Clause 61: The Pushback Blog

Because ideas have consequences

Interviewing Kellyanne Conway

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This video (6:31 long) from Vox was brought to my attention. It raises a number of interesting questions. Laid over with questions about Vox itself and the media in general, we have even more questions. It is a very layered story, and worth some time to dig through the various layers.

Let’s start with the subject at hand, then open the lens to the bigger picture.

Being a Representative

Conway’s role on these shows is to represent the administration. Within a circumscribed, forest-for-the-trees perspective of the role (more on that later), I think she does an outstanding job. She is determined and relentless. When she has a strong hand, she plays it; when she has a weak hand, she bluffs like crazy.

She knows that many of her interviewers want to pin her down. They want to face her. They want to force her to fold, to make concessions. She has no intention of doing that. It’s a test of wills.

I have some experience in representing myself; I represented a software company in sales efforts. Conway is a walking illustration of the very ethos of a successful software sales representative: “They promised you beachfront? You don’t want beachfront. Swampland is the future!”

Being Donald Trump’s Representative

Overlaid on top of this is the fact that she is representing the administration headed by President Trump. I don’t think I am being unfair to Trump by saying that this is no ordinary presidential administration. He consistently promised something out of the ordinary on his campaign, and he is delivering in abundance.

Given the nature of Donald Trump, the person, there are going to be some striking challenges in being his representative. For openers, he pops off at the mouth — or the tweet — much more than the typical organizational leader. Then his representatives have to go forward and try to control the damage.

I believe that Trump did not further his own cause by calling Judge James Robart a “so-called judge”, but he did. I believe that a more nuanced approach to the limitations of the press would have been preferable to calling them “The enemy of the American people.” But Trump doesn’t do nuance. We’ve had years to figure this out. The man is, as of this writing, 70 years old; he’s set in his ways.

So you, the representative, get the task of appearing in front of the press, who are howling like a scalded dog after having been called the enemy of the American people. You can’t unsay his remarks. You can’t disown them. You can’t cut and run. How are you going to navigate this?

So, yeah, Conway “reinvents Trump’s positions into more defensible versions of themselves.” How else would she keep her head above water? Jeff Lord has been doing the same thing as a Trump flack on CNN for the entire 2016 campaign. When Trump made totally outrageous, foot-in-mouth statements that would appear indefensible, Lord simply replaced them with positions from an idealized, Trump-like candidate that existed in his own imagination. What would you do on camera in front of a national audience? Concede the point? That’s not what you’re there for.

Some Perspective on Representatives

None of this is new; it’s just a matter of degree. The British series Yes, Prime Minister contained an episode titled “Official Secrets“, which first aired in 1987. Here is a link to the video. If you’re pressed for time, skip forward to about the 23:00 mark.

Bernard, what made you think that, just because someone was asking you questions, you had to answer them?
— James Hacker, “Official Secrets”

Further on, Hacker instructs Bernard in how to handle difficult questions. He has eight ways to defect questions. The net of his advice is:

If you have nothing to say, say nothing. Better still, have something to say and say it, no matter what they ask. Pay no attention to the question; make your own statement. If they ask the question again, you just say, “That’s not the question” or “I think the more important question is …” Then you make another statement of your own.
— James Hacker, “Official Secrets”

As a representative, you don’t have the option of having nothing to say. So you have to have something to say and force your will to prevail over the will of your questioners. Conway is very good at this.

So Why Invite Her?

The host of the Vox piece says at the end:

Just remember, she’s doing her job. It’s the news shows that keep booking her that are letting you down.
— Carlos Maza

Why do they bring her on? Part of it is the unwritten co-dependency story of how Trump got to be President in the first place. The news networks have 1,440 minutes a day to fill, 365 days a year. They’re crazy for content. They don’t know what else to do.

There is only one thing in life worse than being talked about, and that is not being talked about.
— Oscar Wilde

Trump has exploited this dependency mercilessly for his entire campaign. By saying and tweeting outrageous things, he dominated his opponents through airtime. While career politicians were cautious and scripted, Trump was spontaneous and outrageous. The received wisdom was that you couldn’t win an election doing that. Evidently, the received wisdom was wrong.

No, having flacks on a news show to evade questions is not helpful to us as citizens. It never was. The extremes of this administration just throw the issue into bright relief. Neither was having teams of opposing flacks to shout at one another and talk over one another during the 2016 campaign. Evidently, it is all the cable channels can think of fill time.

Journalists seem to think that the reporting of peoples’ opinions constitutes reporting facts. It may be a fact that the person you’re interviewing has that opinion, but it’s still an opinion. Postmodern journalism happened long before Donald Trump threw his cap in the ring.

Consider a real issue: last year, there was an announced change in Department of Labor policy that was later blocked by a federal court injunction. How much of this issue did you hear on cable news? How much did you read about it in your favorite print outlet?

