Might Elon Musk be personally liable?

I am not a lawyer. Thus the title of this post is a question.

But, as a layperson, it seem to me there's a pretty good case that Elon Musk might be personally liable for the damage he is causing.

There are contexts in law and life where we purposefully limit people's liability, because we believe it would discourage valuable activity if we held them liable for harms that might arise from their conduct. Corporations — and their progeny, LLCs, LLPs — limit the liability of businesspeople, and importantly make possible low-information passive investing. If shareholders of a corporation were held "jointly and severally liable", as is the default for a business enterprise with multiple owners, it would be way too risky for ordinary people to ever hold a single share of, say, British Petroleum. Corporations also often indemnify board members and officers from any liability that might arise from performance of their duties.

The same concerns arise in government. The US Constitution explicitly immunizes Congress for its work. Courts have deemed it necessary that certain officers of the state, most controversially police officers, be understood to have "qualified immunity", so they can do their jobs effectively and without undue fear. The Supreme Court has recently (apocalyptically) determined that the President has at least a presumptive if not absolute immunity in His official acts.

However, by default, we are all potentially liable for our actions. Businesspeople have to perform certain legal formalities in order to achieve the protection of the corporate form. Even after they have done so, if they engage in serious misconduct or use the liability limitation as an instrument of fraud, courts may pierce the corporate veil and impose personal liability.

Government officials are no doubt protected by a variety of forms of immunity and indemnification from torts that might arise as a result of their work. But, obviously, for those protections to arise, a person must actually be acting as government officials. Some threshold must be achieved that marks their status as protected public official rather than ordinary private citizen.

Even among bona fide government officials, if they use their access to the accoutrements of the state in a manner not authorized by law and clearly beyond the scope of their official role, then surely they are liable. If an off-duty FBI agent on a personal vendetta shoots up your truck with her Glock, the fact that the Glock was issued to her by the government does not shield her. A stalker who works for NSA is no less a stalker for having abused the tools at his disposal to spy on you.

Elon Musk is creating a lot of concrete harm for a lot of people. Every sack of USAID food stuck now in a warehouse somewhere would have been feeding someone, but for his intercession. People's children are going hungry and perhaps dying. People on experimental courses of treatment have lost medical supervision. These are serious harms.

Closer to home, Musk is likely substantially responsible for uprooting workers at USAID and placing them unlawfully on indefinite administrative leave. Repeating a move he perfected at Twitter, it was apparently Musk who introduced disruptive changes into the terms of employment of tens of thousands of Federal civil servants. These too are serious harms.

Dangerous intrusions into the privacy of American citizens and businesses, apparently at Musk's direction, have already occasioned lawsuits and injunctions. If our private information has been pilfered by Musk, was he properly acting as an agent of the state?

With respect to civil servant employment, commentators have warned that the terms of the "buyout" offered apparently at Musk's behest might be unenforceable by the courts because they had not been lawfully authorized and so no cognizable contract with the American state exists. If that is correct, if Musk caused the issuance of documents that appear to be contracts with the state but in fact are not, wouldn't that constitute a form of fraud for which he could be personally liable? Let Musk, personally, pay until September whoever takes up those offers.

Musk allegedly does have some sort of formal state affiliation now. He is a "special government employee". Special government employees are usually outside experts who serve temporarily in advisory roles. They face fewer ethics and conflict of interest rules than an ordinary Federal employee. The theory, I guess, is that it shouldn't be burdensome when government officials need to tap outside expertise, and an advisor cannot directly abuse power. Whatever actions result from an advisor's work will be ultimately undertaken by an accountable permanent employee.

Does this status occasion any form of immunity? If so, what are its parameters and limitations?

We do not know when Musk actually obtained this status. Did he improperly direct elements of the state prior to being granted formal status, in ways that may have caused serious harms?

Once this status existed, if such a person arrogates to himself a role of directing state action rather than advising, if he then directs state action that is in contravention of law or lawful procedure, how is that different than our FBI officer shooting up someone's truck in a personal vendetta? Sure, instrumentalities of the state would have been used by a sometimes immunized official. But the person would have been doing things that are unauthorized and unlawful and entirely out of scope from the formal position they have been granted. Would general statements of the President's support for the officer, or even specific support after the fact, immunize our FBI officer? It seems unlikely that the President directed Musk's actions, in their particulars and in advance.

The President of course can pardon Elon Musk with respect to Federal crimes. But the President cannot pardon civil suits, even those that arise under Federal law. The President cannot pardon civil suits or criminal prosecutions at the state level. By bullying civil servants into fake contracts, Musk has arguably perpetrated fraud against people who live in lots of American states.

