Law, like politics, is stories

Here’s some very broad political advice: don’t confuse proving misconduct with pursuing victory in electoral politics. Though they may overlap, they are distinct things, and the distinction is very important.

I write from personal experience, here. Five years ago, my life transformed forever as the result of joining a frantic, grassroots attempt to prevent the liquidation of my city’s publicly owned charity hospital. We failed, utterly, and while there are many reasons, the most generally applicable is probably the lesson that “but that’s against the rules!!!” should not be assumed a cause’s strongest argument. Even when it’s against the law. Even when you can prove it with facts. Even when they admitted it.

An example: in 2015, Lakewood City Council met in one closed-door session after another. Public deliberation on the city’s hospital, by city council, was almost nonexistent. They got away with it anyway. Despite state open-meeting laws. Despite being sued. Despite their legal counsel—the city’s own law director—admitting during the court proceedings “that a violation has occurred.”

Plentiful other rule-breaking and evidence of rule-breaking characterized our feral local government’s fight to liquidate the public’s hospital. In terms of formal enforcement of rules, they got away with all of it, too, aside from one court ruling which obliged the city to cough up some redacted documents long after the votes had taken place and the hospital was a shuttered hulk.

That outcome, I’m entirely certain, could have been prevented politically. It wasn’t a hard sell. But the grassroots campaign did many many things wrong, including becoming near-obsessed with rule-breaking at the expense of campaigning for political support.

Ultimately, try though we may to make it work otherwise, law and enforcement thereof are a product of politics. Influence can run in both directions, but politics is always present; rules and laws are only enforced when and if political incentive to do so is sufficient.

Scream by all means that this is monstrous and dangerous. It can and does easily become so. Rage that we can and must have better rules, and more reliable enforcement. I believe that is so. But you have to persuade people, in order to do anything about that, and that is more of a hard sell.

Don’t ever confuse “this is absolutely very important” with “this feels important to lots of people” or even “this will feel important to lots of people once it’s explained.”

Lots of people are “low information,” when it comes to government. Perhaps more importantly, lots of persuadable voters are at the same time very cynical.

Within the context of partisan politics, it’s almost a tautology that “swing voters” (whether wavering between parties, or between voting and nonvoting) are very cynical about politics and government.

Your consistent voters for one party or the other, however informed or uninformed, perceive a real difference which feels important to them. In a political environment where the major parties are objectively quite far apart on policy, swing voters are largely inexplicable except through the absence of such a perception.

Among persuadable voters or potential voters, there is deep cynicism that politics matters. “They’re all bums, they’re all crooks, they all lie.” Arguments that one’s opposition lies, or even breaks the law, does not constitute the checkmate which the politically engaged constantly treats it as. I won’t claim to have the magic formula for what does “work.” Millions of people are looking for some material difference in their own lives, and millions of people are looking for symbolic gestures of solidarity against some essentially imaginary bugaboo. But “oh my god I have indisputable evidence that they’re breaking the law” is way more exciting to people who are pretty much sold on one political party or the other, than to people who aren’t.

Whatever level of government is being contested, it’s never wise to assume that the lawyers or the courts or the investigative agencies are going to save the day. At the level of the nation-state itself, this assumption is simply naive. The very authority of the lawyers and the courts and the investigative agencies is a product of politics. Any means of “depoliticizing them,” however worthy, is still at a fundamental level going to be subject to politics.

Ultimately, it’s all made up. I believe that objective facts exist, but in the realm of social organization and enforcement thereof, any significance of facts beyond their own hard physical reality depends on shared belief in a story.

In modern America, belief in many of the old stories is crumpling. The evidence that the stories which are being challenged include very important stories, with much consequence, is distressing to me. Perhaps to you.

But the broader reality is that the old stories aren’t compelling the way that they once were, and the only peaceful option we have for doing anything about it is telling some more-effective stories.

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