Vox

The people at Vox are good at identifying behavior from Conway when it comes from people they don’t like, such as Conway. But do not lose sight of the fact that they have their own viewpoint to push — everybody does.

Some further reading:

What is Truth?

Most of us accept something called the Correspondence Theory of Truth. Simply put, if you accept this theory, than in order for a statement to be true, it has to correspond in some meaningful way to objective reality. This requires acceptance of a bundle of premises:

  1. There is an objective reality;
  2. We can know it;
  3. We can all obtained a shared common knowledge of it;
  4. We can take a statement and measure the correspondence with that shared common knowledge of reality, and therefore the truthfulness of that statement.

A full treatment of these implications is going to have to wait for another post, because this is a subject in itself.

It is clear to me, from his conduct, that Donald Trump does not subscribe to this theory. His truth is more pragmatic in nature: what is useful to me right now? This may seem shocking and even immoral, but it has an intellectual lineage going back to William James and Charles Sanders Pierce:

‘The true’, to put it very briefly, is only the expedient in the way of our thinking, just as ‘the right’ is only the expedient in the way of our behaving. Expedient in almost any fashion; and expedient in the long run and on the whole, of course; for what meets expediently all the experience in sight won’t necessarily meet all farther experiences equally satisfactorily.
— William James, Pragmatism: A New Name for Some Old Ways of Thinking, Lecture VI (1907)

So something can be true today, because it is expedient, and then untrue tomorrow, because it is no longer expedient.

I direct the interested reader to the entry from the Stanford Encyclopedia of Philosophy on Pragmatism for further discussion.

It is not necessary for Donald Trump to have read William James for him to think in this way. The notion has been rattling around out there for over a hundred years.

The question of truth introduces a professional challenge to the journalist: what are you reporting? The truth or someone’s truth?

For the journalist who does accept the Correspondence Theory of Truth, it presents also a personal ethical challenge: what do you do about this? Do the standards of journalism require you to refrain from inserting your own beliefs, or do you have an ethical responsibility upon to advocate your viewpoint as to the nature of truth?

It is clear that many of the people trying to get “the truth” out of Conway and those like her are not formally aware of these issues. They sense something is not quite right, but I don’t think they could articulate what the problem is.

 

 

Written by srojak

February 20, 2017 at 12:45 pm

Not My President

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This week, Georgia Democratic Congressman John Lewis gave an interview where he stated he does not sees Donald Trump is a “legitimate president.” Lewis gave as his reasons the alleged Russian hacking during the campaign, saying this “helped destroy the candidacy of Hillary Clinton.” Lewis went on to claim a “conspiracy on the part of the Russians and others” to tamper with the election, but did not identify who the others were.

To the surprise of no one, Trump responded with a series of two tweets criticizing Lewis. These tweets themselves became subjects of further reporting and kept the story hot. Over the past week I have read an entire spectrum of opinions over what Lewis said and how Trump responded. Here are my conclusions.

Political Legitimacy

John Lewis absolutely does have the moral right to reject the political legitimacy of Donald Trump. He has this right not because he is a congressman or a civil rights legend, but because he is a citizen. As long as we believe it to be true that the power of the government derives from the consent of the governed, the governed have the moral right to withhold that consent. The citizen can refuse to consent to specific actions or to the presence of specific office holders.

However, if rejection of political legitimacy is serious — if it is more than just a posture for effect — then it is an extreme position. Like going to war, a person who rejects the political legitimacy of an elected official must have strong reasons and, if he goes public with his rejection, he is obligated to articulate those reasons. If you are going to influence others to accept your position, there are going to be consequences for you and consequences for them.

Not liking the outcome of an election is not a valid reason to withhold legitimacy from the winner. It is a repudiation of the election process. Yes, the parade of claims that Barack Obama was not a citizen by birth was a lame attempt to do exactly this: to withhold legitimacy because people did not like the result of an election.

Yes, there is a lot to dislike about Donald Trump. If you want to say that he’s not your president, you have that right. But “a decent respect to the opinions of mankind requires” that you should have good reasons, reasons that are centered on actions.

If you want to refuse him legitimacy because he has never conveyed a set of principles other than his own self-enlargement that he really stands for, I can see your way to that. But I can’t go with simply not being willing to accept that your candidate lost. Back in the spring, my candidate lost and I got over it.

Instead of blaming the Russians, FBI Director James Comey and whoever else is handy, the Democrats would be best served by examining why their program and their candidate did not go over. Yes, I am sure it is painful trying to comprehend losing an election to this man. The truth hurts.

Is the System Rigged?

You could claim that Donald Trump invited this back in the general election campaign, when he claimed that the election would be rigged if he lost.

