Framing the Wiretaps: Might we Actually Win?

Last week I was sure that the NSA wiretap issue was a loser for Democrats. And I was right—then. But two hidden bombshells since then make me much less sure. Watch what McCain says—and Kerry.

Last week, I wrote that while the NSA wiretaps were substantively scary and legally indefensible, they were also politically popular—which was why Rove was running towards the issue at full speed and the Democrats should run away. But a perceptive story in the New York times today makes me far less sure.

First some further explanation and analysis as to how things stood a few days ago. Bruce Moomaw in an email accused me of relying on a Rassmussen poll with bad question framing. He argued that the real issue was not the legitimacy of wiretapping, or even emergency wiretapping in the absence of a warrant, but “totally unrestricted wiretapping by the Executive”—and that polls published here and here showed little enthusiasm for that. The Zogby poll from the latter link shows, he points out, the median respondent supporting wiretapping in “rare cases.”

Those data, while more equivocal than Rassmussen’s, didn’t change my mind, basically because of a few persistent things about public opinion. First, limited information. A very small proportion of the public knows who the Speaker of the House is. Even fewer will know, or care, what the Foreign Intelligence Surveillance Act says or what the difference is between amending it and flouting it: any argument predicated on getting people to understand that is guaranteed to fail. Second: non-opinions and overreporting of interest. Most people think they ought to follow politics more than they do, and overreport how much they’ve followed an issue. They also tend to lunge towards moderate-sounding alternatives when they know little (so no surprise that they want “minor changes” in the Patriot Act—that sounds safe sight unseen). Third, mere preference is not the same as intensity: few issues on which one expresses a (perhaps arbitrary) opinion are voting issues. Fourth, and most important, both sides get to play the frame game. If an issue polls favorably to us when framed as we think most accurate, and favorably to them when framed as they think most accurate, they win if they can—through strategy and, above all, repetition—choose the frame.

All these factors favor Bush on this issue, and the polls in fact confirm this. On information, only 29% in the CNN poll—only 20% in ABC News/Washington Post—even profess to be following the wiretapping story “very closely” (and most of those are guaranteed to be fooling themselves). On intensity, 80% say terrorism will be “extremely” or “very” important in their Congressional vote this year. Only 59% say that about surveillance (CNN/USA Today/Gallup, early January).

The raw poll result on a pretty even-handed frame continue to be nothing special for our side: a wiretapping “without a court order” question still evokes support for Bush, but only slightly—50% to 46%. But when one puts the magic word “terrorism” in the question—as the administration and its allies will do 217 times a day for as long as it takes—the results are staggering. “”What do you think is more important right now—for the federal government to investigate possible terrorist threats, even if that intrudes on personal privacy; or for the federal government not to intrude on personal privacy, even if that limits its ability to investigate possible terrorist threats?” (boldface added) “Investigate” beats “Not Intrude” by two to one. Finally, when the question shifts from monitoring “Americans” or “people” generally to monitoring “those the government is suspicious of”—”in order to reduce the threat of terrorism,” of course—the rough political balance on the question vanishes and government monitoring again wins two to one. And this is when there hasn‘t been a big Al Qaeda attack in the U.S. for quite a while. What happens if a dirty bomb hits Seattle?

Illegal wiretapping is, to beat a dead horse that needs beating, an abstract issue for most people, who never make phone calls to Yemen or Afghanistan (or Germany or Spain, for that matter) and feel much more likely to be personally affected by terrorism than by wiretaps. (The polls show that too: people fear some for civil liberties generally, but very little for their own.) And remember that being President means being able to fudge the difference between “terrorists” and random suspects, which is why Americans haven’t risen up over Gitmo and secret prisons. Last Friday, Karl Rove didn’t talk about “suspects.” Instead: “President Bush believes if Al Qaeda is calling somebody in America, it is in our national security interest to know who they’re calling and why. Some important Democrats clearly disagree.”

Finally, the “illegality” frame is easy to muddy. The famous 42-page Justice Department memo claims that the wiretaps are fully legal within the constitution, in an argument that won’t convince many lawyers but is meant for the consumption of lazy journalists and Fox News viewers. (“Was it legal? The debate continues: OurPresident says yes, antiwar critics say no. More at 11.”) The same goes for the incessant repetition that the the program is regularly “reviewed”—by the Justice Department, a great comfort—which is intended not to convince Congress or Courts but to worm the impression into public debate that the power is not unrestricted or arbitrary (though it is). This worked well for the Administration on torture: Condi Rice’s saying that the U.S. has acted “within the law” on torture fooled neither our allies nor experts who know that Bush thinks he himself is the law, but lots of voters who seem to think the whole issue has been taken care of.

So: what in today’s story makes me change my mind? Not the dueling pundits who say Bush might lose the issue or else that he might win, but two crucial statements that we should all memorize.