Musk is best understood not as an instrumentality of the new administration, but as an agent who — in his personal capacity, in pursuit of his own commercial and ideological interests — has usurped control of instrumentalities of the state. He may have lacked sufficient status, authorization, scope, and adherence to lawful procedure to render him entitled to any form of immunity for the vast, foreseeable, preventable harms that his actions have caused.

I am not a lawyer. But Musk should be personally liable for the wreckage he so carelessly has wrought.

draft by Steve Randy Waldman
2025-02-08 @ 04:25 PM EST

Hard information, soft information, groupthink, corruption

I use the term "soft information" quite a lot, but I think it's unclear to readers what I mean, and what "hard information" would by contrast mean.

"Hard information" (think "hard data") is often taken to imply true or accurate or reliable information. That is very much not what I intend when I use the term. Usually when I am writing about hard and soft information, I am advocating greater reliance upon soft information, or lamenting our institutions' inability to make use of it. That'd be pretty dastardly, if by hard information I meant good information and by soft information I meant bad.

My definition of "soft information" comes out of the banking literature I once studied as an abortive finance grad student. It's kind of a puzzle, I was taught, that banks even exist. Finance types, or at least finance types of the still very neoliberal aughts, treated markets as the best information aggregators the humans ever invented. Loans are marketable. When you and I want a loan, why don't we just issue a kind of personal commercial paper, and let potential lenders bid on the debt, establishing our market interest rate?

Okay, you and I are small potatoes, so maybe "frictions" in issuing marketable securities explain why personal loans don't work this way. But businesses take bank loans too, sometimes pretty big ones!

The traditional resolution of this puzzle is "soft information". A bank has intimate information about the businesses who bank with it. It can observe a whole arc of history, how revenues flow and how stable or unstable they are, how reliably the business pays its bills and what kind of cushion it maintains. Bankers often know the principals of their business customers personally, and develop opinions about their character, which J.P. Morgan himself, um, characterized as the most important information in a credit decision.

Some of the information bankers superintend can get aggregated into a credit score — hard information! — but much of it is simply not accessible to the rest of the market. Evaluations of character in particular depend upon personal contact, and are ideally drawn from longstanding, continuing, human-to-human relationships.

So, the theory went, banks exist, or at least exist as lenders to business, because bankers can outperform markets in pricing debt, because they have superior information. Bankers have access to all the same "hard information" other lenders would have, but also to this "soft information", available only to them.

If soft information is information only available to a particular party by virtue of its relationship with the subject of the information, by virtue of its situatedness, then hard information is information whose content and provenance is accessible to everyone, information that is unsituated.

A score issued by a credit bureau is "hard information" because every potential lender can access it and observe the same value. Although the reporting that informs the score is private, the procedure by which the scores are computed is broadly public. Sure, details might be proprietary. Everybody understands that structuring the computation had to involve making choices that were discretionary, that might have been made differently. If you disagree with those choices, you might argue the scores are inaccurate. But the credit bureaus make those choices, and promise to perform their scoring consistently. Lenders accept the scores, and take them as a pretty good proxy for creditworthiness.

More than that, because everybody sees the same information, "hard information" can serve as the basis for public conversations in a way that a banker's soft information cannot. Civil servants and the interested public can deliberate and conclude that 620 should be the minimum score for a borrower whose loan will be purchased by a government-sponsored agency. We perceive this criterion as "objective". Since we will all have the same "hard information" about a given borrower, we can all evaluate whether they are eligible. J.P. Morgan might object that crucial aspects of character are not captured by the credit score. But we'd have a hard time structuring a national bureaucracy around information accessible only to people with personal relationships to the borrower.

But J.P. Morgan was undoubtedly right! If we could in some trustworthy and dispassionate way incorporate the experience of people who know the borrower best, we'd find plenty of cases where it would in fact be wise to lend to a person with a low credit score, and be unwise to lend to a person with a high score. But "we" constituted as a large bureaucracy — public or private! Bank of America as much as Fannie Mae! — have no such trustworthy means. "We" do not know the borrower. "We" do not know and have little reason to trust individuals from whom the borrower might solicit character references. Independently scouting such evaluators would be costly, and the problem of evaluating our putative evaluators' character is no less difficult than evaluating the character of the borrower.

So, in public discussion and in large bureaucratic contexts, we necessarily rely on hard information even though we understand it to be inaccurate. We acknowledge the information condensed into a credit score is imperfect. Nevertheless we often treat it as though it is the thing itself, rather than at best a noisy proxy of a thing we wish to measure. If there are two otherwise similar borrowers, one has a credit score of 550, the other has a credit score of 650, we lend to the latter because she is "creditworthy", and deny the former because she is not.

