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So, How am I Holding Up in the Age of Trump?

I haven’t made any posts since before the inauguration, and you’d probably forgive me if the first week or two of the new administration left me so broken down as unable to say anything. There’s probably some truth to that, but it’s not the whole truth; for example, circumstances outside my control left me unable to update the Pro Football Hall of Fame Watch, which I may have to reassess the criteria for and post with possibly substantial changes in July or August.

I’ve been trying to make progress on the series of political posts I started on the eve of the election, but one post in particular has proved much more involved than I expected, in part because it’s an idea for a post I’ve had going back at least to my first round of political posts in 2008, but the outcome of the recent election has resulted in an example to work with that’s far less straightforward than the 2000 election I was going to work with. Recently I’ve been letting that fall by the wayside in favor of another more frivolous project that may or may not result in new content for the site but which doesn’t make me feel much better for working on it. I was intending for this series of political posts to build up to my proposed changes to the Constitution, but the context now feels very different than it did then.

I did start a new Da Countdown on inauguration day ticking down the remaining days in the Trump administration, assuming he doesn’t suspend elections, but there hasn’t been much else. I actually have an idea for a more philosophical approach to my next political post, but it’s something that would have been better served coming out last week. And the election has inspired a bunch of other ideas for projects, but as was the case all last summer, it’s been hard for me to re-orient myself towards the project I had considered to be a prerequisite for them.

Still, I do hope to keep my “continue my streak of months with a post” posts like this one to a minimum going forward, but I suspect when my next Blog-Day post comes out I’ll once again have a pretty low mark of posts for the year.

The Music May Be Stopping for Cable Networks

It feels empty, going back to talking about television and the future of video at a time when it feels like, for a young liberal like myself, we might not have a future of any kind at all, but there was some news this week that made me reflect on one of my older posts and how the television landscape is shifting.

In 2012, Comcast was looking for something to do with its ten-year-old video game channel, G4, which had been dropped by DirecTV two years earlier and seemed to be inexorably on the wane. It eventually decided to rebrand it to the Esquire Network, a joint venture with Esquire magazine. Two weeks before the rebrand was to finally take effect, Comcast, now in control of NBC Universal, decided to rebrand the Style network as Esquire instead, figuring that Style’s female-oriented programming was now redundant with Bravo and Oxygen, and giving Esquire a slot that actually had DirecTV carriage. G4 would remain on the air under that name, endlessly rerunning its back library, until its existing carriage agreements ran out, and it was finally taken out of its misery a little over two years ago.

That Comcast was willing to rebrand Style as Esquire Network without having anything else to do with G4’s space was surprising to me, because as I wrote shortly before G4 was put out of its misery, the trend in the cable business seemed to be to constantly rebrand channels until companies found a format that stuck, holding on to established channel space and using whatever channel hadn’t caught on to launch the next format idea that came to the suits. Which brings me to this week, and the news that came out Wednesday that Comcast will be shutting down Esquire Network’s linear feed later this year, converting it to a digital on-demand service. On one level, that Comcast replaced Style, not G4, with the Esquire Network means they have now effectively killed two channels instead of one. But on another level, there’s no guarantee Comcast wouldn’t be shutting down Style now anyway, if they hadn’t already done so. In that sense, Comcast may have simply been ahead of its time, knowing that it might not have any new channel ideas with which to replace either Style or G4 – for both channels, the alternative to giving Esquire Network a try would be a full shutdown.

The notion of “cable network musical chairs” was from the start rooted in one of the dynamics captured in my book, The Game to Show the Games. As described in Chapter 7, for many years the Big Nine companies that control most of the channels on your cable lineup were able to use their popular channels to bully cable operators into carrying less popular channels. By about ten years ago, it became nearly impossible to launch a new channel from scratch unless you could convince cable operators it would have a built-in audience from the start, and since then the only channels the Big Nine have attempted to launch from scratch have been regional and college-conference-affiliated sports networks. But outright closing a network and giving up its channel space was unheard of. Until G4, the only truly national cable networks to completely shut down since the 2004 closure of CNNfn and TechTV were ABC News Now, which had highly limited distribution to begin with, and SoapNet, which only survived the launch of Disney Junior because of Disney’s inability to get cable operators to swap one out with the other. It made sense to keep a channel around, just to squat on the space, until you came up with a new idea for what to do with it, knowing that unless things became truly dire cable operators would continue to carry it.

Of course, the same phenomenon that keeps companies from launching new channels from scratch also makes it difficult to relaunch existing channels and attract enough of an audience to make up from the audience lost from the old format, especially in the age of cord-cutting where starting up a new linear network seems like a decidedly outmoded, foolish proposition, if you don’t have any of the live events that are the main purpose of linear television going forward, or any established shows moved from other networks. It’s become decidedly obvious to all parties involved that the cable network landscape is badly oversaturated, but I felt that, without cord-cutting accelerating substantially, no one had any incentive to shrink it – so long as the Big Nine could still get cable companies to carry them, they had no reason to shutter any of them and deprive themselves of a revenue stream. Rerunning old content over and over would still bring in more money than losing the space without being able to get it back if you had a better programming idea.

There is some evidence, though, that cable companies are getting more and more empowered to at least try to dump networks they see as worthless, as they look for ways to shrink their packages to deliver more value and more reason for people to sign up for them. As much as online pay-TV services like Sling TV and PlayStation Vue have failed to live up to their promise of slimmed-down channel lineups, instead carrying most of the Big Nine’s entire portfolios, they’ve still placed some pressure on the Big Nine to shrink down what they have to carry, especially coupled with traditional cable companies’ efforts to create truly “skinny bundles”.

It’s hard to say what the tipping point was. By the time A&E Networks followed through with its announced replacement of H2 with the Viceland network in February, it was already widely ridiculed despite the head of Vice boasting that it would “return millennials to cable TV”. The general consensus was that Vice had no illusions of reaching “millennials” by any means other than online, and a linear network would simply broaden who it could reach at very little cost to Vice itself with the potential to bring in additional ad revenue. Al Jazeera America shut down two months later without replacement, despite the efforts of OneAmerica News Network to take over the space, in part because it wasn’t backed by any of the Big Nine. The same goes for the October shutdown of the Pivot network, itself already a merger of the Documentary Channel and Halogen network. The shutdown of Esquire, triggered by both AT&T and Charter looking to dump it, suggests the Big Nine’s bundling practices won’t insulate them from having to cut down on their networks.

