ron DeSantis?

 

Sends tingles up my spine even with the emoji!

 

I'll just stick to one specific current example, namely the hack that business interests have developed/identified to be able to defeat any regulatory measure simply by filing in the right Texas District Court and getting a nationwide injunction on a minimal showing.

Lots involved in that. First you have to have reliable extremist judges. That has been accomplished both through the developmental process of the judicial minor leagues and "educating" those judges to make them think that their decisions are rational by overextending a lot of the law and economics reasoning that was useful when first developed in the Seventh Circuit with Posner and Easterbrook. But like so much of our intellectual world, it's become unmoored from empiricism.

But even with extremist judges, and even with the development of silly intellectual exercise doctrines such as the major questions doctrine and the nondelegation doctrine, you would still have a hard time selecting your judge and being certain that it would evade appellate review, especially with the extreme remedy of a nationwide injunction.

And shame and fear of legitimacy has made some movement. Perhaps the most valuable individual now in terms of trying to save some type of public interest in policy is former Texas and now Georgetown law professor Steve Vladeck. His book The Shadow Docket has sharply curtailed the use of the shadow Docket at the Supreme Court level, although they still use tricks to run out the clock like they're doing on the South Carolina voting maps to preserve Republican power even beyond with their ridiculous earlier decisions permit.

And the Judicial Conference of the United States recently issued some guidelines to try to avoid the blatant judge shopping that allowed a party to make national policy through one judge supported by a somewhat unhinged Fifth Circuit. Those guidelines are not binding are almost always followed. But the Fifth Circuit and the district courts in Texas basically said that they will not respect the guidelines and will continue to make nationwide policy in their courts. And the Fifth Circuit has been ridiculous in their use of administrative stays including trying to keep cases from being transferred out even when the law requires it. They are pretty clearly corrupt, although it may be just extremist intellectual corruption, and drunk on power.

All that is to say that the power public opinion has moved the High Court a bit but some interests are beyond the reach of public opinion. The Madisonian mechanism is broken, and has survived at least a couple attempts to fix it

 

Oh no, Tampa, you're going to get me fired up, and I'll start ranting.

 

Devastating Twitter thread that points out factually inaccurate claims Berliner made in the editorial in the OP:

 

Yea, the piece was so transparently inane and just a ticket to self promotion that stuff like this is shooting fish in a barrel

 

I definitely feel your pain on this one Tampa. Madison’s whole point was that we need to keep a single faction from owning the system that generates law or we will necessarily face tyranny. Indeed, the fifth circuit seems like an example of this. I appreciate your point that they might not be involved in a conspiracy as much as taken with intellectual extremism. In my view this is usually the case. Of course, this doesn’t excuse the results.

I don’t know how to fix this problem, but I do think we want to avoid having a “fairness committee” that assesses when legal panels are politically biased, as this just institutionalizes the incidental problem we are trying to fix. As you point out, we need oversight, but any body that has oversight will itself need oversight, ad infinitum.

 

The problem with so many "system failures" in the last 8 years is that we vest so many institutions with discrete mechanisms of discretionary power intended to be exercised with discretion. But then you have bad faith actors. It would have been difficult to foresee abuse of administrative stays or single district judges and nationwide injunctions. All arose out of relatively neutral policy considerations that were rational, standing alone. And then you have the Fifth Circuit being resistant even when they're called out by what is supposed to be a superior body, because that body doesn't have formal rule making authority.

Just like in the 45th presidency, we learned how many practices are what we thought were inviolable norms, but lacked the force of law. Especially if you believe the Unitary Executive Rule, which I do not. To make presidential elections matter, you want the newly elected president to be able to have some ability to redirect priorities in agencies, even the Department of Justice. In the past, there it's been more of an emphasis on prosecutions for certain drug crimes, healthcare fraud, etc., to enact the agenda of the newly elected president.

But now we have someone who says that he wants to direct prosecutions of political opponents without legal foundation, abuse the pardon power, and strip agencies of any veteran leadership and direct them to act contrary even to enabling statutes.

And the unitary executive theorists would say that the check on this abuse is impeachment. That sounds good in theory but is practically unworkable in today's environment. Violent insurrection, probably the most core violation of a nation that prides itself is being built on the rule of law, will not even result in impeachment and conviction.

I don't know the Republic can survive the next decade in any recognizable form.

 

Everyone has wrong beliefs, but I think a preemptive rejection is the wrong posture to take here. Berliner is an award winning journalist who has been at NPR for two decades. The former NPR ombudsman came out in agreement with Berliner’s take. Jonathan Rauch, a respected and insightful veteran journalist, wrote a few years ago in his excellent book The Constitution of Knowledge, that the problem of ideological alignment is now pervasive in American newsrooms.

Again, none of this is vindication of Berliner’s specific claims regarding NPR, but if minds as capable as these can be fooled by ideology, any of our minds can be. I’d suggest an alternative posture closer to, “I wonder why these people think this.” This kind of curiosity can help all of us see more clearly.

 

I would rather deal with his specific examples, which are objectively wrong, and his data, which is highly suspect, and even to the degree it's partially correct, is far easier explained by simple demographics than ideology.

Not to mention the personal incentive structure for a piece like this.

His argument is perfectly encapsulated in six words and an article of punctuation as formulated by Paul Krugman so many years ago about the need to ensure that a journalistic organization shows its lack of bias by giving credibility to both parties' views.

"Bush says Earth flat, views differ".

That would be a headline without journalistic bias as defined by this piece.

 

I would have been open to the assertion of a growing liberal bias at NPR, but he completely discredits himself with his feckless examples that actually demonstrate the opposite. For a guy that has the props and accolades he does to come up with that is embarrassing for him.

 

Excellent read. He should post here. lol

 

I'm glad the CEO of NPR isn't far left...

 

JFK on the phone reminding us we’re all Berliners!

 

Instead Of Introspection, NPR Suspends Veteran Journalist Who Called Out Partisan Trainwreck | ZeroHedge