Being Constructive in the McCarthy Era

 The current era has been replete with hyperbolic comparisons:

• 9/11 and 1/6
• RussiaGate and Pearl Harbor
• Leftist critics of environmentalists as white nationalists
• Texas Abortion law and Fugitive Slave Act
• Trump campaign and Nazis

While I disagree with all of the above, here is one that I agree with: McCarthy era and January 6 investigation (by Glenn Greenwald).  As Greenwald puts it:

With more than 600 people now charged in connection with the events of 1/6, not one person has been charged with conspiracy to overthrow the government, incite insurrection, conspiracy to commit murder or kidnapping of public officials, or any of the other fantastical claims that rained down on them from media narratives. No one has been charged with treason or sedition. Perhaps that is because, as Reuters reported in August, “the FBI has found scant evidence that the Jan. 6 attack on the U.S. Capitol was the result of an organized plot to overturn the presidential election result.” Yet these defendants are being treated as if they were guilty of these grave crimes of which nobody has been formally accused, with the exact type of prosecutorial and judicial overreach that criminal defense lawyers and justice reform advocates have long railed against...

So many of these controversies were, or at least should have been, resolved when the Supreme Court twice intervened in the congressional hearings during the McCarthy era to conclude that Congress was exceeding its authority in its targeting of private citizens. There are some who believe that the domestic threat of communism which the McCarthyite committees cited was more dangerous than the ideology that drove 1/6, while others believe the opposite. But those debates are completely irrelevant to the legal principles governing limitations on congressional investigative authorities; these limitations do not change based on how grave the threat one believes Congress is confronting.

Indeed, the argument made by Congress in the 1950s to justify its investigations into private citizens is strikingly similar to the one advocates of the 1/6 Committee offer now. As the Supreme Court summarized that rationale in its 1957 ruling in Watkins v. U.S.: “The Government contends that the public interest at the core of the investigations of the House Un-American Activities Committee is the need by the Congress to be informed of efforts to overthrow the Government by force and violence, so that adequate legislative safeguards can be erected.” But in both of the McCarthy era cases decided by the Supreme Court, that rationale was rejected as an invalid basis for Congress's investigative tactics... 

My challenge is to speak out against injustice and erosion of basic human rights without just adding to the general noise and hysteria being generated by so many hyperbolic claims.  Of course, the facts matter and truth is the most important factor in evaluating the relevance of such analogies. For example, RussiaGate has been disproven to my satisfaction and the claim that "hacking the 2016 elections was an act of war" is absurd.   A better analogy is that the RussiaGate claims are analogous to the Cold War era claims that were used to justify the arms race, intervention in 3rd world countries, and intervention by the CIA and FBI in domestic politics.

But moving forward, I suggest that we consider how to deal with extremist threats, or alleged extremist threats.  To the extent that violent acts are advocated involving terrorism or the violent overthrow of legitimate government, then such speech is and should be against the law and prosecuted accordingly.  It's important to distinguish between protestors who enter the capitol and protestors who commit acts of violence including especially bodily harm.  To equate 9/11 with 1/6 is thus to ignore a very important distinction.  Nonviolence is key, and not all acts of violence are equivalent.

So how do we deal with extremists who don't advocate violence?  This category would include many of alleged Communist sympathizers of the 1950s as well as many of the Trumpian protesters of the current era.  My recommendation is that we:

1. Protect the right to protest without retaliatory prosecution and removal of civil rights.  Just as gas pipeline protestors are arrested and then released without prejudice, so should those who went into the capitol but did not otherwise commit violent crimes be released without excessive retribution.
   
   
2. Encourage non-violent extremists to participate in the democratic process by transitioning to multiparty democracy, in place of current two-party system.  This is the thesis of a book that I have just read -- Breaking the Two-Party Doom Loop: The Case for Multiparty Democracy in America, by Lee Drutman, 
   
   Drutman makes a good case, in my opinion, that countries which support multiparty democracies, including left and right extremist parties, do a better job of handling extremism and diffusing potentially violent tendencies.  Government is then executed by coalitions of parties, and the extremists often moderate to get a place in government, while the mainstream parties take extremist concerns more seriously so that the smaller parties may support the larger parties to form coalitions.  Ranked choice voting is a related democratic procedure which can have a similarly constructive effect in channeling dissent through the democratic process and reducing polarization.

Democracy is one of my core values, and one of the core strengths of the United States.  Let's work to improve it rather than to dismantle civil rights in the name of partisan struggle.