To be sure, the Big Nine will continue to play musical chairs for as long as they can – Comcast is reportedly also looking into converting Oxygen into an outlet for crime dramas – but if the shutdown of Esquire is any indication, we may finally be about to see a market correction as the cable network landscape contracts to just those networks that are absolutely necessary, or at least sustainable. Losing Esquire on its own won’t cause anyone to dump cable, but if the trend accelerates fast enough, as more networks shut down there will be less of a reason for those subscribers that remain to keep their cable subscription, and eventually we should reach an equilibrium where cable is priced low enough to actually be worth the cost for those subscribed to it, while the migration of the “lost” content to the Internet, heralded by Esquire’s conversion to a digital platform tied to the Esquire magazine web site, will minimize the damage from the contraction and increase the value of cord-cutting. We could be seeing the start of the formation of the video landscape of the future. Again, assuming there is a future.

How Third Parties Can Be Relevant, and Save American Democracy in the Process

I mentioned Duverger’s Law in the last post, which holds that in a “first-past-the-post” system such as what we have where a plurality rules, a two-party system is inevitable. Supporters of third parties constantly try to deny this, claiming some sort of conspiracy of the two major parties to convince people we have a two-party system and so discourage people from voting for third-party candidates. But it’s actually quite simple to demonstrate. Anyone old enough to remember the 2000 election saw it play out firsthand. People dissatisfied with Al Gore’s progressive bona fides decided to cast their vote for Ralph Nader, and in certain states, that gave the vote, and the presidency, to George W. Bush. By voting for a candidate closer to their views they actually elected a candidate further away from them. The obvious conclusion is that if you want to get your way, you stick with the major-party candidate closer to your views no matter what, because veering away from it is counterproductive. (Yes, I am aware that Nader defenders will claim he took equally from both candidates, but it wouldn’t have taken much of a difference in Gore’s favor to swing Florida.)

The Founders may not have been aware of Duverger’s Law, but they still took pains to avoid its consequences in the selection of the President. A majority of the electors are required to choose a President; otherwise the race falls into the House of Representatives, where a majority of states are needed to settle upon a President, recognizing, as Alexander Hamilton wrote, that “it might be unsafe to permit less than a majority to be conclusive”. That a candidate could effectively secure enough electoral votes to win the Presidency when he did not secure a majority of the vote in seven states, accounting for far more electoral votes than his winning margin, indeed when he lost the popular vote by over two million votes, yet his opponent failed to secure a majority either, would greatly offend the Founders. The only place where the Founders did not secure the process from “permit[ting] less than a majority to be conclusive” was in the selection of electors themselves. The electoral college could be greatly reformed, and made far more hospitable to third parties, simply by adding a prohibition against states awarding all their electoral votes to a candidate that didn’t win a majority. But adopting the National Popular Vote Interstate Compact, as many on the left want to do, without requiring majority rule, would throw out all the wisdom the Founders tried to put into the electoral college while (as we shall see) actually foreclosing what little hope third parties might have to win the Presidency, further entrenching the two-party system and all its problems.

So if you want there to be more than two parties, so that you have an alternative to the two most hated candidates in history, you need to move away from first-past-the-post. Perhaps you adopt something similar to the ranked-choice voting system Maine enacted on Election Day. Or perhaps you follow the example of countries like Britain and Canada, where a multitude of parties reign and effectively challenge the dominance of the major, powerful parties. Those nations use… a plurality-rules, first-past-the-post system?!?

Yes, in Britain and Canada, third parties typically target electoral districts where one of the major parties is irrelevant, allowing them to serve as an alternative to the remaining major party. The viability of third parties in Britain and Canada is usually attributed to their being parliamentary systems, where the head of state is chosen by the legislature. But it’s hard to see how that makes much of a difference. There’s nothing stopping today’s third parties from focusing on winning in specific states and districts where they can be the only viable alternative to the major parties. Indeed, such a strategy should be more viable in the United States, with its gerrymandered districts designed to be safe for one of the two major parties, than in Britain or Canada. It might even completely nullify the problem of gerrymandering. The whole point of gerrymandering is to create a few districts utterly dominated by one party, and then leave the rest of the districts with a large enough majority for the other party so as to leave a sizable underclass of supporters of the first party that are left completely disenfranchised. A party that can appeal to that underclass’s interests, while being palatable to enough members of the majority, should be able to effectively challenge for the district better than the original major party it’s replacing. Done right, possibly assisted by multiple third parties all carrying out the same strategy, it should not be possible to gerrymander your way to one-party rule; no matter how much you disenfranchise the members of one party, you only create an opening for another party to challenge you. Perhaps then district lines could be redrawn to preserve the current two-party system at the expense of giving any party “safe” seats, or they could even be drawn without regards to party preference at all, just whatever makes sense for each state, if it’s not possible to entrench any one party into power.

Under the Founders’ vision, a party looking to influence the direction of the nation should actually focus on Congress more than the Presidency – there’s a reason Congress comes first in the Constitution and why all the powers we popularly associate with the federal government as a whole are attributed to “Congress” in that first article. Indeed, until the expansion of presidential power under Woodrow Wilson, Congress was more powerful than the President – and, as the past decade of gridlock has shown, still wields tremendous power to, if not shape the direction of the country, at least check the President from unilaterally doing so.

But rather than do the hard work of building a party from the ground up, third parties continue to waste their time on moonshots to win the presidency, hoping against hope that the people will, all of a sudden and all at once, reject both major parties and that enough of them would coalesce on just one candidate (which would, of course, be theirs) to steal the presidency. Even if such a thing were to happen, it’s highly unlikely their party would hold any seats in Congress which could leave their President wholly impotent, but the fact that no third-party candidate even became relevant even in the face of the two most hated major-party candidates in history should cause some serious soul-searching in third-party offices, regardless of how much they may blame the media or the two-party system or their inability to get on the debate stage. Only a candidate with enough pre-existing celebrity as Nader can truly achieve relevance, and even he didn’t achieve any of the milestones that could have established truly lasting or at least impactful relevance beyond just tipping the outcome away from his preferred policies.