The fundamental character of hard information is not "accuracy" or "quality", but its susceptibility to serving as the basis of social convention. We need to talk about things, to reason together, to decide together. Almost everything of interest to us is not directly accessible to our senses. Your and my "gut" evaluations would not be consistent with one another, could not provide a basis for consensus in our decisions. Often we have no perfect or even good measures of the thing of interest. So we invent something, as least-bad as we can. We make the arbitrary choices we have to make to define and structure a public measure, because something is better than nothing.

Fabricated hard information like this is everywhere. What's the "inflation rate"? The US Bureau of Labor Statistics does its very best — really! But it necessarily makes arbitrary choices, applies hedonics to commodities with quantifiable measures of quality but omits them for goods without, etc. The Consumer Price Index it publishes gives us "hard information" by which we publicly reason about inflation. But different choices might have been made than those BLS makes, and those might yield different numbers and very different conclusions, especially over long periods of time.

Has the "real income" of the median household grown over the last two decades? Under one set of numbers yes. Under another measure which, say, took into account the effect of income segregation on the affluence of neighbors as a form of housing quality, it might not have. Neither measure would be incontrovertibly more or less "accurate" than the other. But it's likely that one would become conventional, would predominate in public debate, would come to be taken as "the fact of the matter".

The susceptibility of hard information to convention, to standing in for fact, means that it often serves to engender a very authoritative kind of groupthink. The information, however well-intended its construction, will along some dimensions, for some purposes, prove inaccurate and inadequate.

Are Americans happy with their health insurance? After UnitedHealthcare CEO Brian Thompson was murdered, I saw incredulous responses on social media pointing to polling that said 81% of respondents rated their insurance excellent or good.

It's not a secret in everyday American life that a lot of people really hate health insurance companies. Insurers are perceived as making tragic situations even more miserable by virtue of the bureaucracy they impose on the sick and those who are forced to advocate for them. They are perceived as contributing to the death (murder?) of patients upon whose treatments they impose delays. Your cancer won't wait for prior approval. It's metastasizing while they mull.

Yet prior to Thompson's murder, this thing that everybody knows was largely inaccessible in policy-oriented conversation. Are people unhappy with their health insurance? The polling says no. You can bring in your anecdotes, how mad your cousin was, how your friend died after the imaging was delayed. But you could come up with as many stories of people having great experiences! The hard information says 81% of patients are happy with their insurance.

Thompson's murder has brought attention to some obvious-in-retrospect considerations. When we are judging the satisfactoriness of something, the intensity of dispreference of a dissatisfied minority can matter. Dissatisfaction on behalf of others' experience rather than ones own can be relevant. (There's a literal survivorship bias in polling customers' own health insurance satisfaction. A disproportionate fraction of people who personally suffered awful experiences are no longer around to be polled.)

We can construct measures that try to address these things. But we didn't before. Our conventional hard information blinded us. Data-driven groupthink laughed off claims that the experience of the insured was a burning problem. The policy community focused on universality rather than quality of coverage, and praised itself for the success of ACA on that score.

If hard information risks a kind of upscale groupthink, should we rely upon soft information instead?

Unfortunately reliance on soft information yields its own pathologies. When we rely upon information accessible only to particular people by virtue of their situation or perceived expertise, we cannot evaluate the quality of decisions. We open the door to unfairness in decisionmaking, sometimes intentional, often even when decision makers are doing their very best. Relying on soft-information decisionmaking risks corruption.

Most obviously, if someone is going to be trusted to make consequential decisions based on special information and judgment that others cannot evaluate or verify, who's to say the decisions aren't motivated by self-interest? On the basis of purported soft information, I lend the bank's money to my own friends and family more freely and at lower rates than to others. Perhaps by informal arrangement my own prosperity rises with that of my friends. Perhaps what I actually know, through my vaunted soft information, is my friend will make speculative investments with the money and cut me in on any gains, while she'll fail to repay the bank if things don't work out. If my cut will be big enough, the upside might be worth risking my job.

One might try to police conflicts of interest, ensure that whenever decisiomakers might have, or might even be perceived to have, a personal stake in the outcome, of course they should not be trusted to judge. But then you might condemn yourself to the worst of both worlds. You are relying upon a decisionmaker's purported special information while insisting she only decide under circumstances where in fact she lacks any special information. A perfectly ethical loan officer will have the bank lend to a person she has known forever and considers a friend in preference to others with "objectively" similar creditworthiness, if part of what she knows is that the friend would be mortified ever to default on a loan and would move heaven and earth not to. That's not a violation of the trust the bank has placed in her. On the contrary.