Of course there is large scale voter fraud happening on and before election day. Why do Republican leaders deny what is going on? So naïve!
— Donald Trump tweet during October 2016, reported by Business Insider.

So now let his intemperate words come back to bite him. Why shouldn’t his opponents also claim the system is rigged because they didn’t get the result that they want? I mean, other than the fact that he’s Donald Trump and they’re not?

Maybe this is what it is going to take to restore sanity; rash, ill-conceived actions have to have consequences.

The Great (Over)Communicator

Did Trump make a tactical error responding to Lewis and perpetuating the story? Did he make a tactical error attacking Khizr Khan for his speech at the Democratic Convention? Did he make a tactical error for his statements about Mexican immigrants in June 2015? The talking heads pontificate out how counterproductive his behavior is. I have yet to see actual negative consequences. Instead, he played the media like a calliope and obtained free publicity.

Donald Trump has successfully flouted decades of political wisdom.

Never pick a fight with people who buy ink by the barrel.
— Mark Twain

Politics is human beings; it’s addition rather than subtraction.
— Donald Rumsfeld

Using the orthodox wisdom, I thought Trump would flame out early in the primary season. I was wrong. I am not interested in continuing to repeat the same mistakes.

What is there to learn from this experience? The first thing to learn is the fact that nobody knows how long these tactics are going to work. Nobody knows whether this is a seasonal change or a fundamental change. The talking heads on television say that you can’t govern this way. But they also said you can’t win a campaign this way, and that assertion did not hold up.

Written by srojak

January 15, 2017 at 12:08 pm

Freedom from Choice

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Moral autonomy has been a central feature of Western thought since the Enlightenment. In the history of philosophy, the concept is usually considered to have been developed by Kant and further refined by Mill. Given the deep pluralism of belief begun with the Reformation and the Enlightenment emphasis on rational inquiry, I believe the development of a morally autonomous individual was a logical outcome.

Where personal autonomy is the ability to choose one’s own actions, whether moral or not, moral autonomy is the ability to conduct one’s own inquiry into moral behavior and determine for oneself the morally correct course of action. Individualism would not be possible without moral autonomy. Separate from these is political autonomy, which, since it concerns politics, applies to groups: a group having political autonomy can set its own political course.

Moral autonomy requires some discussion of the selfhood of the person involved. A key question is: Does an authentic self really exist apart from the society in which the person lives? A person who answers in the negative will likely emphasize belonging and relationships above individuality and autonomy. At the extreme end of this view, moral autonomy would not even make any sense.

Moral autonomy is also impracticable, if not unthinkable, in a clan-based society like Afghanistan. The individual who attempted to assert his autonomy would put himself outside the protection of his clan. He would be a target for other clans and anyone who wanted someone to pick on. His life would necessarily be solitary, mean, nasty, brutish and short.

Although Western thought has been very far-reaching, it is not universal. It has critics both inside and outside of Western nations. Furthermore, we now have a large number of people in the West who are unaware of the advantages that Western thought has conferred upon them and are not prepared to defend it.

Beyond this, there are seasonal tides that cause moral autonomy to be viewed differently through the decades. The 1930s, for example, were very collectivist years in history, and autonomy was under attack almost everywhere. Since 1960, moral autonomy has made an uneven comeback in the West, galloping forward in some areas while advancing fitfully and tentatively in others. Being aware of the history, one cannot simply extrapolate the continued advancement of moral autonomy without reversal into the future.

MacIntyre’s Objections

Irving Babbitt quoted a joke from the 1920s asserting that everyone would ultimately have to become either a Marxist or a Roman Catholic. Alasdair MacIntyre has done both, starting as a Marxist but later converting to Roman Catholicism and ultimately taking up a Thomist approach. MacIntyre is considered a very important communitarian thinker.

His first important major work was After Virtue (1981), wherein he asserted that the liberal Enlightenment project had failed and had done so necessarily, not accidentally. While After Virtue was primarily a criticism of where the Enlightenment had gone wrong, he provides hints of what he would substitute for it. Later writings, particularly Dependent Rational Animals (1999), advanced MacIntyre’s positive communitarian program.

Justice and Moral Anarchy

.. modern politics cannot be a matter of genuine moral consensus. And it is not. Modem politics is civil war carried on by other means …
After Virtue, p. 253.

MacIntyre sees modern liberal individualism having descended into emotivism, where there is no ground to reach agreement among partisans having competing moral claims. Although we engage in rational argument to persuade others of the correctness of our viewpoint, there is no shared moral basis to which we can appeal in order to serve as a foundation, offering mutually agreed-upon premises for persuasive argument.

Although the moral claims are advanced by persons, the partisans claim that their arguments are impersonal and even universal.