I’m fairly convinced the 5% threshold to receive funding from the federal government is actually the most anti-third party rule we have, convincing third parties that their presidential moonshots are actually a good way to create a shortcut to building a real party, and once they collect their federal funding they can actually start working on electing people at other levels. Nader didn’t achieve it, and even Gary Johnson, arguably the most qualified third party candidate since at least Nader or Perot, again going against the two most hated major-party candidates, didn’t achieve it. Without actually being able to elect enough people at lower levels to convince would-be politicians that your party is a legitimate means to achieve office, you have no mechanism to build credibility for any candidate you would field or to give them the sort of experience that would at least allow them to know what Aleppo is or name a world leader they admire. And without being able to convince activists that your party is a legitimate means to advance their causes, you’re left to become a club for people far enough outside the mainstream to complain that the two major parties don’t represent them. Johnson was probably the closest any third party is likely to come to a viable, credible candidate as long as they keep chasing the presidency, and he was despised by a large portion of the Libertarian base, his best approach, according to many analysts, being to distance himself from his own party as much as possible. Ultimately, third parties’ laser-focus on the presidency effectively precludes them from being credible and moderate enough to even achieve enough presidential votes to be worth it.

What makes the whole thing even more absurd is that the Founders may have actually intended for the United States to be something akin to a parliamentary system, but failed because of another intersection between their two big blind spots I mentioned last week. The Founders believed that no one other than George Washington would be able to win a majority of the electoral college, simply because it was too difficult for anyone else to achieve enough name recognition across all the states given 18th-century communications technology, meaning most candidates would be regional at best. Thus, the House of Representatives would pick the president on a regular basis, effectively establishing the President’s fealty to the House, but the existence of the electoral college would mean that if another Washington had enough popular will behind him, he could become President without going through the House. The rise of parties would ultimately undermine this vision, but it didn’t have to. If a third party had enough support in the right states and could effectively split the vote on a regular basis, it could regularly force an electoral college deadlock and throw the race into the House, where, presumably, a third party that strong would have a say in who becomes President – something that wouldn’t be possible under the NPVIC without ditching first-past-the-post. So the presidency, and thus the country, continues to be subject to Duverger’s Law, and the President either gets to work with a majority in Congress or butts heads with a faction he has no need to appeal to, because third parties won’t work to make Congress, and with it the Presidential race, work exactly as the Founders intended, because of their laser focus on the Presidency.

That said, if a third party became large enough to regularly throw the Presidential race into the House of Representatives, we might start running into problems that would still warrant some significant changes to the Constitution. In our “democracy uber alles” society, having the House pick the President regularly after nearly two hundred years of the people doing so more or less directly would not go over well, especially if House districts remained gerrymandered (indeed, one could argue we more or less chose a two-party system over House selection of the President in the 1820s after the way the 1824 election played out and the subsequent slow coalescing of Andrew Jackson’s opponents into the Whig party), and it might end up subverting House races if people voted for representatives as a proxy for their presidential vote, since representatives have the “real” power to pick the president, rather than voting for representatives on their own merits. (This seems to be a common phenomenon in Britain, where people effectively cast their vote for the party they want the prime minister to come from, and even happened in the United States, where direct election of Senators was enacted because people were voting for state legislators based on who they wanted to be Senator.)

All this is exacerbated by a quirk of the Constitution: when picking the President, each state gets one vote. This may have made sense when the US was seen as more of a union of individual sovereign states, where the states were primary and the union derived from them, and in a more agrarian society where the state with the most representatives at the time the Constitution was drafted was Virginia with ten, but in today’s urbanized society of mostly neutered states and a stark urban-rural divide both in the landscape and in our politics, it would be quite undemocratic for California’s 50+ representatives to have the same amount of say in picking the president as Wyoming’s one (even if it is the same way the Senate, which would have to pick the Vice President, works).

As much as Democrats may lament that large numbers of their voters only turn out in Presidential years and don’t care as much about Congress or state legislatures despite their importance, that third parties suffer from the same affliction may be far more damaging to the country as a whole. A relevant third party could have offered a real, credible alternative to Donald Trump and Hillary Clinton, would have allowed a viable option for factions within the parties rather than forcing each faction to fight to make itself heard over the other factions in the major parties and the preferences of the establishment, would break the “with-us-or-against-us” mentality engendered by the two-party system and set itself apart from the major parties in the areas where they do agree (and so allowed themselves to become a true alternative to the establishment), forced compromises instead of gridlock where appropriate, and by their very existence would have done much to ease the scourge of gerrymandering, with both of the latter two having the effect of encouraging moderation instead of leaving the two parties to slowly leave the center behind in order to appease their bases. Instead they keep laser-focusing on the presidency and wonder why the major parties keep ignoring them – and in so doing, may be complicit in the ongoing decline of our democracy. I can only hope it is not too late for them to realize it.

 

The Constitution’s Two Fatal Flaws, Part II: How the Two-Party System Turned the Presidency Into What the Founders Most Feared

In the last post I talked about the Founding Fathers’ first and most obvious of their two fatal blind spots when making the Constitution, their distrust of political parties without doing anything to prevent their formation or mitigating their effects. But the place where the rise of parties most undermined their vision was in the power of the Presidency, which was designed for a George Washington but which the parties would render tailor-made for a Donald Trump.

The Founders of course were very concerned about the tyranny of a single ruler, not only of a king but also of the governors of the colonies the king appointed, but as they deliberated on the Constitution many of them came to see the President as the safeguard against the tyranny or hubris of Congress, saw him as a way to protect against demagogues in Congress while doing little to prevent the office from being taken by a demagogue himself, feared an oligarchic conspiracy of the Senate without doing much to consider the opposite problem of a wholly impotent one paralyzed by faction, and sought to insulate him from Congress’ influence while doing surprisingly little of the reverse. Thus, after much debate, the convention finally settled on the system whereby a group of electors, determined by a process set by each state legislature but imagined to be mostly chosen by the people, would choose the President, and only if a President failed to receive a majority of the Electoral College did the House of Representatives step in to choose the President from the College’s top vote-getters. His powers were meant to serve as a check on Congress and to be in turn checked by Congress, not as a means to tell Congress what to do, but powers they were, and they provided enough of an opening for the President to seize ever more power across the decades and centuries. Doubtless the fact that George Washington was certain to be the first President, and that he was no would-be tyrant but in fact had no wish to take the office at all, was foremost on their minds. “The first man put at the helm will be a good one,” said Benjamin Franklin. “Nobody knows what sort may come afterwards.” Certainly even the opponents of the Constitution had too much respect for Washington to voice any fears that the Constitution would grant him too much power.

The expansion of presidential power has meant that every twist and turn in the fortunes of the nation inevitably gets credited or blamed to the President, even if Congress actually has more to do with them, because the President is expected to “push through the gridlock” through sheer force of will and effectively tell Congress what to do. In effect, despite our alleged anti-monarchist origins, we seem to expect the President to act as an elected king, and Donald Trump in effect presents himself as what, on some level, we want our President to be, indeed what we think he already is.

