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It's the applause for extortion that bothers me.

By Leon H Wolf Posted in Liberals — Comments (18) / Email this page » / Leave a comment »

Following up on the despicable actions of Mike Rogers that we reported yesterday, the blogosphere is abuzz about the whole sordid mess. See Dan Riehl, Patterico, Ace of Spades HQ, and Hot Air. To some degree, it seems that all these posts are focusing on the sleaziness and ham-handedness of the outing itself, and Patterico's post today seems to reinforce that. Fine. It's unquestionably dirty politics, and it will probably backfire to the extent that this sort of politics did on Republicans in 1998 (whatever your view of the relative gravity of these offenses). What seems to be going unsaid in a lot of cases - and Rick Ellensburg completely misses the point on this - is that, if Larry Craig really was the target of the Rogers letter during the Alito confirmation hearings, then a federal crime has taken place here - and not one of the ticky-tack excessive regulation federal crimes - the morally reprehensible crime of extortion. Extortion, prior to yesterday, was pretty nearly universally decried; now that it has been used against Republicans during the middle of an election season, there are suddenly plenty of people who are fine with it, and others who are willing to pretend that it never happened in order to advance the most versatile of all liberal talking points: "It's all about sex."

By way of reminder:

(d) Whoever, with intent to extort from any person any money or other thing of value, knowingly so deposits or causes to be delivered, as aforesaid, any communication, with or without a name or designating mark subscribed thereto, addressed to any other person and containing any threat to injure the property or reputation of the addressee or of another, or the reputation of a deceased person, or any threat to accuse the addressee or any other person of a crime, shall be fined under this title or imprisoned not more than two years, or both. If such a communication is addressed to a United States judge, a Federal law enforcement officer, or an official who is covered by section 1114 [18 USCS § 1114], the individual shall be fined under this title, imprisoned not more than 10 years, or both.

18 USCS § 876 (d)

More below...

Now, it is clear here that Rogers sought to obtain a "thing of value" - namely, a favorable vote on a very important issue (the nomination of Samuel Alito to the Supreme Court) - these votes are things that lobbyists pay out the wazoo to try and influence. He sought to extort this "thing of value" by threat to injure the reputation of the addressee - textbook extortion. What's most bizarre is that this kind of extortion is now being applauded by those who are ostensibly friendly to the interests of the "gay community." In his inimitable style, Richard Posner examined the ways in which this type of extortion (which he calls "homosexual blackmail") raises the "costs" of being gay (Posner works from the premise, shared by the left, that homosexuality is an unchangeable trait):

Suppose a man is a homosexual in the sense of having a strong, and basically lifelong, preference for sex with other males. This condition is almost certainly involuntary. Of course, having a homosexual preference and acting on it are different things; the preference may be involuntary but the homosexual acts themselves are not. So, to begin, let me assume that the blackmailer's victim is a homosexual and confides this to a friend but refrains from homosexual acts, and in fact is married. The "friend" threatens to tell the victim's wife about his homosexuality unless the victim will pay him to keep silent. This is a classic blackmail threat, yet it is difficult to see what the benefits would be of allowing it to be made. In fact the net social product would probably be diminished if this class of contracts were permitted.

To see this, consider the effects of such permission. One would be to raise the cost of having a homosexual preference -- of being a homosexual. Another would be to increase the resources expended on discovering homosexual preference and on negotiating contracts to prevent the discovery from being revealed. A third would be to increase the resources devoted to concealing homosexuality and to other defensive measures against the threat of blackmail.

...

To repeat an earlier point, the illegality of blackmail reduces the amount expended on investigation and entrapment, making that amount a poor predictor of what the costs of blackmail would be if blackmail were legal. Moreover, in a legal market, it is doubtful that the casual blackmailer would deal directly with the victim, because the latter would want a reliable guarantee that the blackmailer would not renege on his promise of silence. Blackmail would tend to be dominated by "reputable" blackmail enterprises, whose costs would not be trivial.

If raising the cost of being a homosexual has no allocative effect because homosexuality is an involuntary and unalterable condition, then legalizing blackmail would channel real -- and, I have just argued, considerable -- resources into bringing about a pure redistribution of wealth from the homosexual to the blackmailer. There would be no net social gain but instead a net social loss equal (at a minimum, as we shall see) to the resources expended in the blackmailing. Here is where the involuntary character of being a homosexual is important, which is what caused me to specify a separate Category Six for cases of involuntary, unalterable conditions. If a condition cannot be changed by incentives, taxing it is unlikely to have any allocative effect. No gain, much cost.

I am oversimplifying. There would be some allocative effects. Some homosexuals would be less likely to marry, to enter traditionally heterosexual or homophobic occupations (notice the parallel to the occupational effects of allowing blackmail with respect to past criminal convictions), or in short to try to "pass" as heterosexual, since a known homosexual cannot be blackmailed. Others, however, would try all the harder to pass, in an effort to reduce the risk of blackmail by raising potential blackmailers' costs of information. Both classes of response would be defensive measures akin to the purchase of a security system by a householder fearful of burglary. If we anticipated a social gain from homosexuals' making either greater or fewer efforts to pass as heterosexuals, and if we knew which effect would be more likely on balance if blackmail were permitted, then we could evaluate a suggestion that allowing homosexuals to be blackmailed would generate social benefits. But there is no basis in existing knowledge for either judgment. For example, while it could be argued that a male homosexual who marries a woman to whom he does not disclose his sexual preference commits a fraud upon her and therefore that such marriages should be discouraged, we do not know whether allowing blackmail would reduce the number of such marriages by increasing the cost of the marriage to the homosexual or would increase the number of such marriages by increasing the benefits of marriage to homosexuals through its camouflage effect (married men are presumed heterosexual). In the face of this uncertainty, the safest guess is that allowing the blackmailing of homosexuals would yield a net social loss equal to the resources expended in blackmailing and in defending against blackmailing. Additional resources would be squandered on efforts to entrap people in compromising situations.

SOURCE: SYMPOSIUM: BLACKMAIL: ECONOMICS: BLACKMAIL, PRIVACY, AND FREEDOM OF CONTRACT. 141 U. Pa. L. Rev. 1817

So, are we cool with all this, Kossacks? You cool with this, Thomas Ellers? We're fine raising the overall cost of being homosexual in a wide variety of ways, as long as it hurts the Republicans? I just want everyone to be clear exactly where folks stand on this issue, so that we can know for real where folks' priorities lie.