Yet if we possess no unassailable criteria, no set of compelling reasons by means of which we may convince our opponents, it follows that in the process of making up our own minds we can have made no appeal to such criteria or such reasons. If I lack any good reasons to invoke against you, it must seem that I lack any good reasons. Hence it seems that underlying my own position there must be some non-rational decision to adopt that position. Corresponding to the interminability of public argument there is at least the appearance of a disquieting private arbitrariness. It is small wonder if we become defensive and therefore shrill.
After Virtue, p. 8.

In a community of people attempting to reach political decisions in this way, they cannot do so on a moral basis, because they cannot achieve agreement upon premises. Therefore, resolution of disputes must in the end be a matter of which side has the stronger will and is prepared to use the least restraint in order that their will should prevail upon others not so minded.

An honest assessment of the events of the past year, at the very least, leads me to believe that the above is an accurate rendering of what we have come to.

The Telos

MacIntyre has a very direct writing style. Chapter 5 of After Virtue is titled, “Why the Enlightenment Project of Justifying Morality Had to Fail.” At root, he claims it had to fail because it disputed the idea of an ordained human purpose, a telos. A telos exists outside of human choice. It imposes ethical obligations on all persons, “just because you live here.” You don’t get to choose whether or not to morally accept it. You can always refuse to honor its demands, but you will be morally less of a person because of your refusal, and good people will shun you.

The assertion of a human telos is a direct attack on moral autonomy. Or, if you prefer, it is equally true the other way around: the assertion of moral autonomy is a direct attack on a human telos. The latter is the more historically correct, because that is one of the consequences of the Enlightenment. It logically follows from the Reformation: once there was no longer one monolithic authority — namely, the Roman Catholic Church — to interpret the telos, who was going to be in charge of the interpretation?

Dissent in Communitarian Societies

How does a communitarian society, which rejects individual autonomy, turn back when it starts to go wrong? The events of the twentieth century have demonstrated that organizations at all levels and scales, from clans to religious movements to commercial enterprises to political entities, are fully capable of going astray. To avoid this issue is to engage in philosophical negligence; it is simply bad risk management. There must be a framework for individuals to dissent from the decisions of the community on moral grounds and seek to have these decisions reconsidered.

The show trials in the Soviet Union in the 1930s were considered remarkable because the defendants willingly acknowledged their own guilt. Why did they do that? Why did they not defend themselves? Solzhenitsyn wrote that they had gone to a moral place from which they could not defend themselves.

And what did Bukharin fear most in those months before his arrest? It is reliably known that above all he feared expulsion from the Party! Being deprived of the Party! Being left alive but outside the Party! And Dear Koba [Stalin] had played magnificently on this trait of his (as he had with them all) from the very moment he had himself become the Party. Bukharin (like all the rest of them) did not have his own individual point of view. They didn’t have their own genuine ideology of opposition, on the strength of which they could step aside and on which they could take their stand. Before they became an opposition, Stalin declared them to be one, and by this move he rendered them powerless. And all their efforts were directed toward staying in the Party. And toward not harming the Party at the same time!
These added up to too many different obligations for them to be independent.
The Gulag Archipelago, vol. 1, p. 414; italics in original.

Without moral autonomy, it was not possible for any of the accused Communists to have an individual point of view, at least not in ethical terms. Without moral autonomy, who were they to oppose the community, even when the community demanded that they sacrifice themselves to it?

This behavior was not confined to communists. I have previously cited the example of Hindenburg. Once the German citizens really accepted “the conviction that the subordination of the individual to the good of the community was not only a necessity but a positive blessing,” they did not have a moral leg to stand on when that community chose racist and exploitive collectivists to lead them.

Virtues and Autonomy

The assertion of virtues with a prior moral claim upon all persons can only be squared with moral autonomy if all persons would somehow converge on the acceptance of these virtues. This was part of the great Enlightenment project. Kant hoped to resolve this with the categorical imperative, which American progressive education simplified to, “What if everybody thought that way?” He hoped that all moral and thinking persons, no matter their starting point, would be able to use this to reason their way to a common moral understanding. Kant both underestimated the potential scope of deep moral pluralism and failed to reckon with the ability of people to rationalize.

The discovery of a telos, a higher human purpose, which all persons could assent without compromising moral autonomy would be a worthwhile project, and I wish success to anyone who undertakes it. However, after all these years of life, study and experience, I doubt that it can be achieved. Where does this leave us?

I hear and acknowledge MacIntyre’s criticisms of Enlightenment inquiry and moral autonomy, but I am deeply skeptical of his program to address them. Individual moral autonomy is a supreme achievement of Western civilization. It is our front-line defense against mass movements that would lead us lemming-like to our destruction.

Supplementary Links

This discussion only scratches the surface of issues involving moral responsibility and political consequences thereof. For the reader having a deeper interest in the subjects discussed, here are some leads. One should bear in mind that any of these will be written by a person with a point of view.