For Alexander Hamilton, that the President would bear all the responsibility for all the nation’s ups and downs was a good thing. In Federalist #70, he made the case for vesting executive power in one man rather than diffusing it among many, noting that a diffuse executive would make it harder if not impossible to attribute responsibility for any action or inaction, especially if the executive’s deliberation were kept secret. Hamilton believed that “it is far more safe there should be a single object for the jealousy and watchfulness of the people”, that if a plurality in the executive did not result in dissension and paralysis, a far more dangerous problem than in the legislature given the urgency of the decisions the executive must take, it would more likely result in the opposite problem, of a conspiracy of men using such a powerful office to destroy the liberty of the people, aided by the inability to pin responsibility on any one of them. A singular executive can be held responsible for the successes and failures of the nation, and rewarded or punished accordingly. In a republic where the executive must be re-elected, this distinguished him from the British monarch, who was insulated from all responsibility for any decisions he might make that instead devolved upon his advisors who he could overrule.

Had Hamilton foreseen the level of influence the President would come to have on the legislative process, he and the other Founders might have recognized that this degree of attribution of responsibility to the President would insulate Congress from some of the responsibility that might rightly fall to them, even to the point of depressing turnout for midterm elections. A Congress with personal animus with the President could block the passage of any bills whatsoever, even those of the utmost importance, and the President would see much of the blame fall to him, as the Republicans’ showdowns with Obama have proved.

If Hamilton did not see the rise of parties that would make such a conflict possible, it is all the more profound that he did not foresee that it would also allow the executive to obtain more and more power at the expense of the liberty of the people, thanks to a conspiracy not of an executive council but of the President’s party’s representation in Congress, who would willingly expand what circumscribed powers the Constitution gives him even into areas that are rightly Congress’s. Federalist #69 contains Hamilton’s most robust defense of the presidency as substantially more circumscribed in its power than the British monarch, yet many of his points ring hollow. “The one would have a right to command the military and naval forces of the nation; the other, in addition to this right, possesses that of declaring war, and of raising and regulating fleets and armies by his own authority,” Hamilton writes; yet the President has repeatedly, since our last truly “declared” war in World War II, sent the military to fight around the globe without Congress’ explicit permission. “The one would have a concurrent power with a branch of the legislature in the formation of treaties; the other is the sole possessor of the power of making treaties;” yet the Senate rarely applies any real influence on the formation of treaties and in any case, in practice, has little ability but to sign off on the treaty the President gives them. “The one would have a like concurrent authority in appointing to offices; the other is the sole author of all appointments”; yet in practice the Senate, once again, has little influence in changing who the President might choose for judicial and other offices except in cases of extreme disqualification, and if the President’s party is in power not even then, but even the party opposing the President has little power but to stonewall his choices in hopes of capturing the Presidency for themselves or, perhaps, forcing the President to choose someone else who might not be much better in their eyes, all while the country suffers from the continued vacancy.

Nor did Hamilton foresee that the emergence of two great, opposing forces would make the prospect of which party controlled the Presidency of profound importance, to the point of, judging by the left’s reaction to Trump’s election, threatening the liberty of the losing party, or that it would demolish the safeguards the Founders did install against a demogogue or a tyrant ascending to the Presidency. After the revelation of the CIA’s report on Russian influence on the election, Hamilton’s words in Federalist #68 were highly circulated and cited by liberals and by electors considering defecting from Trump:

Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? But the convention have guarded against all danger of this sort, with the most provident and judicious attention. They have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment. And they have excluded from eligibility to this trust, all those who from situation might be suspected of too great devotion to the President in office. No senator, representative, or other person holding a place of trust or profit under the United States, can be of the numbers of the electors. Thus without corrupting the body of the people, the immediate agents in the election will at least enter upon the task free from any sinister bias. Their transient existence, and their detached situation, already taken notice of, afford a satisfactory prospect of their continuing so, to the conclusion of it. The business of corruption, when it is to embrace so considerable a number of men, requires time as well as means…

The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States.

Perhaps Hamilton should have foreseen that when the electoral college exists solely for the purpose of choosing the President, they are less likely to deliberate on the merits of the choices given them than they are to state their intent ahead of time and allow themselves to be used as a proxy for whoever the people of each state really want to be President. Certainly if he had foreseen the rise of parties he might have reached this conclusion. In any event, the rise of parties and especially the two-party system has effectively neutered any hope that the electoral college might serve as any sort of effective check against “foreign powers…gain[ing] an improper ascendant in our councils”. All that is needed is for them to ingratiate one of their number into the nomination of one of the major parties and they will have access to an apparatus that will secure the vote of a considerable number of states, and will install electors obliged to vote for the candidate with an “R” next to his name, no matter his qualifications or lack thereof, no matter his fealty to a foreign power. For them to do otherwise, indeed, is to effectively defy the will of the people, to usurp the choice of the people under the system of election that, if it was not necessarily designed by anyone, is the system we have ended up in and which people believe ourselves to operate under, any deviation from which is inherently anti-democratic. It is quite unlikely in any case as such electors would effectively not only be rejecting a single candidate but calling into question the judgment of their whole party, when they tend to be party flacks, “corrupted” by “time” well before such a candidate even launched his candidacy, and tasked with carrying out the party’s will.

Perhaps more than any other part of the Constitution, the electoral college is difficult to defend in the context of the two-party system. Yet perhaps more than any other part of the Constitution, it is also responsible for that system. As mentioned, the increase in presidential power has resulted in the perception that the presidency is the only elected office that matters, and by not “mak[ing] the appointment of the President to depend on any preexisting bodies of men”, the Founders gave people no reason to care about any other office if the President was going to be that powerful and at least nominally directly elected by the people. Among other things, this means that third parties that set out to break up the two-party system and want to present themselves as viable alternatives inevitably put all their eggs in the Presidential basket, inevitably fail to gain any traction whatsoever (even with two historically hated candidates, Gary Johnson barely even broke three percent), and then whine about how the system is rigged against them. As the 2000 election should have demonstrated, the best-case scenario for third parties running Presidential candidates is to serve as a spoiler tipping the election to the candidate further away from their views. This actually has a name in political science: Duverger’s Law states that, in a “first-past-the-post” system like we have where a plurality rules (and which the Founders never intended), a two-party system is inevitable.

And yet the electoral college also provides more of an avenue for third parties to achieve the presidency than most of the proposed alternatives, if only they could see it and had enough patience to build up power at lower levels first. In so doing, they might alleviate many of the problems people have with our government without directly changing any laws, let alone the Constitution. The great irony is that the Founders’ two blind spots might have cancelled each other out instead of reinforcing each other, if only third parties would follow the path the Founders laid out for them, and which I lay out in the next post.

