What makes the binder comment intuitively funny is its obliviousness to all these considerations. What makes it less comical is that with the last debate focusing on foreign policy, it's unlikely that Obama himself will have another chance to make that point.
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Just hours after Tuesday's debate, Mitt Romney's anecdote about ordering "binders full of women" for top jobs in Massachusetts had already gone viral. On Google, Facebook and Twitter, jokes about that moment solidly dominated popular reactions to the debate.

What made binders full of women so laughable? Under other circumstances, progressives might be pleased that the GOP nominee publicly recognized some need to remedy past discrimination and bolster equal opportunities. Unlike slashing funding for PBS, affirmative action and gender parity are hardly red meat for those on the right. They tend to be seen as progressive moves. As last week's oral arguments in Fisher v. University of Texas made clear, these kinds of efforts to bolster diversity are increasingly under fire from conservatives, and the attack upon them shows little sign of letting up. In that light, critics might want to be take care to explain why the anecdote is already the stuff of topical Halloween costumes.

What makes the anecdote funny is something that many people intuitively grasp, but that neither Barack Obama nor Joe Biden have explicitly emphasized in the debates: benevolence is not a substitute for legal and political protection. The idea that generosity is enough to protect marginalized groups is comical in the abstract, but could become a lot less funny on November 6th.

Unfortunately, the real distinction between charity and good public policy has been increasingly hard to see on the campaign trail. In the last few weeks, the Romney campaign has persistently blurred the line between personal magnanimity and a system that is structured so that all people get a fair shake.

Consider the Republican National Convention, where Ann Romney's attempt to humanize her husband centered on his kindness to his friends, members of his church, and acquaintances in need, and spent almost no time at all talking about his policies for the poor. Paul Ryan beat the same drum in his forceful defense of Romney in the vice presidential debate -- not that he's a good man because he pays his fair share of taxes, but because he gives more to charity than Ryan and Biden combined.

The rhetoric of charity is not only dangerous to women, but to LGBT people, immigrants, and other groups that depend on a system that gives them equal chances. The binder anecdote should have provided an opportunity for Obama to argue that generosity is an admirable quality in any human being, but is not a real substitute for social policy that gives a fair shot to everybody. One of the main purposes of anti-discrimination, equal pay, and affirmative action legislation is to correct for those employers who don't recognize that underrepresented groups are fully capable and qualified, deserve equal pay for equal work, and should be well-represented in a workplace.

Indeed, Romney's own account demonstrates why underrepresented populations need these types of policies; if he hadn't made the decision to intervene as governor, the top posts in Massachusetts would apparently have ended up filled by men. Romney understood that that would be unfortunate. What he failed to understand is that not everybody's boss is like him, and many do a far worse job of curbing their own prejudices.

The point isn't only lost on Obama. Biden missed his own opportunity to point out the pitfalls of charity in the vice presidential debate. As they debated how the economy is affecting ordinary Americans, Ryan dodged from whether Romney would let Detroit go bankrupt to describing the Mitt Romney he knows. He told the story of a family who was in a car crash that left two of their children paralyzed. The Romneys didn't know the family, but they attended church together. Romney not only asked if he could spend Christmas with the family, but also promised the children's father that he would pay for their college education.

Biden responded by recounting how he lost his own wife and child in a car accident, and touted how the administration was committed to Detroit and to broad job creation. He neglected to make a more fundamental point: the vast majority of Americans do not have any connection to powerful and influential multi-millionaires who will show up for the holidays and send their kids to college. Instead, the vast majority of people in that situation struggle to pay for healthcare, for family and medical leave, and for a future for their children as the price of higher education skyrockets and the Republican Party balks at subsidizing student loans. If Biden had asked what Romney planned to do for those families, the answer would have been quite different -- apparently, to use emergency rooms, and borrow money for college from relatives.

The fundamental problem with the vision offered by Romney and Ryan is that in a market economy, not everybody behaves like Romney -- they don't compensate for not supporting equal pay legislation by voluntarily hiring women, they don't care for the unemployed by cutting checks to strangers, and they don't pay incredibly low taxes so that they can generously tithe to the charities of their choice. In most cases, people simply shirk their responsibilities to others, and the state provides a powerful check on that behavior for many Americans. In particular, the state offers resources and protection so that groups who aren't politically powerful -- the unemployed, the incarcerated, young immigrants, people of color, LGBT families, women accessing reproductive care in deeply conservative areas -- can depend on a safety net that's available to everyone instead of falling by the wayside.

What makes the binder comment intuitively funny is its obliviousness to all these considerations. What makes it less comical is that with the last debate focusing on foreign policy, it's unlikely that Obama himself will have another chance to make that point. How Romney's remarks are remembered by the American public in the weeks to come will instead depend on how well progressives can convey just what's so wrong with them -- and why benevolence, however well-meaning, is a poor substitute for a political project that gives a fair shot to all of its people.

Ryan Thoreson is a 2L at Yale Law School. He holds a doctorate in anthropology from Oxford University, which he completed as a Rhodes Scholar.

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