Internet Encyclopedia of Philosophy

Stanford Encyclopedia of Philosophy

Written by srojak

January 1, 2017 at 12:42 pm

Interview with the Prosecutor

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Steve Heath was a prosecutor, working for two years in New Orleans and another seven in Dallas. He has been in the engine room of the criminal justice system.

I met with him to ask him for his perspective and to provide a perspective that we, as ordinary citizens, would never have on inner-city crime and justice issues. All quotes in this post are from him.

[The DA’s office] got Federal grants — Federal money — but all they were doing was hand-to-hand drug sales of punks on the street, mostly black, OK? And they got tons of Federal money. They never ever got beyond the street level and got somebody really big — a drug dealer or a money launderer …

The Federal government gives counties money to prosecute crimes. Two major areas Heath cited are drug offences and domestic violence. So where you pay people to prosecute, it is not hard to figure out that you are going to get more prosecutions. Are they valid prosecutions? Well, where are your controls?

Heath said that most of the people prosecuted for dealing drugs are just go-betweens that are lured in by the promise of easy money.

You could set those people up forever … The cop will come to [the kid], “I want to buy a certain amount of cocaine.” So he goes and talks to the kid he knows who sells cocaine.

“Can you get me more?” “Well, I guess so.”  [The kid says], “Hey, this is a good deal, I’m making money off this stuff.” He was never even inclined to do it before. They get him to a certain level, next thing you know, they’re recommending a four or five year sentence for him on the first offence.

Just as in any other human activity, the competence of prosecutors is distributed over a range. One of the characteristics that Heath observed to distinguish good prosecutors from time-servers was their willingness to do real investigative work and follow the leads to the ultimate sources of crime.

You can see how the prisons get filled up. Black kid gets set up, he gets probation, he makes a mistake and gets a dirty UA on his test, it gets revoked. Next thing you know he’s unemployed, he can’t get a job, what’s he gonna do? Next thing you know, they’re all in the prisons. It is kind of racist, so I thought, “Black people kind of have a point here.” [Prosecutors and cops] are disproportionately setting them up.

I don’t think police are doing it because they’re racists; [the targets] are just easy marks. You can get Federal money all there and set up all these people, you can get your stats up: “500 more convictions than last year! 10% more than when the prosecutor took over three years ago!” But that’s all they focus on.

Given the incentives, it is easy to understand the pressures on ordinary police. The prosecutor wants to run up his score and the Feds are offering money for which they want to see results. You don’t do this in leafy Deerfield, Illinois or Highland Park, Texas, where the kids have parents who will get lawyers and contest the cases. You need concentrated people who can’t effectively defend themselves. Those people are going to be living in cities and are going to be disproportionately black.

The prosecutors like the statistics, because they can wave them in front of the voters. The Feds like the statistics, because they provide reassurance that the grant programs are effective and the money given out is used effectively. But it is all bogus.

“Win 98% of our cases.” Yeah, you win that many because you never try any tough cases. You just set up these punk cases, that most of them plead out because they have no choice. That’s where I’m sympathetic with the black mindset, where what I call the “prison-industrial complex” where everybody makes a ton of money setting up people.

Heath also had some observations about police training. He strongly disliked the evolution of the shoot-to-kill policies in policing.

It kind of starts with — I can’t remember the Supreme Court case of 20-30 years ago, which basically allowed the use of force by the police if they felt their lives were in jeopardy. So that kind of opened the door, then they got a lot of governmental immunity. It’s hard to get these cases prosecuted civilly.

This article discusses the two cases from the 1980s that match up to Heath’s description:

They’re trained that, if their lives are in danger, you don’t shoot to wing somebody in the arms, or legs, whatever; you shoot to kill. So the training is bad, and frankly I think the training has gotten worse since Homeland Security money has come in here. It’s more like, police are starting to have their own mentality of fear and intimidation, rather than serve and protect.

He also observed incidence of what only can be described as overkill.

What bothers you is that they don’t just shoot them once sometimes. You see these videos, also — there was this impaired man in the street, and he got up and he had a knife. There were twenty cops surrounding him, and he got up and took two steps and all of a sudden fifteen cops shoot 38 bullets in him. He was not within thirty feet of anybody.

Heath noted that you don’t have to be black to get the short end of the fear-and-intimidation stick.

I was down in Austin and I made an wrong turn, and next thing you know a bunch of cops pull me over. I start to get out and there are three of them with guns pulled, screaming at me, “Get out of the car!”

Heath observed that there are energetic and lazy police just as there are in any other line of work. He placed his emphasis on the leadership positions; these determine what behaviors will or will not be tolerated, what training will be delivered and what culture will be cultivated.

