The RNC and Nonsense

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The RNC and Nonsense

By Joel Levin

Democracy is a strange, unwieldy, flawed, and maddening thing, rife with failures, crowded with bullies, full of misfortune, and embarrassed by contradictions. Those who claim to be brilliant political theorists or shrewd social observers try to construct better political systems, which, at least since John Locke in the late 17th century, has meant a democratic system. They attempt to construct it from the beginning to have their work endure as is forever. In so doing, they are naively indifferent to certain failure, as early drafts of political theory, like first drafts of so much else, unassumingly but inevitably exit the stage.

That said, as many have noted, democracy is better than any other system, but how much better, when better and how it can remain better are always the difficult questions. The depressing solution, long clear but often ignored, is that democracy needs constant rebuilding, constant renewing, and constant reconstruction. In that way, it is like so much of the world that we inhabit. Perhaps no one understood this more clearly than Otto Neurath, the Austrian physicist and philosopher of science, who attacked the notion that there were immutable basic foundations to our knowledge that would explain all things going forward:

“We are like sailors who on the open sea must reconstruct their ship but are never able to start afresh from the bottom. Where a beam is taken away, a new one must be put there, and for this, the rest of the ship is used as support. In this way, by using the old beams and driftwood, the ship can be shaped entirely anew, but only by gradual reconstruction.” 

The image of repairing a ship at sea, which some have morphed more cataclysmically to a raft, is vivid and telling. We find no firm foundations, safe harbor, or rest from use, yet we are faced with the need to stay afloat, to survive. There is no Coast Guard and dry dock ready to save us when we spot the leak. Nor can we necessarily plug that leak quickly, efficiently, or permanently. We use what is at hand, “old beams and driftwood”. The same holds true when viewing our governing political foundations. We cannot put them aside, move the American society for a few years to some vacation paradise, and then return with a repaired politics. This is the reality of the January 6 incursion. 

That incursion was broadcast in our living rooms, televised battles of the kind we have become accustomed to since the first reality TV series, the Vietnam War in the 1960s and 1970s, became part of our daily viewing. We watched the fray, the small cruelties, the larger intent to harm, the grand hope of great victory and change. Most of us are depressed and alarmed. President Trump, per the reports, was excited and elated. Since then, we have been presented ongoing pictures from the event, a Netflix next season, as the media, Congress and the Department of Justice have released more tape, more assaults, more bloodshed. Like the Vietnam War, we are invited into the conflict, and are skeptical of those who wish to deny what the images, that is the evidence, clearly and equivocally shows.

The problem becomes what should we make of it? Clearly an attack on the Capitol, with the property damage and bodily injury and the subsequent trailing deaths, is alarming, requiring a fix, the righting of a leaking ship. That righting is here a difficult process, as one of the two governing parties, the Republican Party, has prominent members implicated in the uprising, members who self-confessedly and proudly took part in the insurrection. The well-known and usual legislative reaction to such an event is to create a Congressional committee to investigate the uprising in a neutral and thorough way and to suggest legislative remedies for the future. The attempt to do just that failed when Minority Leader Kevin McCarthy decided to stack the committee with partisans lacking any interest in neutrality or thoroughness. This led to the creation of the January 6 Commission by Speaker Nancy Pelosi. It is chaired by Bennie Thompson, with 6 other Democrats and 2 renegade Republicans (Vice-Chair Liz Cheney and Adam Kinzinger). Creating and running it is a stormy and imperfect process, like using driftwood for planks on an unseaworthy boat, but one necessary when the ship has sprung leaks.

The work of the Commission would have been easier if a number of things were the case: they would have ready access to all the information of the Department of Justice and FBI has; they would have ready access to all the documents that the Trump Administration generated and occasionally destroyed; they would have all phone records, emails, texts and devices of those involved; they would have had the cooperation of fellow members in Congress who were witnesses and participants on January 6 and the days leading up to it; third-party witnesses would have cooperated without subpoenas; subpoenas once issued would have been immediately obeyed and complied with; and the Commission would have had full Republican participation in a relatively non-partisan way. Unfortunately, none of that happened. But there was January 6, and addressing it, even imperfectly, is a necessity.

In fact, the Commission’s efforts are better than just surprisingly good, their work has been excellent. With a staff of 40, it has analyzed more than 35,000 pages of records, interviewed more than 500 witnesses, issued more than 80 subpoenas, and formed 5 working teams – Inside the Fence, Follow the Money, Online Misinformation and Extremist Activity, Efforts to Overturn the Election, and the Capitol Demonstrations – to analyze the findings and make recommendations – for criminal referral or future legislation – to discourage a repeat of the January 6 events. 

