Questions about Politics, Philosophy, and Math

In last week’s New Yorker, Jeffrey Toobin complains about the Supreme Court’s recent tendency to declare laws that restrict campaign financing (e.g. in Citizens United) unconstitutional. He argues that unrestricted campaign contributions and expenditures, while they may seem to be an example of free “speech,” actually “stifle public debate.”

He tells us how bad it has become:

A surreal moment during the Arizona argument summed up how peculiar the Court’s campaign-finance jurisprudence has become. Springing a well-planned trap, Roberts told the lawyer defending the Arizona law, “I checked the Citizens Clean Elections Commission Web site this morning, and it says that this act was passed to, quote, ‘level the playing field’ when it comes to running for office. Why isn’t that clear evidence that it’s unconstitutional?” To many ears, levelling the playing field hardly sounds like a sinister activity, worthy of the Supreme Court’s ultimate sanction.

Does this sound funny? Let’s try it on a different document. Imagine if someone had written this:

The Sharia Court judge ruled that, according to Sharia, Sally may not leave the house without wearing a headscarf. To many ears, leaving the house without wearing a headscarf hardly sounds like a sinister activity, worthy of the Sharia Court judge’s ultimate sanction.

Toobin, like the fictitious person who makes the above argument about Sharia, fails to draw the elementary distinction between whether an action is sinister, and whether it is proscribed by a document written hundreds of years ago. This would never fool us if we were talking about Sharia law, but apparently it fooled the editors of the New Yorker when in reference to the Constitution.

A rule of thumb I picked up at a young age is that, when tasked with critiquing someone’s interpretation of a document, I should make some reference to the content of the document. And if I wanted a good grade, I might consider including a quote. Here is Toobin writing for the New Yorker, nominally trying to critique the justices’ interpretation of the Constitution, and he makes no reference to the content of the Constitution. Instead, he distractingly tells us whether he believes a particular action allegedly proscribed in the constitution is “sinister.”

A commenter, O.Shane, disagrees with my assessment.

In the comments to my previous post, he says:

Jonathan,

The two cases (a tax credit vs. a government donation) can be mathematically equivalent, but they are not qualitatively equivalent, because intent and the identity of actor matter in the law. To indulge a metaphor, the matrix of the law does not retain the commutative property.

But, your perspective that the outcomes are so closely related that the method by which we reach them shouldn’t matter offers a different question.

What right does the government have to force citizens to pay for its schools (public schools by taxation) in the first place? And even if the state government has a minimum right to enforce a minimum level of education, why shouldn’t the parents be able to choose where that education lies and to pay for that instead? The alternative is that property owners pay for education, and if they are parents who prefer to send their children elsewhere, they would be required to pay for services they aren’t using.

It is Elena Kagan whose argument is pure sophistry. By pointing out the mathematical equivalence of the transactions, she is attempting to reduce the philosophy of government to an argument to a mere order of operations. It is not, and every Justice recognizes this. This is not an opinion, really, about whether a tax credit is functionally identical to a government payment. It is about who gets to decide what about the raising and education of children. [emphasis added]

The Court (at least 5/9 of it) has rightly determined that the decision is a local one, not a federal one.

O.Shane: You seem to have 2 basic arguments: 1) (argument expressed in your 1st paragraph) that in fact a tax credit and a government expenditure are different things, and should be treated differently by the law. 2) (argument expressed in part I’ve bolded) the justices are being disingenuous by debating the issue of whether a tax credit should be treated the same by the law as a government expenditure — you seem to be saying that they are using this as a proxy argument for what they really disagree about: whether parents should be given freedom about where to send their children to school.

Below I respond to these arguments in order:

1. In your first paragraph, you say “The two cases (a tax credit vs. a government donation) can be mathematically equivalent, but they are not qualitatively equivalent, because intent and the identity of actor matter in the law.” Suppose that a different state, e.g. New Mexico, had a scholarship fund that was exactly equivalent to Arizona’s scholarship fund, except for one difference: in New Mexico, the state Treasury just donates money to scholarship funds, using a partial matching system similar to the system that England uses, which I described in my original post. So in new Mexico, people who donate to the scholarship fund do not get tax credits, but the New Mexico Treasury, each year, takes the total private donations given to the fund, and matches 30% of them. (or you could make it more elaborate in order to make it exactly equivalent to the Arizona case, by having the matching percentage be a function of the tax brackets of all of the private donors, etc.). This case would be essentially equivalent to the Arizona case. Would you think that the Supreme Court should rule differently in this hypothetical New Mexico case, just because the state has framed it as government donations rather than tax credits, even though the two cases have the exact same effect on the residents of the state?