You really need to work on fostering good race relations by listening to black leaders who are saying, “Why is it always the black kids you are setting up on all these drug charges?”

One of the side effects of the war on drugs is the feeding of what Heath calls “the prison-industrial complex,” likening it to the “military-industrial complex” that Eisenhower warned about.

It’s an industry. It’s cluttering our prisons. Get ’em on probation, revoke and then they can’t get jobs, they can’t get work. I remember the stats were, like, 70% of blacks between 18 and 34 — males — were in probation, prison or parole. That’s insane. Mostly for drug offenses.

He said that he had, at one time, been in favor of drug criminalization. His experiences in the cities had soured him on it.

The war on drugs has been a complete and total failure. They never try to go to the top. HSBC and Wachovia were both convicted of laundering massive amounts of drug money. Wachovia conveniently folded at the time, got bought up by Wells Fargo. HSBC, what’d they get, a billion dollar fine or something?

Here are some additional links relating to HSBC:

He supports community policing initiatives. He does not believe that the majority of police are abusing their authority, but those that are have an effect on public perception beyond their number.

They police officers need to walk a beat. They need to get to know the people in their neighborhood. They need to develop their snitches, their sources, their whatever. Get a pulse … They need to bond with the community.

Heath expressed the hope that we could get back to a serve-and-protect model of law enforcement that did not view the people in the community as adversaries.

Written by srojak

December 11, 2016 at 7:25 pm

Overtime Sudden Death

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This spring, while you weren’t looking, President Obama ordered the Department of Labor to revise the regulations governing overtime pay. Specifically, for an employee to be exempt from requirements to be paid overtime (often called an exempt employee), three tests are applied:

  1. Salary basis test: The employee must be paid a predetermined and fixed salary that cannot be reduced due to variations in the quality or quantity of work the employee performs. Hourly employees and workers being paid piece rates cannot be exempt.
  2. Salary level test: The employee must be paid at least a minimum amount specified by regulation. As of this writing, that amount is $23,660/year, last revised in 2004.
  3. Duties test: The employee must have duties that are primarily executive, administrative or professional.

The centerpiece of the change was a revision of the salary level test, bringing the threshold salary up to $47,446/year. These rules were to take effect on 1 Dec 2016.

I don’t have a problem with labor law in general or with revision of the salary level test in particular. I invite those readers who disagree to read a special section of this post I have included at the end to discuss the history of labor law.

It would have been better to have a multi-year incremental ramp. Businesspeople can handle predictable change much better than sudden change.

However, there was a significant process problem. Obama clearly believed that he could not obtain the consent of Congress. Being of superior intellect and wrapped in righteousness, Obama went ahead and issued a Presidential Memorandum — basically an executive order — directing the Department of Labor to go forward with the changes.

Obama may well have been right in his supposition. It’s irrelevant, because Congress is the entity empowered by the Constitution to make law. Consider, by way of analogy, if I were to say, “I would have asked you for money to feed the homeless children, but I knew you would never agree. So I took one of your checks and forged your signature.” Whatever my supposedly higher purpose would have been, my action would still not be acceptable.

Since those opposing the changes did not get the opportunity to have their views represented in Congress, they went to court. This week, a federal judge in Texas issued a nationwide injunction blocking implementation of the new rules. In his ruling, the judge found that the Department of Labor exceeded its authority under existing law and ignored the intent of Congress.

I find it particularly noteworthy that the primary plaintiff in the case is the State of Nevada, itself a government entity. The case raises challenges to the ability of the federal government to restrict the employment practices of state governments on Tenth Amendment grounds, although the judge did not accept this reasoning.

The proposed changes also include a mechanism to automatically update the salary level threshold every three years based on statistical data. The court found that there was no provision in existing law to implement this. Therefore, absent the expression of the will of Congress, the Executive exceeded its authority.

This decision is only a stay; the final fate of the change in law remains to be decided. However, one of the tests that the court applied was: Does the plaintiffs case have substantial likelihood of success on its merits? The court found that it did.

Special Bonus Media Question

This issue first arose in May 2016, when Obama issued his Presidential Memorandum. How much have you heard about this, before or after the court decision of this week, from the media outlets you frequent?

The Origins of Labor Law

One hundred years ago, there were few labor laws. Employers enjoyed concentrated negotiating power and could dictate almost any terms. There were widespread abuses, including:

  • Failure to pay employees on time;
  • Payment of wages in company scrip, which could either be redeemed at the company store for goods at arbitrary prices or exchanged at a discount for currency;
  • Implementation of arbitrary deductions from pay;
  • Failure to disclose deductions from pay.

“Well, if you don’t like it, don’t work for that employer.” This is a shallow and cavalier brush-off that ignores the disparity in bargaining power.