Considering the reality of the insurrection and the dogged (if hampered) efforts to investigate it, the Republican National Committee, the RNC, took a remarkable step. On February 4, the RNC nearly unanimously voted to censure the two Republicans on the Commission, Representatives Liz Cheney and Adam Kinzinger. Specifically, the RNC said it would “immediately cease any and all support of them as members of the Republican Party for their behavior, which has been destructive to the institution of the U.S. House of Representatives, the Republican Party, and our republic, and is inconsistent with the position of the conference.“ Perhaps more remarkably, it said that Cheney and Kinzinger were “participating in a Democrat-led persecution of ordinary citizens engaged in legitimate political discourse” by serving on the Commission.

It might be worth setting to one side the obvious nonsense in the RNC vote. A commission or tribunal or court that gathers evidence, speaks to witnesses, analyzes facts, assembles an event timeline, and shares what they learn with their colleagues and the interested public is hardly destructive of any public institution worth having: it is the very essence of what public institutions should do. Any such institution should be interested in facts, truth, evidence, and who had responsibility for what when things went awry. Getting information this way is the least coercive, as no one is forced to do anything but tell the truth; is the least intrusive, as no one is required to do anything but explain their role in an insurrection; is the least subject to misunderstandings, as normal due process guidelines (right to counsel, hearings eventually published, prior notice of what is to be covered, court reporters, two separate sides of commission members) are followed and is the least violent way to proceed as a government entity. Unlike in the insurrection, witnesses sit calmly in spacious and upscale conference rooms, questioned for a period, and then take regular breaks, are given the right to counsel and time to review documents, all in an atmosphere that is plush and pleasant, usually cordial, and with access (at least in my experience) to unlimited coffee and pastries. Participating in such a process – whether as a dissenting voice on a court or a dissident member with their own views on a commission – is hardly destructive of any government institution, including the House, and only beneficial to the republic, which it seeks to save. Condemnation of this is nonsense. 

It is not nonsense, though, to suggest the process destructive of the Republican Party or inconsistent with the position of the conference. That Republican Party and that RNC conference clearly played a significant role in the insurrection. In so doing, they were encouraged by Donald Trump and spurred on at the earlier rally by his legal counsel Rudolph Giuliani and John Eastman, GOP Congressmen Mo Brooks and Madison Cawthorn, and Trump’s two older sons and their significant others, all in pursuit of the effort to alter the election results. Also involved in these efforts to overturn the election were the involvement of innumerable Republicans loyal to Trump, including, per White House advisor Peter Navarro, over 100 members of Congress. Anyone uncovering and then making public evidence of what happened on January 6 would be engaged in a process destructive to the Republican Party. That is, a prosecutor or jury or judge or investigator who identifies criminal misconduct obviously is involved in a process destructive to that criminal. Congressmen Cheney and Kinzinger may not be able to escape that charge, but, neither should they, nor apparently are they, embarrassed by it.

As Cheney herself wrote:

“Those who do not wish the truth of Jan. 6 to come out have predictably resorted to attacking the process – claiming it is tainted and political. Our hearings will show this charge to be wrong. We are focused on facts, not rhetoric, and we will present those facts without exaggeration, no matter what criticism we face. “

The question is not one of destruction or loyalty. It is one of accuracy and evidence. Are the findings of the Commission true? Are the people they name the right people? Is the investigative effort to examine the witnesses and documents they seek the right effort? Is the analysis they use proper? Being destructive of something bad is not itself something bad, but something good. 

This brings us to the second and more remarkable conclusion of the RNC vote, namely that those who attacked the Capitol were engaged in “legitimate political discourse”. I want to leave aside for the moment the terms “legitimate” (which generally means lawful, which it clearly was not) or “justified” (which implies a proportional protest response, which the videos, assaults, indictments, and convictions belie), and examine the term “discourse”. It is an odd term to select, as it is favored by those enamored of left-wing, post-modern, deconstructionist rhetoric, usually associated with the impenetrable philosophy of Michel Foucault. Foucault held, roughly, that “discourse “was a historical social system, a culture that organizes knowledge. Truth and science are no more than historical artifacts, lacking any claim to special status. This relativism is at the heart of screeching attacks by conservatives and Republicans against the left (although how many on the left understand any of this, let alone believe it, is problematic. Foucault is not for the faint of heart). In any case, per the RNC discourse, it is.