A worst-kept secret of finance is that the entire project of investment banking is built on managing, rather than eschewing, conflicts of interest. Top M&A firms do not compete on price, but on the thickness of their rolodexes and the trust they have engendered in the investment community. Firms looking to raise capital understand that bankers will offer access to good customers on sweetheart terms, at prices where there is still money to be made. They calculate the "money on the table" they lose from underpricing will be more than compensated by the number and wealth and quality of investors the schmoozy bankers bring into the deal. Perhaps this works out best for everyone. Firms raise more money than they would have via any alternative channel, and investors expect and get good deals from bankers they trust. Perhaps not, and one or both sides of the transaction gets told all this as a kind of fairy tale while they get screwed. The trouble with soft information is it's hard from the outside to tell. Often it's hard from the inside to tell!

In the United States, we reflexively equate "nepotism" with corruption. Opportunities should be distributed according to degrees, or exam scores, or some qualification that can be expressed on a resumé as verifiable, hard information.

But that's too easy, and dangerous. Nepotism can be wise, and not only for corrupt reasons. I may know about competences and character traits among family and close friends that no test score can easily capture. I might actually know my nephew is well-suited the job, even if his resumé is inferior to other candidates I know less about. If the job is high stakes and I set aside my soft information to go with the best resumé, I risk a consequential mistake.

The difficulty is that outsiders — and, in many cases, the decisionmaker herself — cannot easily distinguish between corruption and wise use of soft information. If I think, I love my sister and my nephew so I'll give him a great job, then hiring him is corrupt. If I know my nephew is ethical and hardworking and unusually insightful about exactly the sort of problems he will face, then hiring him may be wise. Of course, I may persuade myself of the latter when I am motivated by the former. And you, on the outside, have no way to tell which is which.

The "good government" impulse to avoid this challenge by relying on hard information only is not sufficient. Hard information is also imperfect. If I hire the best resumé from Harvard, I can justify the choice and no one can blame me, but it may well be entirely the wrong choice, if what we actually care about are outcomes. People who style themselves meritocrats like to imagine that talent is both abundant and objectively demonstrable. In many contexts, neither is true. Being precious about appearing above corruption can itself be a corrupt choice. I protect my own reputation at the expense of the cause I am pledged to serve.

Even when a decisionmaker uses soft information impeccably, when she makes the best choice possible given her full information set, soft information decisionmaking is susceptible to structural corruption.

I know, I know. That sounds like "critical race theory". Chris Rufo is going to come and destroy something else I love. But the mechanism is so straightforward even Chris could understand it.

A banker strives to make credit decisions as best she possibly can, with no bias whatsoever in terms of race or religion or nationality or other irrelevances. But our banker has her life and her own social circle. It is quite likely that her family, friends, and near acquaintances are not distributed among races and religions and nationalities in proportion to their frequency in the population.

When our banker receives a loan application from someone in or near her social circle, she has meaningful soft information that can help guide her choice. When she receives the same application from outside her social circle, she does not. Given two candidates who are in fact creditworthy, it's quite possible she will be able to recognize the quality of the candidate within her social circle, but be unsure of the candidate outside of it. Soft information decisionmaking introduces a structural bias towards choices that the decisionmaker has special information about, even though there may be equal or superior choices elsewhere. Our banker is making the best choices she possibly can, using all of the information at her disposal, but from the outside it will appear that she is biased towards the races, religions, and nationalities prevalent in her own social circle. It's the structure of her acquaintanceship, rather than any invidious discrimination, that introduces the bias.

So, where do we go from here? Relying solely on hard information does not in fact capture all of the good information that ought to go into making a decision, and leaves decisionmakers susceptible groupthink, mistaking conclusions drawn from flawed but conventional information sources for the best decisions. Relying freely on soft information renders it almost impossible to police corruption, and leaves even honest decisionmakers susceptible to personal or structural bias.

What to do? I hope to think more about this in future pieces, but a difficult truth is answers will themselves be context dependent. It takes soft information to design roles and incentives under which decisionmakers can fully exploit all the information at their disposal, neither falling back lazily to the most easily defended hard-information criteria, nor abusing (consciously or otherwise) the trust placed in their soft-information judgment.

What I hope I can convey for now is "evidence-based" or "data-driven" is not in fact a recipe for high-quality decision-making. High quality decisions in practice require recourse to information that cannot meet a standard of public evidence, and skepticism of information that appears to meet such a standard. That this is hard to discipline doesn't render it any less true.

draft by Steve Randy Waldman
2025-01-24 @ 10:05 AM EST

Segmentation fault

The politics of migration from poor countries to rich is structured by exploitation and segmentation.