The Anglo-American legal tradition has not accepted such a principle. Here is an illustrative case in black-letter law. A railroad required its employees to sign contracts relieving the railroad of responsibility for the negligence of other employees (as the organization itself acts through the agency of employees, including managers and executives). The state supreme court rejected the notion that the employer could escape from responsibility in this manner:

And it may be questionable whether it is in their power to denude themselves of such responsibility by a stipulation in advance. But we prefer to rest our decision upon the broader ground .of considerations of public policy. The law requires the master to furnish his servant with a reasonably safe place to work in, and with sound and suitable tools and appliances to do his work. If he can supply an unsafe machine, or defective instruments, and then excuse himself against the consequences of his own negligence by the terms of his contract with his servant, he is enabled to evade a most salutary rule.

In the English case above cited it is said this is not against public policy, because it does not affect all society, but only the interest of the employed. But surely the state has an interest in the lives and limbs of all its citizens. Laborers for hire constitute a numerous and meritorious class in every community. And it is for the welfare of society that their employers shall not be permitted, under the guise of enforcing contract rights, to abdicate their duties to them. The consequence would be that every railroad company and every owner of a factory, mill or mine, would make it a condition, precedent to the employment of labor, that the laborer should release all right of action for injuries sustained in the course of the service, whether by the employer’s negligence or otherwise. The natural tendency of this would be to relax the employer’s carefulness in those matters of which he has the ordering and control, such as the supplying of machinery and materials, and thus increase the perils of occupations which are hazardous, even when well managed. And the final outcome would be to fill the country with disabled men and paupers, whose support would become a charge upon the counties or upon public charity.
— Little Rock & Fort Smith Ry. Co. v. Eubanks, 3 S.W. 808 (1886).

The spirit of this ruling cannot be ascribed to progressivism, as it predates progressivism. It was written in a time when judges were unwilling to rewrite the law. It stands as a historical marker, attesting that our legal tradition has never accepted an interpretation of laissez-faire that grants market participants with concentrated negotiating power free rein to impose whatever terms they choose on market participants with diffuse negotiating power.

Labor law originated in response to real abuses in the employment market. Abuses still occur, even with the laws in place. For example, I recall a software company in the nineties that would put salaried employees on a 36-hour week every time the owner got in a cash flow bind. That is not how being salaried is supposed to work. The employees may have made a calculated decision that enduring this was better than being laid off, but it is not OK. Tolerating this puts the competitor, who may also be in a cash flow bind, under unwarranted pressure to do likewise.

It is obvious to anyone giving this a moment’s though that employers can and do classify employees as salaried in the expectation that they will be working at least forty hours a week and that the employers wish to avoid paying overtime to these employees by making this classification. It is reasonable for the law to implement defenses to such reclassification practices, which are simply to evade compliance.

 

 

 

Written by srojak

November 25, 2016 at 11:06 am

Meritocracy and Its Discontents

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I have had a couple of signals that made me reflect on the influence of meritocracy, or what passes for it, upon current political events.

The first was an article this week, “What So Many People Don’t Get About the U.S. Working Class” by Joan C. Williams in the Harvard Business Review.

One little-known element of [the class culture] gap is that the white working class (WWC) resents professionals but admires the rich. Class migrants (white-collar professionals born to blue-collar families) report that “professional people were generally suspect” and that managers are college kids “who don’t know shit about how to do anything but are full of ideas about how I have to do my job,” said Alfred Lubrano in Limbo. Barbara Ehrenreich recalled in 1990 that her blue-collar dad “could not say the word doctor without the virtual prefix quack. Lawyers were shysters…and professors were without exception phonies.” Annette Lareau found tremendous resentment against teachers, who were perceived as condescending and unhelpful.
— Williams

The interactions that working class people have with professionals are a source of friction:

For one thing, most blue-collar workers have little direct contact with the rich outside of Lifestyles of the Rich and Famous. But professionals order them around every day.
— Williams

And the professionals are often not very gracious about it.

The other was David Brooks on Meet the Press this morning. He identified several items that he felt he needed to do some rethinking on as a result of this election outcome, and one of them was meritocracy. I realize that David Brooks is a subject of discussion all by himself, and I do not intend to venture into that subject here.

Two points define a line, and I starting thinking about that line.

Seniority

When I was growing up, seniority was much more important than meritocracy. There were many instances in the working world that were ruled by seniority. People didn’t care how smart or capable someone supposedly was; he waited his turn like everyone else.

Starting in the mid-80s, as the employment relationship began to be radically redefined in practice, seniority was displaced as a criterion for evaluation, advancement and even retention of employees. In the eyes of many people, this was a betrayal.

Certainly, the people who had put in the time and were due, under the seniority system, to finally get their reward had the rug yanked out from under them. But there was a larger issue many of us missed. One of the promises of the seniority system was that, no matter who you were, you had a chance to rise if you followed the rules and put in your time. A system based on merit does not offer this.

