Cass Sunstein, a Harvard law professor and former Obama administration official, is the most cited legal scholar in the country. He is known chiefly for co-creating the concept of “libertarian paternalism,” the idea that while members of the public should formally have freedom of choice, benevolent technocrats should psychologically manipulate them into making the “correct” choices. Sunstein also has a tendency to make arguments of the “I am a liberal, but we should listen to the right and side with conservatives on X” type.
In fact, Sunstein has had a notable role in encouraging Democrats to embrace the right-wing push for “cost-benefit analysis” of government action (an insidious approach to policy-making that pretends to be neutral while privileging quantitative, market-value based measurements of the social good favored by neoclassical economists—and which, if applied earlier, would probably have resulted in destroying the Grand Canyon, the benefits of which could not easily be quantified). On other occasions, Sunstein has suggested that it is “disturbing” that academia does not have more Republicans for “viewpoint diversity” (just as chemistry departments need a few more phlogiston theorists). He has co-authored an article with a far-right professor suggesting that opposition to the death penalty may be irrationally underestimating the lives saved by deterrence. (This only works if you assume not only that deterrence works, but that there are no other ways to reduce murder beyond doing more murders.) He has suggested that Donald Trump and Vladimir Putin both act like “Marxists” (because they are chaotic, or something). And he is also known for promoting dubious social science research and then reacting with insults when statisticians critique him. When it comes to the COVID-19 pandemic, Sunstein also had a somewhat embarrassing role, having influenced the UK government’s widely-criticized early response strategy, and publicly declaring that panic about coronavirus was a result of “cognitive bias,” and “most people in North America and Europe do not need to worry much about the risk of contracting the disease.”
There have been persuasive and devastating critiques of Sunstein’s work, pointing out that his mixture of free markets and light nudges by the nanny state is incapable of solving crises requiring major action by a powerful central government (e.g. climate change). Obviously, it is an indictment of legal academia that Sunstein is its most-cited scholar, but his work is also deeply insidious, especially insofar as it presents conservative positions as mere “rationality” and the acceptance of conservative talking points as “fair-mindedness.”
Sunstein’s latest column in Bloomberg is a particularly extreme example of this practice. He calls it a “primer for conservatives,” saying that because a “well-functioning democracy requires two parties” he will answer the question “what ideas and approaches should [Republicans] champion?” He suggests that Republicans “might want to go back to basics” and that “one of the most clarifying accounts of the conservative tradition” comes from Albert Hirschman’s The Rhetoric of Reaction. Hirschman proposed that conservative rhetoric against social reform often boils down to three arguments: perversity, futility, and jeopardy. “Perversity” means the social reform will produce the opposite of its intended consequences, “futility” means it will have no effect, and “jeopardy” means it will jeopardize something good we have already achieved. Sunstein gives an example:
Suppose that in an effort to help the working poor, you increase the federal minimum wage to $15 (as Biden is promising to do). The objection is that by doing that, you’ll actually hurt the working poor—because employers won’t be able to hire as many people, meaning that a lot of working people will find themselves priced out of a job. The claim that a policy has perverse effects does not question the goals of the reformers. It merely doubts their means. It suggests that reformers are clueless. They don’t see that things bite back—and that many public-spirited changes to the status quo end up biting the most vulnerable members of society.
Sunstein gives other examples: new environmental and occupational safety regulations may end up having a “crushing impact on small business” and “hurting a lot of people.” Or the Green New Deal may not achieve much because the United States is responsible for only a fraction of the world’s emissions. Sunstein says that when conservatives make these “standard” objections, progressives “badly need to give a fair hearing” to them and “will have to concede a point or two, or even more” or “decide that their original proposal was wrong in some important respect.” Then they can fix their proposals by “going in a different direction.” For example, “some people think that if you want to help the working poor, a large increase in the Earned-Income Tax Credit is better than a large increase in the minimum wage.” Ultimately, he says, conservatives “will be entitled to start a lot of conversations.”