For a migrant flow to be politically sustainable in the destination country, the migrants should constitute a labor force which

[exploitation] works under conditions that would be considered exploitative from the perspective of natives of the rich destination country (although not necessarily relative to the norms of the source country);
[segmentation] works under those conditions only in segments of the labor market that citizens of the destination country have effectively withdrawn from and ceded to migrants, so that the migrant flow doesn't undermine natives' bargaining power in their own labor markets.

When societies are unequal and divided, the incidence of the surplus from exploitation also becomes important. The case for immigration to natives is that "we all" benefit from exploitation of their labor. If the surplus value is thought to be captured by private bosses, rather than shared with the public in the form of low consumer prices or social democratic benefits, that will undermine the case for immigration.

Immigration from poor countries is not so controversial in places like the UAE or Singapore. "Guest workers" have extraordinarily limited rights. They work in roles that native Emiritis and Singaporeans understand as proper to immigrants and do not seek, and are widely understood by natives to provide benefits that are broadly shared. We live like kings because they work like paupers.

Immigration from poor countries becomes controversial in places where immigrants are, or are perceived to be, supported rather than exploited. Denmark might be an example. Instead of natives exploiting immigrants (popular!), immigrants are seen as exploiting or harming natives (not popular!).

Even when immigrants clearly do work under exploitative terms, immigration becomes controversial when migrants compete in the same labor markets as native workers. Then — even if "in aggregate" the destination country benefits from exploiting the migrant labor force — workers whose bargaining power is undermined become cross. Questions of the incidence of the surplus from exploitation come to the fore. Is immigration just a tool by which the rich get richer while immiserating and exploiting their own fellow citizens?

In liberal states and social democracies, many of us have high-minded ideals, and pretend that migration from poor countries to rich should be embraced on moral grounds, rather than on the basis of exploitation. However admirable those ideals, this often yields unsustainable policy and dangerous backlash.

Regardless of good intentions, migration yields its benefits and costs. Natives will in fact enjoy a surplus or bear a burden, the surplus from exploitation net costs of service provision and social disruption. Elements of society will experience an incidence of those benefits and costs, so even immigration that is net positive for natives may impose steep costs on certain groups.

Framing migration in moral terms invites overlooking unsupportable costs, or celebrating benefits that are narrowly captured by some natives while imposing costs on others. It's great to believe that accepting migrants from difficult circumstances is a moral obligation. But that doesn't absolve us of carefully accounting for the burdens and benefits of taking on that moral obligation. It doesn't excuse us from building consent for our choices among the democratic public, or from ensuring that any burdens and benefits are shared fairly, another moral obligation.

If you are "for immigration" in ways that don't seriously take these questions into account, you are for immigration only performatively. Those of us who do see immigration in moral terms should try to give immigrants as good a deal as is politically sustainable. That is, rather than try to maximize the surplus we extract from our immigration policy, as Singapore and UAE do, we should seek to vouchsafe from immigrants unmistakable benefits for natives, but for a limited tenure, while they "pay their dues". We must still exploit, enough that the migrant flow more than compensates its burden, providing natives with benefits that are widely recognized and broadly distributed. But once the cost has been covered, we can welcome them as coequal citizens rather than take them for all we can squeeze.

In the United States, we do not in our public politics think clearly about these issues. We put things mostly in moral terms, pitting cosmopolitan human rights against against communal rights to protect ones kith and way of life. Framing things in terms of rights, as always, prevents us from thinking clearly about trade-offs and compromises.

Nevertheless, over the years, the United States has found equilibria that quietly embrace the twin pillars of exploitation and segmentation. We criminalize a migrant labor force while winking at the businesses that employ them. The function of criminalization, of course, is not actually to prevent the flow of migrants, upon which many businesses quite depend. We criminalize in order to minimize the bargaining power of migrant workers, and maximize exploitation on behalf of natives. Spokespeople for industries like agriculture and meatpacking are quite candid that, absent this labor force, our food prices would be higher. (The cynical among us are left to wonder how much of this surplus from exploitation actually finds its way into lower prices for consumers, versus how much pads profits and managerial salaries.)

We all quietly understand that these industries are segmented. Hand-harvesting of ground crops is "work Americans don't want to do", which means it's work Americans would not consent to do at the wages and under the conditions that criminalized, exploited laborers accept. In exchange for cheap food, Americans withdraw from these labor markets, cede them to maximally exploitable migrants.

Exploitation. Segmentation.

We all understand this bargain, even if we pretend we don't. Democrats get performatively mad at mistreatment of migrant workers, but don't actually upset the apple cart. Republicans sometimes make a show of pretending criminalizing immigration means "really, no illegals". They quietly, quickly, walk it back.