If we take discourse to be something like ordinary speech or communication, we then need to ask whether the insurgency of January 6 qualifies as discourse. It might seem that either something is speech, or it is conduct, but not both, with speech being always presumed legitimate and conduct being always subject to the normal laws of crime and torts underlying respect for the persons or property of others. If we think that what the participants did in storming the Capitol is speech, then, while there may have been some exuberance or even irrational exuberance, to quote Alan Greenspan, there was nothing much to see there in terms of criticism, particularly if there was a felt grievance about a stolen election, whether that grievance was justified. We understand that communication need not employ language, that speech can be symbolic. We take flag burning, wearing armbands, or burning draft cards to be symbolic speech and, in the U.S., just as protected as speech that uses words. Even students are protected while in a government building, their schools, when engaging in symbolic speech. Tinker v. Des Moines Independent Community School District.

From this false dichotomy, speech, or conduct, a second false connection – speech should be unregulated, conduct regulated – is sometimes made. None of this is true. Start with the dichotomy of speech or conduct. Things can be both, with some language not really speech and some physical behavior not really conduct. J. L. Austin pioneered the use of performatives to describe the first. We think of normal speech, the canonical or usual or standard case, as involving statements that might be treated as true or false. They might involve a report about the world, whether personal (I am hungry) or scientific (Neptune is further from Earth than Mars) or social (She is a good friend). They might search for truth (Where is the nearest pizza parlor, how do you solve Fermat’s Last Theorem), or describe a personal matter they take to be true even if verification is problematic (eating meat is wrong, Banksy is a better artist than Vermeer).

Yet there are things masquerading as statements, according to Austin, that have nothing to do with truth and everything to do with conduct. Consider just two: “I do” by a bride and “Fire” by the captain of a firing squad. Neither have anything to do with truth. Saying “I do” (that is, saying “I do promise to have and to hold…”) is largely irrelevant as a promise, a prediction, a statement a fact, a hope, a wish, or anything else that might normally have to do with an ordinary statement where truth is central. Rather, it, like signing a contract, seals the deal. It is a step that makes something work, like turning the key in the ignition. It is an act that brings alive something new in the world, a marriage. No matter what the intent or belief or wish or hope or fingers crossed behind saying “I do”, one is married with the simple utterance of the words. The same thing, in a more abrupt and dramatic way, with saying “Fire” when commanding a firing squad. Even if prefatory to saying “Fire”, the captain said to the prisoner, “You are guilty of treason, and because you have been tried fairly, and because the sentence is justified, it ought to be carried out, so ‘Fire’”, and none of that was true, that would be irrelevant to the performative conduct of the term itself, which, no different than a hangman cutting the rope, leads immediately to an execution. 

If a set of coherent words are not always speech and a physical movement is not always conduct, at least we try to understand free speech and criminal conduct. People gesture, use sign language, point, roll their eyes, nod their head, make a rude or obscene motion, even do a small dance: all to communicate meaning, often unmistakable meaning. Pointing to which road to take to find dinner is no different than saying “The restaurant is in that direction.” 

Of course, something can at the same time be both conduct and speech. Take the case of the leader of a lynch mob speaking to the crowd, a crowd who holds captive the potential victim alongside a tree with a sturdy low branch, rope in hand. The leader shouts to his followers: “String up that man. He murdered Joe.” Classic speech is involved, as it makes some difference if it is true that the captive is a murderer, both to the horror of the act (it would be worse to lynch an innocent than a murderer), and to the persuasive power of achieving that act (doubt in the crowd that it wasn’t murder but some lesser killing, (as Joe was armed and menacing), or the victim was guilty of a transgression other than murder (as Joe survived), or even that there is some doubt as to whether this was the right victim (as someone else killed Joe). Also, classic conduct is implicated with “String him up” just as surely as “I do” or “Fire”. This, then, can be judged both as a speech capable of truth assessment and conduct judged under tort or criminal standards. 

The acts of January 6 in storming the Capitol are, at least arguably, akin to the lynch mob and its leader, being both speech and conduct. Being both does not offer immunity from criticism for one or the other, but subjects the actor or speaker to criticisms on two fronts: is the speech somehow acceptable, with some relation to truth and not otherwise subject to attack (if not disallowed) because of such disabilities as hate speech or fraud or defamation, and is it an impermissible threat to person or property as criminal or tortious conduct? That is, is the fact that the actions might be discourse the end of the matter?