Sunstein is right that Albert Hirschman’s Rhetoric of Reaction is an extremely useful guide to understanding conservative arguments. In fact, it’s a must-read book on the intellectual history of the right wing. But the thesis of the book is exactly the opposite of Sunstein’s. What Hirschman actually shows is that conservative arguments are always the same, regardless of the issue or the facts, and that “the perversity, futility, and jeopardy arguments, have been leveled unfailingly, if in multiple variants, at three major ‘revolutionary,’ ‘progressive,’ or ‘reform’ moves of the last two hundred years.” Therefore, while these arguments may occasionally have some degree of fairness, they are almost always suspect. Hirschman goes back through hundreds of years of social reform and shows that conservatives spew the same bullshit talking points no matter what the issue is. They always say that it will “hurt the very people it is trying to help,” that it will do nothing, or that it will destroy civilization. Always. They said it about abolishing slavery. They said it about ending Jim Crow. They said it about universal suffrage. Here, for instance, is an 1840s reactionary talking about the perils that will come of giving ordinary people a vote:
The word freedom sounds rich and beautiful, but no one should talk about it who has not seen and experienced slavery under the loud-mouthed masses, called the “people,” seen it with his own eyes, and endured civil unrest . . . I know too much history to expect anything from the despotism of the masses but a future tyranny, which will mean the end of history.
Hirschman’s conclusions are devastating for the conservative intellectual movement. He says that “advocates of reactionary causes are caught by compelling reflexes and lumber predictably through set motions and maneuvers,” and that when you understand that they are just repeating the same points over and over without any regard for whether they are correct, using “simplistic, peremptory, and intransigent rhetoric,” “some ‘deep thinkers’ who had invariably presented their ideas as original and brilliant insights are made to look rather less impressive, and sometimes even comical.” Sunstein points out that Hirschman did not say conservative arguments are always wrong, a caveat that Sunstein uses to conclude that The Rhetoric of Reaction encourages us to give conservatives a fair hearing. But Hirschman was extremely clear: the fact that a broken clock is right twice a day, and sometimes social reforms don’t accomplish their intended goals or have negative unanticipated consequences, does not mean conservatives are arguing in good faith:
I have said so here and there already, but it bears repeating quite bluntly and generally: there certainly have existed situations where well-intentioned “purposive social action” has had perverse effects, others where it has been essentially futile, and still others where it has jeopardized the benefits due to some preceding advance. My point is that, much of the time, the arguments I have identified and reviewed are intellectually suspect on several counts. A general suspicion of overuse of the arguments is aroused by the demonstration that they are invoked time and again almost routinely to cover a wide variety of real situations. The suspicion is heightened when it can be shown, as I have attempted to do in the preceding pages, that the arguments have considerable intrinsic appeal because they hitch onto powerful myths (Hubris-Nemesis, Divine Providence, Oedipus) and influential interpretive formulas (ceci tuera cela, zero-sum) or because they cast a flattering light on their authors and provide a boost for their egos. In view of these extraneous attractions, it becomes likely that the standard reactionary theses will often be embraced regardless of their fit.
Hirschman was, as Sunstein notes, a fair-minded person, and he also believed there were progressive arguments that were intellectually suspect (such as believing that change is automatically progress because we’re on the “right side of history”). His point, though, was that conservatives are generally bullshitters, by which I mean that they conform with Harry Frankfurt’s definition of bullshit as a statement whose truth or falsity the speaker doesn’t care about. Conservatives are going to say that raising the minimum wage kills jobs regardless of what the studies say. They’re going to say the Green New Deal will destroy jobs before they even hear the evidence of whether that’s the case. They’re going to say opening the borders would cause catastrophe before ever investigating the question of whether that would actually happen.