For agricultural labor, we do have a more civilized alternative, the H-2A visa for temporary farm workers. It's conceivable we could expand this program to regularize the status of the people doing "work Americans don't want to do", exploit them just a bit less, but keep the basic contours of the deal in place. The H-2A program respects a labor market segmentation we as a political community have now tacitly accepted.

The H-1B program does not. The H-1B is for high-value white collar work that Americans broadly would love to do. It brings migrants from poorer countries under exploitative terms, because workers are placed at risk of losing immigration status if they lose their jobs. So H-1B workers tolerate wages and works condition less generous than native workers accept, or would accept absent competition or threat of replacement by H-1B workers.

Exploitation and segmentation are twins. If a class of migrants is not exploitable, then its labor needn't be segmented.

The United States offers a range of employment-based immigration visas, under which workers labor with roughly the same security and on close to the same terms as US citizens. More migrants come to the United States under these visas than via the H-1B program, with almost no controversy. These visas are extended to people who are expected to do high-value work. The work, and the taxes that result from it, are presumed to be contribution enough to the welfare of other Americans.

Employers like to pretend the H-1B program is used like the "Einstein Visa", as a way to recruit the most extraordinary foreign talent to play for Team America. But if that's the case, the appropriate visa is an employment-based immigration visa, not the intentionally precarious, notionally temporary, H-1B.

The H-1B program exploits the workers it recruits, but fails to segment the exploited workforce from native labor markets. We can argue about magnitudes, but this has the plain economic effect of reducing native worker bargaining power, and the predictable political effect of enraging native workers. One might conspiratorially attribute the allocation of H1-B visas by lottery rather than by salary not to poor design, but to the possibility employers value the program not so much for the employees it permits them to hire, but for its ability discipline labor across the salary spectrum.

On both moral and practical grounds, I favor more rather than less migration. I have a soft spot for the H-1B program, because I have friends who'd not be here without it. Nevertheless, it is a bad program. Accepting a class of immigrants on terms that render them exploitable relative to native workers without ensuring that the labor markets they participate in are segmented from the work natives pursue is class warfare.

The right way forward is to fold the H-1B program into employment-based immigrant visas. Existing H-1B holders should be able to trade their status for EB visas. Currently, roughly 140,000 employment-based immigrant visa are allocated each year. Including slots for professionals with advanced degrees, up to 85,000 H-1B visas are made available. We should just expand the employment-based immigrant visa program to 225,000 per year and call it a day.

American firms should indeed recruit the very best talent from India and everywhere. When they do, the American government should hand these remarkable people green cards, rather than hand their employers a weapon, a cudgel, a threat they deploy against both migrant workers and their native colleagues.

draft by Steve Randy Waldman
2024-12-31 @ 03:15 PM EST

Wreckresentative democracy, "Secret Congress", and bee-sting theory

“Wreckresentative democracy” is the name I’ve given to what stands in for representative democracy in the American system.

Rather than meaningful, collaborative, representation — which we do not and cannot have, when our “representatives” are charged with “representing” almost 800,000 randos — we content ourselves with constraining the assholes who pretend to represent us, by wielding a credible threat to “throw the bums out” if they do something we dislike. We don’t have representation, but we retain some influence by virtue of our capacity to wreck politicians' careers.

Most of us are of course happily, rationally ignorant of whatever our “representatives” are or are not doing. So how can we sustain any credible threat?

Human beings are wired for outrage and altruistic punishment as means of enforcing pro-social behavior. So while we remain rationally ignorant of most things our legislators do, including the “good things”, we are primed to sense scandal, betrayal, and to punish it.

The fact that the role of public participation in our democracy is almost entirely negative — we punish rather than guide — explains a lot about how our politics actually function. A few years ago Simon Bazelon and Matt Yglesias pointed out that while Congress often seems hopelessly gridlocked, a lot of constructive activity occurs in what they termed “Secret Congress” — when legislators quietly get together to hash out deals about issues with little public salience, outside of the spotlight of media and partisan controversy.

This makes sense in the context of “wreckresentative democracy”. Whatever action is taken on any salient, polarizing public controversy, it will create losers for whom the action will be a betrayal. It will create winners too. But most of the public will not perceive itself directly as winners. Losers will make a case to a mostly disengaged public that the legislation was an act of treachery. They will try to power up the wrecking ball of public revulsion, encourage coalescence behind an impulse to punish.

Legislators enjoy little electoral advantage from the engaged sliver of the public that perceives an action as virtuous, but faces a serious risk that the engaged sliver that perceives itself as losing will gin up an electorally dangerous reaction. Inaction is close to costless. Action on matters of open controversy is dangerous.