The Constitution’s Two Fatal Flaws, Part I: The Inevitability and Value of Parties

Despite the bizarre political-rally setting, I thought President Obama’s farewell address Tuesday night was one of the better ones of his presidency, certainly one of the most important, making several important points about the state of our democracy and our country and what to do and not do about it. But besides the fact that he aimed it enough at his supporters that the people who perhaps most needed to hear what he said will ignore it, I’m worried that his unwavering commitment to optimism may have led him to understate the threats to our democracy and fail to get at their root causes. In December, when the left was calling for the electors to effectively overturn the results of the election, I made many of the same points but came to two conclusions that evidently were a bridge too far for Obama: that the root of the problem was the two-party system and that truly fixing our government would have to involve making changes to the Constitution.

In other words, I saw the problems with our government as primarily structural, while Obama sees them (or says he sees them) as primarily peculiar to this moment. Obviously the particular circumstances of the moment must have something to do with our situation for us to make it over two hundred years without running into the problems we’re experiencing now, but the specifics of those circumstances are unlikely to change just because Obama hectors us to change them, and are more likely to get worse. “The splintering of our media into a channel for every taste” and the ability to take in only the facts and engage only with people we already agree with was inevitable with the rise of the Internet, a natural consequence of human nature only forestalled by the presence of a small number of media outlets able to control the national conversation to a significant extent; perhaps it’s possible to teach people to discern real facts from “fake news”, but we’re a long ways away from that and not even that close to universally recognizing it as a good thing, let alone a necessity of democracy. Obama speaks of “allow[ing] our political dialogue to become…corrosive” and “writ[ing] off the whole system as inevitably corrupt” as weakening the ties holding the nation together, as though the corrosiveness of our political dialogue weren’t an inevitable result of technology and increased popular participation in political debates and the criticisms of the system didn’t have some merit. In this context, it makes sense that Obama would speak of “rebuilding our democratic institutions” in ways that work within the system – making it easier to vote, reducing the influence of money in politics, increasing the emphasis on “transparency and ethics”, and redrawing district lines, all laudable goals but made easier if not self-correcting when more than two parties can thrive, which none of those goals help with – but treat the problem as a failure to live up to our Constitution’s ideals, rather than the Constitution itself potentially being part of the problem.

Not that the Constitution’s ideals are bad ones – far from it! But in America, we tend to revere the Founders and our founding documents almost to the point of religious devotion. If Obama can’t admit that our Constitution might be a contributing factor to our problems, calling for a Constitutional convention to greatly change the structure of our government must seem downright sacrilegious; even raising the possibility that the way the Constitution pursues its ideals ends up undermining them seems largely verboten. In order to truly confront the root causes of today’s gridlock, we are going to have to confront the reality that for all their wisdom, the Founding Fathers were after all human beings who lived nearly 250 years ago, human beings with flaws and disagreements, and that in crafting the Constitution they made some critical errors that ultimately undermined their goals.

There are two major errors the Founders made in crafting the Constitution in particular that have proven to undermine the franchise. The first and most obvious to students of American history is their distrust of political parties without appreciating the forces leading to their creation. The second was that, for all their distrust of kings, they let their hero-worship of George Washington lead them to give the presidency more power than they probably actually wanted, creating the opening that would ultimately lead to today’s king-like presidency through a procession of presidents with less humility – a process they were actually deeply aware of. The two are interrelated – the Founders hoped the Congress would stop the president from obtaining more power for himself, but they’re more likely to let the president do what he wants if they’re more concerned about their loyalty to the party than to their current office or themselves – but each has proven corrosive on their own.

The Founders believed factionalism was the result of too much popular participation in the political process – of people pursuing narrow self-interests. By granting more power to elected representatives, they believed, those representatives would be free to focus on deliberating amongst themselves, united by the quest to do what was best for the republic as a whole and the imperative to do the job for which they were elected. In the Founders’ minds, lawmakers would line up and take stands on an issue, then when the next issue came up they would line up and take sides on that issue, sides that looked completely different from the previous issue and with little apparent commonalities besides their opinion on that issue. Besides missing that even the “best men” could be subject to a more subtle form of the same sort of passions they believed the people at large were susceptible to (not to mention that this was pretty much how Britain’s Parliament worked and it resulted in the very party system they were trying to avoid), the Founders missed that even the most learned, disinterested statesmen could have legitimate fundamental definitional differences as to what was best for the republic, differences that existed amongst the Founders themselves and would unite those committed to one definition behind a given course of action while pitting them against other definitions dedicated to other courses of action, and might even lead them to believe the other side was not really interested in the welfare of the republic and that only their own side was. Some might believe in a strong central government while others believed in states’ rights; some might believe in protecting rural farmers while others believed in helping urban industries. Even among the very people that worked on the Constitution there were disagreements over what it actually allowed the federal government to do.

In the end, the Founders were probably too optimistic about the merits of voting for the person as opposed to the party. Parties may have been the result of people pursuing narrow self-interests, but organized parties control and direct the pursuit of self-interest into forms more conducive to the success of the party as a whole, presenting a coherent statement of the merits for or against a particular position from the anarchy of hundreds of individual representatives, encouraging and supporting compromise and potentially unpopular yet necessary courses of action, even if they don’t always do so in the most savory of ways. The separation of powers was supposed to prevent the system from being exploited by people with naked self-interest; Congress was supposed to have most of the power, and the President had to work with them to get anything done. Individual Congressmen couldn’t get too much power without potentially running afoul of the President, and if worst came to worst the Supreme Court could curb the President and Congress from together abridging the rights of the people. What the Constitution does not do is provide any system for curbing those who would pursue naked self-interest despite all this, something that has become far more necessary now that the Senate and Presidency are directly elected by the people, creating far more opportunity for a demogogue to achieve one of those offices. Members of Congress can only be booted out in the middle of their term by a two-thirds vote of their house (a high enough bar that it is exceedingly rarely tried), and the President can only be impeached for “high crimes and misdemeanors”, not for using the legitimate privileges of their office in a legal but self-serving way. In effect, the Constitution and the push for democracy uber alles leaves it up to the easily-manipulable people to vote out the most self-interested politicians (and as the Republican primary process proved, even if the people do try to vote against the demogogue they can end up splitting the vote and giving the demogogue the win anyway).