The answers are yes, no and no. The actual speeches leading up to January 6, arguably malevolent and pernicious, hateful, and ill-informed, full of sound and fury signifying nothing, may be, and likely should be, nevertheless protected speech. Their falsity was incomplete, the grounds for their assertions were not nonsensical, individuals are entitled to their opinions even if their opinions have only a slim basis, and podium speeches of that sort are, unlike lynch mobs with victim and rope in hand, best treated as speech and not conduct. 

The attack that followed on the Capitol is more problematic as speech. Initially, we notice it to be at best clumsy speech, speech which imperfectly conveys information but clearly delivers violence. If someone is conducting an idiosyncratic sign language that, as part of showing that they have a headache, punches someone else in the head to indicate their own headache, we might think that to be problematic even as speech. It might not even be clear that by giving someone else a headache the speaker has a headache. What exactly is the discourse that was going on in the storming of the Capitol? Was it that there was election fraud, that in the various states individuals voted who should not have, that voters who should have been qualified to vote were barred, that the voting tallies were inaccurate, that the election officials were either negligent or corrupt, or that the electors chosen were improper? One might search hard to detect exactly which, if any, of these statements were being conveyed by those who broke windows and furniture, assaulted the Capitol Police, destroyed property, occupied office buildings, and searched for Vice President Pence to execute him. 

Put simply, part of this discourse involves communication, where listeners of the intended communication have some degree of success in understanding that communication. There is no such thing as private language, understood only by the utterer. Language use is essentially public behavior, behavior where it is necessary for other individuals or an audience to understand the intent of the utterer. Primal screams, crazed temper tantrums, speaking in tongues: these are not in any way communications that might be considered discourse. It is little more than nonsense to call them so. 

But if the actions are far from speech, even if they had speech aspects – the insurgents wanted to convey their unhappiness with Congress in voting to certify President Biden as the election winner, and destroying a building was a “legitimate”, to use the description of the RNC, way to do so – that hardly shields them from criticism. One might well be extremely critical of behavior that falls short of criminal or tortious conduct or may not be considered conduct at all. Nazi, fascist and Ku Klux Klan speeches and blogs, shaming and humiliating minors or victims generally, publishing humiliating and embarrassing private correspondence or photos, and disgracing people using scurrilous or pernicious labels to castigate or shame or ruin their future: all these deserve our harsh judgments. If they are investigated, perhaps by a bipartisan commission of experienced lawyers sifting through the evidence with a talented staff, that commission deserves praise, not blame. That work of the January 6 Commission is a significant part of the effort to right a leaky ship of state, to use what is at hand to make the repairs. The RNC instead has attacked and ridiculed that effort, supplying more evidence of their own nonsense. 

What about the conduct aspect of the January 6 rioters? Clearly, this part of the implied discourse – violent, destructive, hateful, and injurious – was criminal conduct, pure and simple. It may well be part of discourse, as we see discourse involving both speech and conduct under certain circumstances, but it is destructive discourse, worthy of punishment, worthy of investigation, and worthy of the need for corrective legislation to prevent its being repeated. That is essentially what the January 6 Commission, plank by plank, has been attempting to do, and the RNC attack on members of the Commission may charitably still be called, like so much else in their resolutions, nonsense. In fact, its destructive reach involves more than that, as it destroys what discourse aims to achieve: individual autonomy, reasonable debate, the advance of knowledge, creativity, and personal happiness.

In the 1920s and 1930s, scholars and intellectuals from around the world traveled to Vienna to participate in sessions of the Vienna Circle, a group of Europe’s leading mathematicians, physicists, and philosophers. Otto Neurath, the individual whose concern about re-building a boat while at sea began this article, was one of the founders of the Vienna Circle. Whenever he heard nonsense at their meetings, he would interrupt the speaker to deliver a short dissertation about the speaker’s nonsense, which he labeled as “Metaphysics”, a term meant to suggest that the speaker had left the evidence-based confines of legitimate science or physics, traveling beyond the limits of ordinary rationality. His interruptions were so disruptive that others eventually prevailed upon him simply to say “Metaphysics” rather than to deliver a mini discourse. Even that proved too much, as Neurath spotted nonsense frequently. He was finally limited – in the face of irrational, unfounded, absurd talk – simply to shout: “M”.

To the RNC, we can only shout: M.