Note that this is a pathological result of “wreckresentative democracy”. It simply would not occur under genuine representation. In an actually representative system, constituents would not be 800,000 random citizens with widely divergent values and interests, but some much smaller number of people who actually share similar views that a representative could understand and advocate. The particulars of a legislative proposal might be obscure to constituents. Representation exists to absolve ordinary citizens of those details. But when a public controversy erupts, the position taken by a representative will be straightforwardly related to interests widely shared by her constituents. She might win or lose, but constituents would feel represented rather than betrayed regardless.

The gridlock we take for granted on matters of sharp controversy, the paradoxical result that “democracy” can only progress when it addresses matters the electorate is too ignorant much to care about, all result from the asymmetry of incentives built into wreckresentation, where constituents have little means to reward a “representative” but they can sure as hell punish.

Bee-sting theory is a name I gave to a view expressed by David Shor, that political parties are basically always punished for bold action. You might call it the opposite of "deliverism".

In Shor’s view, when a political party wins power, it can and sometimes should do big, important things, because that’s what political power is for. But like a bee choosing to sting, it is undertaking an action that will grievously harm it on behalf of some greater good. It should not expect to be rewarded, electorally. It should expect to lose, and should act only when the political cost will be worth it.

A common interpretation of the phenomenon Shor describes is status quo bias. "The electorate," intone sad politics-knowers, "often claims to want change but in fact hates to see its habits disturbed."

I think Shor is onto something descriptively, but the status quo bias story is wrong. There are times — not at all rare times! — when much of the public actually does want bold change from their government.

However, proponents of any particular bold change are mixed together in the same constituency with people who would absolutely oppose the change, and with a much larger group that has never given the matter much thought. In a genuinely representative system, people would have been presorted into constituencies that would favor the change and constituencies who wouldn’t, and enacting the change would not be electoral poison for representatives of the former. In our wreckresentative system, where people pretend to represent huge populations that are not meaningfully sorted, the bigger the change the more easily it can be spun to the politically less engaged majority, by those who oppose the change, as a terrible betrayal.

What looks like status quo bias in the electorate as a whole is not that at all. It is an artifact of asymmetrical incentives that "representatives" face due to how we have structured electoral and legislative institutions. An infantilized electorate without meaningful representation, with no real influence except its capacity to lash out, lashes out.

Although I have my fancier ideas, conventional multiparty proportional representation would go a long way towards fixing this.

draft by Steve Randy Waldman
2024-12-24 @ 02:30 PM EST

Wreckresentative democracy

There’s little meaningful "representative democracy" in a polity like the United States. There never really has been.

Your “representative” in Congress allegedly represents almost 800,000 people, people with whom you have nothing in common other than geographic proximity, if even that after all the oddities of gerrymandering. We teach our children we live in a representative democracy when the claim is very obviously absurd.

Europeans and political scientists may object that meaningful representation comes via the intermediation of political parties. Political parties are smaller, and by virtue of self-selection, more homogeneous than the polity as a whole. In theory, a person might be enfranchised within their political party by actively participating in it, and then be enfranchised via their political party in a parliament or legislature. Proportional representation means that all parties then are represented, according to their support within the population.

Regular readers know I strongly favor electoral reform to bring multiparty democracy to the United States. So far be it from me to piss too hard on this parade.

Nevertheless, even if we had six rather than two national parties, they would still, from the perspective of most citizens, be distant institutions run by insiders to whom most of us would have little access. Representation is a matter of degree, and multiparty parliamentary democracies do a better job of it than America’s destructive duopoly, but even in well-arranged parliamentary systems the claim a parliament is “representative” is a stretch.

What would it mean for a law-making body to be representative? What are we actually after?

Much as I am fond of sortition enthusiasts, I don’t think what we want is a representative sample in a statistical sense. Lawmaking is an activity most of us have little expertise or inclination toward. The whole point of “representative democracy” is to delegate the task to specialist-experts, who by definition are unlike most of the rest of us, who become even less like us by virtue of being formally employed as “representatives”.

In social affairs, statistical independence is the exception, correlation is the norm. The ways that specialist-expert representatives are different from the rest of us will bring divergences between that group as a class and the rest of our interests and values. There is no getting around this. If you choose legislators by sortition, they will be “representative” only until the moment they take their unusual job, school themselves in unusual skills, become overwhelmed by the generosity of well-wishers and lobbyists with whom ordinary constituents rarely truck. Representatives cannot be representative. Precisely because they are representatives, they are different.

I think that the version of representation we are after is the version generally provided by the legal profession. When we hire a lawyer, we don’t do so because we imagine that she is “like us”. We do so because we imagine that the skills our attorney could bring to bear would be effective at advancing our values and interests, if only she would wield those skills on our behalf. So we hire her, we pay her, to wield those skills on our behalf.