Despite all our polarization along partisan lines, in some ways we live in a culture significantly closer to the Founders’ intention than at any time in history, and it is proving no virtue; we now live in a world where a self-professed billionaire can run for an office he seems to treat more like a dictatorship than a presidency solely on the back of his own brand, where one particularly venal politician can bring the entire government to a standstill just to discredit the “establishment” and further his own career. Republicans may take advantage of this more than Democrats, but over the last sixteen years I have lamented that Democrats have been too moral to engage in this sort of brinkmanship; their commitment to upholding political norms, actually seek out compromise, and actually care about appealing to more than just party activists gave them a candidate for President that failed to excite those activists enough to match the enthusiasm of Trump supporters, has given them little hope of capturing the House until at least 2022, and dashed any hope of actually accomplishing any of their agenda at the national level short of favorable Supreme Court decisions – and the rise of Bernie Sanders and backlash of the party base against its establishment in the wake of Hillary’s loss (in part because of the reticence of many of Sanders’ supporters to support her even in the face of the threat posed by Trump) suggests the Democratic base is getting tired of constantly trying to appease the Republicans and constantly losing, and may be about to react to Trump’s victory and Republican control of both houses of Congress similarly to how the Republicans reacted to Obama’s similar victory. Sanders supporters who seethe at the DNC tipping the scales to Hillary should note that a similar degree of control at the RNC might have saved the country from Trump.

In Federalist #10, James Madison argued that the only way to prevent the tyranny of a majority of citizens from trampling over the rights of a minority was a system of representation, whereby “the public views” would be filtered “through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.” Demagogues and evil men might obtain high office, but this would be unlikely at large scales, since there would be more wise men, it would be harder for demagogues to charm a larger number of people, and the diversity of their opinions would be more likely to center on wiser men. A large nation, Madison argued, would have a greater diversity of interests, which would make it harder for any of them to form a majority with which to pursue their views on the whole, and even if they did they would be torn apart by internal disagreements:

The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary.

Madison recognized that if factions could not be avoided, the best outcome would be a large number of them, representing a diversity of competing interests, that could not band together to pursue a single policy at the expense of the minority. This, he would soon see, would not come to pass. The Constitution did nothing to prevent the diversity of interests in the United States from coalescing around two major political parties, or from being able to push their agenda on the rest of the country once they were able to form a majority. Nor could Madison foresee today’s great urban-rural divide and the formation of two great factions with diametrically opposed views hoping to achieve enough control of government to enact their agenda, with few who honestly combine views from each side, let alone hold completely novel views, and fewer who are active enough in politics to exert their own influence on the system.

It’s impossible to know what, exactly, the Founders would have done differently if they had known that the rise of parties was going to be inevitable. Likely they would have sought to find a way to direct the passions of each faction towards the good of the republic while mitigating the negative consequences they feared – perhaps incorporating the parties into the system of checks and balances in some way and creating structural, not merely cultural, incentives to compromise. If Federalist #10 is any indication, one thing they might have done would be to try to ensure that as many definitions of the good of the republic would be represented as possible, under the theory that compromise is more likely when there are many parties that are likely to find common ground with other parties than when you have two parties diametrically opposed to each other. Part of the reason for our current malaise is that we have too few political parties for the diversity of our electorate, with the result that the parties, which should be private organizations to exert a particular viewpoint on the levers of politics, have effectively become fundamental parts of the political process themselves, with the primary process being seen as every bit as important a means to express one’s duty as a citizen as the general election. In a functioning democracy, party bosses should have every right to set the rules to run their parties as they see fit, but when the parties are every bit as much a part of the political system as Congress, for them to do so smacks of corruption and twisting the political system itself to serve entrenched interests, so the parties find themselves torn between ensuring party unity, representing all the factions of their base, presenting an electable candidate, and resisting insurgency. So the Republicans are hijacked by activists to nominate perhaps the most anti-democratic major-party candidate in American history, while the Democrats’ greater control of the process ends up alienating the very activists that, in the modern American political system, they so desperately need. A healthy party system might have parties for the following viewpoints (some of which might merge with others):

  • The free market almost always knows best, and government should be shrunk and as many functions given to private enterprise as possible.
  • Government should serve to curb the excesses of the free market and provide avenues of opportunity for people to move into the middle class or the rich.
  • The capitalist system needs to be torn down and replaced with a socialist system with government at its center.
  • America is a federation of states, and so the states should be given broad leeway to run themselves as they see fit, as much as is feasible.
  • Only a singular strong, powerful leader can make America great again.
  • America is a Christian nation and should be organized around Christian principles.
  • People should have freedom to do whatever they want without impinging on other peoples’ freedom, whether that’s to get an abortion, marry someone of the same gender, own a gun, or start and run a business as they see fit.
  • Government needs to act on behalf of the environment and future generations that cannot have a direct voice in government.
  • The only goal that matters is for America to increase its GDP as much as possible.
  • America should focus on protecting its own working class from the abuses of the rich and competition from overseas.
  • America should use its power to spread the ideals of democracy all over the world and safeguard the current world order of peace.

One thing I’m fairly certain the Founders would have done differently if they had known about the inevitability of parties is greatly curb the power of the Presidency, if not get rid of it and have the head of government be chosen directly by Congress. The rise of the two-party system would make it much easier for the President to continue to accrue power across the decades while losing little to none of it, while the method of electing the President himself would end up being the single biggest factor in preventing more than two parties from forming. We’ll get into that in the next post.

Predictions for the Pro Football Hall of Fame Class of 2017

The Pro Football Hall of Fame’s selections are performed by a panel of 46 leading NFL media members including representatives of all 32 NFL teams, a representative of the Pro Football Writers of America, and 13 at-large writers.

The panel has selected a list of 15 finalists from the modern era, defined as playing all or part of their careers within the last 25 years. A player must have spent 5 years out of the league before they can be considered for induction into the Hall of Fame. Players that last played in the 2011 season will be eligible for induction in 2017.

During Super Bowl Weekend, the panel will meet and narrow down the list of modern-era finalists down to five. Those five will be considered alongside one senior candidate, selected by a nine-member subpanel of the larger panel last August, and two contributors (not players or coaches), selected by another nine-member subpanel, for a total of eight. From this list, at least four and no more than eight people will be selected for induction into the Pro Football Hall of Fame.

My prediction for the Pro Football Hall of Fame Class of 2017 is:

LaDainian Tomlinson
Kurt Warner
John Lynch
Joe Jacoby
Don Coryell
Kenny Easley
Jerry Jones
Paul Tagliabue

Hall of Fame Game: Chargers v. Cardinals

A bigly disappointing blog-day.