First, John McCain apparently said on Fox News on Sunday that Bush should have sought Congressional authorization if he wanted to amend FISA. (Readers: if you have an exact quotation and link to the raw source, I’d love it.) This is huge. Only McCain has the credibility among conservatives and Republicans to throw a monkeywrench into the GOP machine on the terrorism issue. He beat Bush on the politics—not, alas, the policy—of torture, and he can do so on wiretaps if he chooses. It’s not clear yet, of course, whether he will.

Second, John Kerry said the following (in addition to a lot of unfortunate Kerryisms): “We all support surveillance.” Democrats who want to win this issue should repeat that again and again—and always, unlike Kerry, as the first thing they say: we support the ability to tap the phone calls of suspected terrorists; the only dispute is about the proper laws, the proper safeguards, etc. The “just like Watergate” frame is precisely wrong and makes it look as if we don’t take terrorism seriously. The “we don’t think the President is really doing this to fight terror” frame is even worse: terrorism is the one issue on which Bush remains popular, more popular than a month ago, and this line is easy to portray as partisan or even paranoid.

The “we all back the basic power, we all think we have to make some concessions on the details of privacy to catch terrorists, but we want to do it right, competently, and by the book” frame is much, much, better. And to the extent that one doesn’t back the basic power, my original argument stands: it’s better to be quiet. This is a defining moment for the party. In a straight fight of privacy vs. (however doubtful) gains in fighting terrorism, we lose. That’s exactly the fight that party activists will want to wage and that Kerry has just rejected.

I never meant that the Democrats should just stay silent on this issue or refuse to contest it, as some readers, including a thoughtful Mark Ploegstra, seem to have inferred. I meant that they should counterpunch hard if attacked, but then return to, and emphasize, other things—especially since Bush seems to be losing public opinion on every other issue: health care, the Iraq war (finally), corruption, the economy. But I’m willing to take yes for an answer: if the unexpected twists of the frame wars result in our winning this issue too—well, I’ll applaud.

Sorry for the length of this post. But these things are complicated, important, and developing very quickly. Stay tuned.

Yes, the NSA wiretaps are illegal.
    Now forget that and talk Medicare.

Yes, the NSA wiretaps are illegal. Democratic politicians should now forget that and talk Medicare.

I’ve seen the Justice Department brief alleging legal justification for Bush’s NSA wiretaps. Its arguments look strained in the extreme, especially given that they depend on alleging implicit Congressional approval for what Congress explicitly rejected. (Hat tips, further argument, and a promise of more to come from ThinkProgress, here and here.)

Democrats are holding a “meeting” today (it’s not a “hearing,” and it can’t subpoena witnesses or documents, if the minority party calls it and the majority party declines to join in), hoping to gin up public attention on this. I hope they fail. Reality-Based people, listen up: THIS IS A LOSING ISSUE FOR US. The only poll I know of shows that people overwhelmingly favor Bush’s doing this. And while Mark Kleiman thinks that this will change if we pound the table about illegality and “a government of laws, not of men,” I harbor enormous doubts. I share Mark’s principled attachment to legality and his extreme distrust of Bush’s executive arrogation. But both are minority and elite tastes. Most people are more afraid of terrorists than of the NSA’s intercepting international calls that they won’t place anyway. And when facing a terrorist threat, most people want precisely a government of men, not laws: we’re primates, after all, and we Americans more primate than most. Anybody think that the “meeting” will sway more people than bin Laden’s latest threat? The Republicans are not afraid of this issue: they are salivating at the prospect of engaging it and already starting to do so with glee.

The other side is much better than we are at pounding away at the winning message and avoiding daily distractions. We are under the illusion that surveillance is the winning message. It’s not: it’s the distraction. The message is how massive corruption led Republicans to screw up the Medicare bill and kept your aunt from getting her medicine. The liberal blogs have repeated this message admirably (e.g. here, here, and here)—and I hereby repeat it again.

There are two confusions operating here. First is the confusion between what liberal activists care about and what the median voter cares about. We are right to care deeply about the threat to privacy involved here. Politicians, if they’re doing their jobs, will thank us for being right—and then lay aside that irrelevance and go back to what voters care about.

That’s the other confusion: between what citizens have a duty to speak out about and what politicians have a duty to run on. (In my work I’ve called this, maybe pretentiously, a “division of moral responsibility”; others use “division of moral labor” to mean something similar) The wrongness of NSA wiretaps and imperial presidentialism generally is a complex, abstract, long term issue—a perfect subject for agitation, education, and yes, blogging by intellectuals and activist groups with the interest and time horizons to keep plugging at a thankless cause.

But politicians are there to make good policies, which means gaining and keeping office, which means winning elections. Fruitless expression of outrage is not part of their job. Failure to engage in it is not a lack of courage (or if you prefer: that kind of courage is also not part of their jobs). If elected officials champion hopeless causes under the illusion that by doing so they can quickly change public opinion—that doesn’t happen—they serve us badly, not well.

Medicare screwups are universally known, concrete, and easy to link to the incumbents. Apparently, attacking them polls well. Let the party leaders do what they’re supposed to: not holding meetings that everyone will surf past, but making sure that the next time it’s a hearing, not a meeting.