But in order for the arrangement to work, "we" — the people doing the hiring — must have a coherent set of values and interests she can advance. We must actively, persistently communicate to our attorney what those values and interests are. Her role is to listen and understand our interests as we understand them, help hone them into something actionable and coherent, and then to develop effective means of advancing them. Although it is not her role to gainsay what we understand our own interests to be, it very much is her role to provide expert feedback about the relationship between various tactics we might consider and the likelihood of actually advancing those interests.

Effective representation doesn’t come from who our attorney is. She is nothing like us. Effective representation results from an active collaboration between the represented and the representative, and active supervision by the represented.

In status quo American democracy, this kind of representation certainly does take place. But the “client” cannot be the electorate that gave our representative her perch. The very idea is incoherent. Those 800,000 people disagree among themselves, often strongly. They do not share the same values and interests.

No, election as a representative doesn’t in practice mean a person represents the incoherent mass that is “their constituents”. It simply places a person in a position where they can choose what values and interests actually to represent. Some people who are elected have strong allegiances to a preexisting set of values, and they work to advance those, collaborating with people they understand to be important proponents of those values. That sounds noble, but keep in mind the values to which they are so strongly committed may be diametrically opposed to those of a significant fraction of their constituents, who are left not unrepresented, but anti-represented.

Most electeds are more pragmatic. They effectively sell their advocacy in the same way that a lawyer might. Election simply places them in a position where they have something valuable to offer in the marketplace that otherwise they would not have.

In any case, there is no meaningful collaboration with and supervision by “their constituents” as a whole. There cannot be. Constituents do not share a coherent set of values and interests that anyone could collaborate to advance.

If we want meaningful representation, we would have to move towards a very different system, something like mass representative democracy. But we are very, very far from such a thing.

This has been a pretty bleak presentation of status quo representative democracy. I think accurately so! One reason why people are not so exercised to save “Our Democracy” is because most of us do not perceive ourselves to be meaningfully represented in the democracy that we are supposed to save.

And yet.

The actual practice of American-style “representative” democracy is somehow a lot more open, a lot less indifferent, than the picture I’ve painted. Representatives do not and cannot meaningfully represent the mass of their constituents, no. But they are nevertheless desperate to be liked. They cannot represent, but they still have to win the next election if they are to keep their job and the opportunities it brings.

So in lieu of representation, we get pandering. Our representatives publicize the least contentious things they do, tell us in our newsletters how hard they are working for us, bend over backwards to offer “constituent services” in order to communicate that they are on our side. In safe partisan districts, we get fairy tales of heroes and villains, in which Our Noble Representative stands up to the corruption and perfidy of the Bad Political Party.

Elected officials’ desperation to be liked offers a back-door simulacrum of actual representation. We cannot collaborate with our representatives to affirmatively advance our values and interests. But we can threaten punish them when they work against us. We can badmouth them, run ads against them, primary them. We don’t have representation, but we have “wreckresentation”. We can’t make them work on our behalf, but often we can frighten them away from working against us. Not always. Where controversies are aligned with partisan allegiances, representatives in non-swing districts can safely choose their party’s side with little fear of punishment. But when a representative might wish to work against a faction in their own party, or take a position on a controversy not yet calcified along partisan lines, they risk being villainized, demonized, becoming unliked and electorally vulnerable.

The system feels “open” because even though we cannot gain representation, our “representatives” assiduously crave our approval. It’s not enfranchisement, but flattery can be a consolation prize. We do have some genuine capacity to manipulate elected officials, by threatening to render them dislikable. That’s not representation, but maybe “wreckresentation” is the next best thing.

It may be over, however. “Wreckresentation” is becoming professionalized. AIPAC, of course, has been a pioneer, systematically surveilling American politics for dissidents against their version of a pro-Israel position, in order to disparage and destroy electeds who fail to toe the line. This cycle, the crypto industry adopted the same playbook. And Elon Musk, whose brave new scale of expenditures dwarfs all who came before, now threatens in general to wreck the careers of anyone not with his program.

The desperation of elected officials to be liked, their fear of scandal, is the heart of what’s left for ordinary Americans to perceive as “our democracy”. We don’t have representation. But we do have the people we elect constantly pandering to us and currying our favor. As the fear of organized interests comes to overwhelm concerns about pissing off random groups of constituents, as more and more it is Elon Musk rather than constituents whose favor must be curried, this last affective vestige of “democracy” may too, like so much else, wither and die.

draft by Steve Randy Waldman
2024-12-20 @ 01:25 PM EST