In certain corners of the Internet, it has long been a meme to talk about how terrible a year 2016 has been. In my case, it has been no exception. In fact, the horribleness of 2016 in the wider world weighs all the more heavily on me, even if for rather irrational, self-centered reasons.

The year started out so well. I published my book and announced it in my last blog-day post, and during the first half of the year I supplemented the book with numerous posts containing content that, for one reason or another, didn’t make it into the book, as well as posts containing my comments on the latest developments from the world of cord-cutting. I also started making plans for how to parlay the book into something that might result in me making some actual money on a regular basis, as well as weighing ideas for my next book.

And then Donald Trump won the Republican nomination, and my productivity ground to a complete halt.

Once Trump had the nomination secure, I decided I had to write a series of posts about what it meant for American democracy and how to pull it back from the abyss. The problem is, history has proven time and time again that it’s a lot harder for me to write political posts than posts on more frivolous topics. That was the case in the lead-up to the 2008 election, it was the case when I attempted to turn my short-lived Sandsday comic into a discussion of global warming, and it was the case with my Occupy Tea Party series, which didn’t go beyond two or three posts on specific topics. In the case of Trump, writing those posts meant diving into the muck of the state of American politics, and doing research on the thinking behind certain elements of the Constitution. It was far easier for me to play games and do other frivolous things all day.

In the end, I didn’t put out the first post in the series until literally the day before the election, and I still haven’t put out the intended second post. In the meantime, from June until the Flex Schedule Watch posts started in October I was once again making only one post a month. This is only the 48th post since my last blog-day post, breaking a record I already hadn’t thought would even be set as low as it was. And after Trump’s election, I couldn’t help but shake the feeling that if I had put it out earlier, started the conversation before the election, perhaps a Trump victory might have been avoided as the American people focused on a more productive avenue to reform the system – or even that if I had written all the political posts I had wanted to over the last decade and worked to popularize them, we wouldn’t have come so close to the abyss to start with.

It’s a solemn occasion for another reason: this post marks the 10-year anniversary of Da Blog. It’s been a long time since I made any posts while cowering in a bus stop shelter, but it has not, so far, been the ticket to greatness I’ve hoped it would be. Perhaps this is just my disappointment with the last year talking, but Da Blog has more often than not confronted me with my own lack of work ethic in achieving any of my dreams, something that seems to have actually gotten worse as time has gone on; my posting frequency seemed to fall through the floor after I graduated from college and moved to LA with my dad, when you might expect the opposite to happen. Certainly Da Blog has contained any number of things as it has gone on, from being a home to my sports projects to housing webcomic reviews to my ongoing thoughts on the future of the Internet to covering the sports TV wars to tracking the evolution of the video market. But it has remained little more than a placeholder while I think about working on the projects I really want to, the only one of which that has come to fruition was the book, and that only because of my dad’s pushing and even then taking much longer than it had any right to.

I would like to think the next decade of Da Blog will be more productive than the last decade – that I’ll actually start gaining an audience for my writings and can actually start making an impact in the wider world. But the way this year has gone I’m not even sure civilization as we know it will exist in a decade, and I’m certainly not optimistic that we haven’t just thrown away our last chance to stop global warming from destroying civilization for us. I’ll start Year Eleven sometime after the holidays (and before the inauguration) by finishing up the series on the Constitution, including at least one post I’ve been meaning to write since 2008, and presenting my ideas for how to refresh the Constitution. After that is anyone’s guess, because it feels like it’s impossible to tell what might possibly happen next anymore. I’ve swung back around to weighing ideas for books, and as a result it may well be that going post-light every year may just be the norm from now on, but I also keep having personal projects nagging at the back of my mind to keep me wanting to come back to sports TV ratings. I may also parlay the Constitution series into a broader overview on just how society went wrong and the conflict between it and human nature. Or the pressure to actually make money may move me to start writing for other outlets, no matter how frivolous the topics I’d write about may seem. There are any number of directions I could end up going from here, and I don’t know if I’m going to end up taking any of them.

Sunday Night Football Flex Scheduling Watch: Week 15

NBC’s Sunday Night Football package gives it flexible scheduling. For the last seven weeks of the season, the games are determined on 12-day notice, 6-day notice for Week 17.

The first year, no game was listed in the Sunday Night slot, only a notation that one game could move there. Now, NBC lists the game it “tentatively” schedules for each night. However, the NFL is in charge of moving games to prime time.

Here are the rules from the NFL web site (note that this was originally written with the 2007 season in mind and has been only iteratively and incompletely edited since then, hence why at one point it still says late games start at 4:15 ET instead of 4:25):

  • Begins Sunday of Week 5
  • In effect during Weeks 5-17
  • Up to 2 games may be flexed into Sunday Night between Weeks 5-10
  • Only Sunday afternoon games are subject to being moved into the Sunday night window.
  • The game that has been tentatively scheduled for Sunday night during flex weeks will be listed at 8:15 p.m. ET.
  • The majority of games on Sundays will be listed at 1:00 p.m. ET during flex weeks except for games played in Pacific or Mountain Time zones which will be listed at 4:05 or 4:15 p.m. ET.
  • No impact on Thursday, Saturday or Monday night games.
  • The NFL will decide (after consultation with CBS, FOX, NBC) and announce as early as possible the game being played at 8:15 p.m. ET. The announcement will come no later than 12 days prior to the game. The NFL may also announce games moving to 4:05 p.m. ET and 4:25 p.m. ET.
  • Week 17 start time changes could be decided on 6 days notice to ensure a game with playoff implications.
  • The NBC Sunday night time slot in “flex” weeks will list the game that has been tentatively scheduled for Sunday night.
  • Fans and ticket holders must be aware that NFL games in flex weeks are subject to change 12 days in advance (6 days in Week 17) and should plan accordingly.
  • NFL schedules all games.
  • Teams will be informed as soon as they are no longer under consideration or eligible for a move to Sunday night.
  • Rules NOT listed on NFL web site but pertinent to flex schedule selection: CBS and Fox each protect games in five out of six weeks starting Week 11, and cannot protect any games Week 17. Games were protected after Week 4 in 2006 and 2011, because NBC hosted Christmas night games those years and all the other games were moved to Saturday (and so couldn’t be flexed), but are otherwise protected after Week 5; I’m assuming protections were due in Week 4 again this year, and the above notwithstanding, Week 10 is part of the main flex period this year, as it was in 2006 and 2011. As I understand it, during the Week 5-10 period the NFL and NBC declare their intention to flex out a game two weeks in advance, at which point CBS and Fox pick one game each to protect.
  • Three teams can appear a maximum of six games in primetime on NBC, ESPN or NFL Network (everyone else gets five) and no team may appear more than four times on NBC, although starting this year Week 17 is exempt from team appearance limits. No team starts the season completely tapped out at any measure; nine teams have five primetime appearances each, but only the Texans don’t have games in the main flex period, though they don’t have any early-flex games left either. A list of all teams’ number of appearances is in my Week 5 post.