I acknowledge that I was not a supporter of the seniority system and was happy to see the back of it. I expected that I would prosper under a merit-based system, where I would be blocked under a seniority system. But there was another issue I had not reckoned with.

Who Determines Merit?

Those of us who come up through engineering, technology or other skill-based vocations often have several romantic notions about our participation in these vocations:

  • The difference between being good and being God-awful is reality observable, not only to ourselves but to others;
  • The difference we emphasize in skills should be emphasized by others as well, particularly by those who pay the bills.

An example of this is the saying that “a great software developer can be 10 times as productive as a bad software developer.” However, there is no agreement on what makes a great software developer, although there are plenty of ideas on what is a bad software developer. Furthermore, how many employers who are not in the software business could even take advantage of that incremental productivity?

The point we tended to miss was that merit was going to be determined by other people, often having their own agendas. While, under seniority, the criteria were out in the open, merit systems are wide open to manipulation by those in charge of the criteria.

The College Degree

When I started working, you could get a good job in a Fortune 500 corporation having a degree in anything. Sociology, comparative religions, art history — it really didn’t matter. You had proven you could adapt yourself to the standards of an organization and meet its requirements, and there was every reason to expect you would be able to do so again. The company would carry you for the two years or so you needed to unlearn the norms of college, learn the norms of the workplace and become a productive employee. People recognized that a college graduate was not a finished adult and employment was the final step in a person’s education, although they didn’t talk about it much.

The people you had to pass through to get that degree could be arrogant as all hell. How many people had to sit through classes by tenured teachers who were indifferent to whether they were even comprehensible to the students? “You have to get past us to get your degree,” their attitudes said, “and you will take anything we dish out.”

But, starting around 1985, corporate downsizing began in earnest. By 1990, there was more job growth in women-owned companies than in the large publicly-traded companies. The companies that were doing the hiring were smaller and didn’t have the slack to carry new hires for two years while they learned how to carry their own weight. With leaner management structures than the Fortune 500 had, there was no one to learn from. It was a completely changed work environment.

Among other formative experiences gone missing, there was no one to take a snotty 22-year-old aside and point out that, “your success depends on the voluntary cooperation of the people you clearly look down on.” There was no explain the facts of corporate life to people, the way my elders had done for me. If you withhold information from the new hire, maybe she will be behind you on the performance curve in the next round of layoffs. Now the forward edge of that age cohort is in their early 40s, working its way through management.

People still talk about college like it’s middle-class finishing school, but often it is not. Moreover, the role of the first employer in completing the young adult’s education has gone unfilled. The result is employers reluctant to bring in recent college graduates. Employers also find college graduates to be lacking in engagement. Thirty-five years ago, there were not an abundance of focused and driven college graduates; there was a system that could accept, steer and direct them. That system is gone.

I am not discussing the fact that the cost of a college degree has increased at twice the rate of inflation over the period because that increase in costs does not seem to have slowed down college attendance. There are more people than ever with whom one has to compete. A college degree is no longer a differentiator. What to do?

Credential-ocracy

When I started working, there was something called a Certified Data Processor. That was not a device; it was a credential. Many people I worked with lived in blissful ignorance of its existence. Those of us who knew about it didn’t take it seriously. Some people did, and obtained the certification. I never saw a job ad that required it, or even one that said “certification preferred.”

Now, credentials have exploded. The bad economy of the past 15 years scared a lot of people, who invested in credentials. Hiring is now completely credential-happy. People are even trying to float credentials for economists.

Yet success in obtaining credentials has not got any closer to success in applying knowledge to solve problems than it was in the early days of the CDP. I have worked with many people who want to use their credentials to build themselves into overhead positions as armchair quarterbacks, telling the rest of us how we’re doing it wrong. Just because a person has a credential, it does not follow that the person can use the body of knowledge for which the credential claims mastery to solve a real-life problem.

Paul Krugman offers specious, politicized explanations of where worker productivity went. I lived through the change, and I can tell you: when you’re carrying a whole lot of credentialed overhead, it won’t be good for productivity.

This was not the way we thought meritocracy was going to play out. Like a lot of the changes since 1985 — eliminating layers of middle managers springs to mind — this has been a massive disappointment.

Even when you win the rat race, you’re still a rat.
source unknown

What did we get from this supposed movement to meritocracy? The people who couldn’t keep up got pushed aside into the underemployment ditch. The rest of us got a treadmill of credentials and continuing education requirements, mostly at our own expense. We got a career tournament, a negative-sum game. We got a work environment where careers are mean, solitary, nasty, brutish and short.

 

Written by srojak

November 13, 2016 at 12:18 pm