We can see this, actually, in Sunstein’s own example of the arguments progressives need to “give a fair hearing” to. He cites a $15 minimum wage, and says that “the objection” is that this will hurt the poor. Indeed, that is the objection, and it was always going to be the objection, because as Hirschman points out, conservatives always say a reform is going to hurt the poor. The question is: in this situation, is it actually true? Well, as MarketWatch notes, the $15 minimum wage was predicted to hurt New York City, but it didn’t. The Economic Policy Institute says raising the minimum wage nationwide to $15 would lift the wages of 33 million workers. There are studies suggesting that there is a trade-off involved: that while many people would be lifted out of poverty some others would lose their jobs. But the question of what the minimum wage does, and whether it accomplishes our desired social goals efficiently, is an empirical one. Sunstein notes that “some people” think the Earned Income Tax Credit is a better way to help people than increasing the minimum wage. Indeed, some do, and some others say the Earned Income Tax Credit is highly overpraised by technocrats who fetishize tax credits. Progressives do not, as Sunstein continually argues, need to prepare themselves to concede points and change their policies unless their policies are proven to be wrong and bad.
The problem with Sunstein’s approach is that it totally ignores the core insight of The Rhetoric of Reaction, which is that conservative “perversity, futility, jeopardy” rhetoric should not be assumed to be well-founded. It is, instead, ideological. That does not mean it is done in “bad faith,” i.e. that conservatives do not mean what they say. They might be perfectly sincere, but their sincerity comes from their ideology rather than reality. This means that a conservative’s fear of the consequences of mass immigration are not based on an actual dispassionate investigation of immigration, but on the prejudice and fear (of change and difference and the other and the unclean masses) that is at the core of conservative thinking.
This is also why Sunstein’s idea that we need more conservative professors is so misguided. If we need more conservative professors, it is because they are insightful rather than because they are conservative, but their insight needs to be proved, not assumed. If an examination of the arguments reveals that conservative beliefs are ill-founded, then there is no more reason to give affirmative action to Republicans than there is to invite the phlogiston theorists, phrenologists, and flat-earthers into the hard sciences.
We can agree with Sunstein’s point in an extremely narrow sense: it is important to be “fair” to all ideas. But Sunstein goes much further and implies that because conservatives make a point, they are likely to have a point, and that progressives should prepare ourselves to compromise and admit the truth of conservative objections before we have even checked if those objections have validity.
That is actually anti-rational. A sensible person does not assume that critiques are valid just because they are critiques. Understanding what is wrong with Sunstein’s perception of conservative views helps us understand a core problem with all of Obamaist technocratic liberalism: It simply misunderstands the right. Conservatives do not disdain social justice because they have good arguments; as I have shown over and over, they do not actually grasp the left’s case or give it a fair hearing. Instead, they have a preconceived worldview, and they interpret the facts in accordance with that worldview rather than building the worldview on the basis of a careful examination of the facts. There are plenty of people on the left who do the same, of course, but that does not mean that “both sides are equally incorrect”; the question is: which side is saying things that, when we check them carefully, actually turn out to be true? The fact that none of the conservative arguments against the socialist position hold up should strongly suggest that “both sides” do not have an equal amount to contribute to the discussion.
Sunstein’s work is an example of pseudo-rationality: a performance of reasonableness and fair-mindedness rather than the real thing. A truly reasonable person is concerned with empirical fact, not “equal time.” A reasonable person investigates how biased values can be disguised by “cost-benefit analysis,” rather than just assuming that because we say “on the one hand, on the other,” we are doing policy scientifically. A reasonable person certainly does not resent it when statisticians expose holes in their analyses. Sunstein has praised Star Wars because, in his view, it is “bipartisan,” but there is nothing inherently good or reasonable about bipartisanship; some terrible atrocities have been committed with cross-party consensus. (Also, it is absolutely bizarre to view the Dark Side and the Light Side of the Force in Star Wars as “equally valid”; as if the Jedi should just compromise with the Emperor’s desire to displace and murder all of them.) Rationality does not demand admitting conservatives are correct, but checking whether they are. When we do that, we see, as Hirschman did, that their endlessly-repeated talking points are, for the most part, simply worthless expressions of their own fears and desires rather than factually-grounded assessments of what is likely to happen.