2. It seems that you believe that Kennedy has made the following assessment:

a) I do not like a world where parents cannot choose where their children go to school without being financially punished (here he agrees with both you and me)
b) Unfortunately, based on an honest reading of the constitution, the plaintiffs in this case do have standing to challenge the Arizona law (which I like, because of my opinion in a) above)
c) I’ll just pretend that b) above is not true, and decide this case based on the world I’d like to see, as explained in a). I’ll pretend that b) is not true due to a technicality (namely whether a tax credit is different from a govt. expenditure)

If this is an accurate representation, then this is judicial activism, and his written opinion is misleading.

As I mentioned I do agree with you and Kennedy in that I would prefer that parents be allowed to decide where to send their children to school, without having to face associated financial hardships. But I do not agree with the way that Kennedy arrived at his conclusion in this case. I’d prefer that he either a) be upfront about why he believes that the Arizona law is consistent with the Constitution, or b) make a decision that is consistent with the Constitution, but inconsistent with his own personal preferences.

The Supreme Court issued a decision (5 to 4) today that it is not a violation of the Establishment Clause of the Constitution for Arizona to give tax credits to people who donate to a scholarship fund that is used to provide scholarships to students to attend private schools, of which many are religious schools. In explaining the majority decision, Anthony Kennedy says that a reason that this is not a violation of the Constitution is that the state of Arizona is merely providing tax credits which support religious schooling, rather than actually spending state money on religious schools:

It is easy to see that tax credits and governmental expenditures can have similar economic consequences, at least for beneficiaries whose tax liability is sufficiently large to take full advantage of the credit. Yet tax credits and governmental expenditures do not both implicate individual taxpayers in sectarian activities. A dissenter whose tax dollars are “extracted and spent” knows that he has in some small measure been made to contribute to an establishment in violation of conscience. Flast , supra, at 106. In that instance the taxpayer’s direct and particular connection with the establishment does not depend on economic speculation or political conjecture…. When the government declines to impose a tax, by contrast, there is no such connection between dissenting taxpayer and alleged establishment. Any financial injury remains speculative.

This argument is obviously completely bogus, as Elena Kagan explains in her dissent:

Our taxpayer standing cases have declined to distinguish between appropriations and tax expenditures for a simple reason: Here, as in many contexts, the distinction is one in search of a difference. To begin to see why, consider an example far afield from Flast and, indeed, from religion. Imagine that the Federal Government decides it should pay hundreds of billions of dollars to insolvent banks in the midst of a financial crisis. Suppose, too, that many millions of taxpayers oppose this bailout on the ground (whether right or wrong is immaterial) that it uses their hard-earned money to reward irresponsible business behavior. In the face of this hostility, some Members of Congress make the following proposal: Rather than give the money to banks via appropriations, the Government will allow banks to subtract the exact same amount from the tax bill they would otherwise have to pay to the U. S. Treasury. Would this proposal calm the furor? Or would most taxpayers respond by saying that a subsidy is a subsidy (or a bailout is a bailout), whether accomplished by the one means or by the other? Surely the latter; indeed, we would think the less of our countrymen if they failed to see through this cynical proposal.

The fact is that tax credits and government expenditures are functionally the same thing. For an example in addition to Kagan’s, consider how the English handle charitable donations: rather than giving you a tax deduction when you donate money to a charity, the government just donates additional money, above and beyond what you donated, to the same charity. This English system is mathematically equivalent to ours, as long as the numbers are aligned correctly (e.g. in the U.S. if you donate $100 to a charity and your tax rate is 30%, the govt. gives you a $30 rebate. In England, you’d just donate $70 to begin with, knowing that the government would then add $30 to your donation.)

We all expect that the Supreme Court justices can honestly disagree with one another on matters of interpretation and value judgments. But this seems to be a case where one justice’s opinion relies on what is basically an objectively false understanding of how money works. We should not let our justices get away with this. The media should shame Kennedy. But given that they generally ignore things like this, I hope Elena Kagan has shamed Kennedy, and made him feel silly. When I make objectively incorrect arguments in the workplace, I can expect others to point out my error and have a little fun doing it, and the humiliation I feel motivates me to be more careful next time. We should hold our justices to a much higher standard. They are probably smarter than the rest of us on average, but apparently not by so much that they don’t need to be whacked back into line through media scrutiny and humiliation once in a while.