Here are the current tentatively-scheduled games and my predictions:

Week 17 (January 3):

AFC Playoff Picture
DIVISION
LEADERS
WILD CARD WAITING IN
THE WINGS (7-7)
SOUTH
48-6
510-4
8-6
NORTH
39-5
69-5
8-6
WEST
211-3
8-6
10-4 8-6
EAST
112-2
8-6
CLINCHED
NFC Playoff Picture
DIVISION
LEADERS
WILD CARD WAITING IN
THE WINGS (6-8)
SOUTH
49-5
510-4
8-6
NORTH
39-5
68-6
8-6
WEST
29-4-1
8-6
CLINCHED 7-6-1
EAST
112-2
7-7
10-4
  • Tentative game: None (NBC will show game with guaranteed playoff implications).
  • Possible games: Texans-Titans, Packers-Lions, and though it’s an extreme long-shot, Andrew DeCaro will be happy to know there is a situation where Patriots-Dolphins gets picked. Both of the division title games have a very strong chance of happening, though, and Pats-Dolphins is even dependent on one of them happening, so realistically this is about as simple as last year without the NFL being stuck without a loser-out game… not that they’ll necessarily appreciate it.
  • Packers-Lions will be picked if: The Packers win OR (the Titans lose AND the Texans or Colts win). I saw the following tweet on my feed Monday:

    Certainly Packers-Lions is the game NBC would prefer to any alternative, but this overlooks two wrinkles: the possibility that the loser would still make the playoffs, and the fact the Lions play Monday night, which the NFL might be uncomfortable waiting for to announce the Week 17 SNF game, to say nothing of the rest of the schedule. Indeed, the former is pretty realistic at the moment (and cannot be guaranteed not to be the case if the Packers win), even if right now the strength-of-victory tiebreaker is needed to break the tie between the Packers and Bucs. Would the NFL take an NFC North title game that’s not loser-out (the exact scenario that, last year, prompted the league to exempt Week 17 from appearance limits this year) over an AFC South title game that is, especially since the winner of the former probably won’t receive a first-round bye (a Seahawks loss would make it much easier for the league to justify picking this game over Texans-Titans) and in fact the game may just determine home field for a rematch the following week? We’ll see. (That said, if the Texans clinch the AFC South – UPDATE: or the Colts can still steal the division – the league might not wait for Monday to move this game into Sunday night, on grounds that even if the Packers lose and Lions win to clinch the division, they could still be playing for seeding while the Packers will likely be fighting for their playoff lives, and the league wouldn’t have any better options.)

  • Texans-Titans will be picked if: The Titans win OR the Texans and Colts lose. During “Football Night in America” the announcers repeatedly played up the prospect of a Packers-Lions division title game. I didn’t watch the whole show but I saw nothing about Texans-Titans, which might be in even better shape with the two teams tied at the top of the division. It’s also unlikely, though not impossible, for the loser of this game to still make the playoffs. (UPDATE: Turns out I forgot about the Colts being a game back and the possibility of them stealing the division if they take a three-way tie into Week 17 and win alongside the Titans, even though I mentioned it last week. This is why I shouldn’t write these posts late at night.) Actually…
  • Patriots-Dolphins might be picked if: The Dolphins lose AND the Texans and Titans win AND the Ravens lose AND (the Broncos lose OR the Dolphins have already clinched the strength of victory tiebreaker over the Broncos) AND the Patriots win AND the Raiders lose. The Titans beat the Dolphins head-to-head, while if the Dolphins lose out while the Texans split to lose the division, the Texans would have the better conference record. But the Ravens and Broncos need to lose or else it might not be a win-and-in game for the Dolphins, and if the Patriots still haven’t secured the #1 seed the league might prefer this game be played the same time as the AFC West games. And even then, this scenario still wouldn’t guarantee that the Texans-Titans loser made the playoffs even with a Dolphins loss. (It’s also worth noting that if the Raiders have clinched the AFC West, then this game needs to go in the 4:25 time slot to guarantee both the Raiders and Chiefs are playing for something, in which case the NFL might prefer to give Texans-Titans a guaranteed national audience rather than let CBS bury it behind the ratings magnet of the Patriots or in the 1 PM ET time slot, even if Packers-Lions is also an option, unless they’re in the mood to cross-flex one of these games.)

At a Time of Constitutional Crisis, A Call for Radical Bipartisan Reform

Before the electoral college has even voted, we find ourselves on the verge of a constitutional crisis. Over three hundred electors find themselves in the unenviable position of voting for a man who seems to see the Presidency as a personal tyranny, a man with no political experience and little apparent interest in the minutia of governing, who has evidently discarded his pledge to “drain the swamp” and filled many cabinet positions with fellow businessmen and people opposed to the very roles they are to be lifted to, who was only elected because, many people believe and the CIA has seemed to affirm, Russia selectively expedited the leaking of information damaging to Hillary Clinton’s candidacy while doing nothing public with the information they obtained by hacking the Republican National Committee – yet this is just another thing being viewed through the lens of partisan politics, something the left can cling to as a mitigating factor in Donald Trump’s election yet which Trump’s supporters disclaim the importance of, because of Republicans, according to the same reports, viewing their own power as more important than America’s independence from interference by foreign powers.

Unwilling to come to terms with a Trump presidency, many on the left are now calling on Republican electors to overrule the vote of the people that put them in their position, and the vote of their party in the primary process, to choose a more “moderate” Republican, not even recognizing the undemocratic nature of what they are asking the electors to do, considering the risks associated with a Trump presidency to be worth any measure taken to avert it – in effect, to send a message to Trump’s supporters that even if their anti-establishment champion is elected, the establishment will still be able to overrule their vote and install one of their own as President to protect their prerogatives. The left has little to say about the reaction Trump’s supporters might have to such a turn of events, which might range from widespread rioting on the low end to full-on civil war on the high end. Even as someone who considers a Trump presidency similarly unthinkable, the only thing such a measure has to recommend it is that it would create what might be a once-in-a-lifetime bipartisan consensus to abolish or reform the electoral college, the left because of its effect to overrule the popular vote even when it supports the “losing” candidate by over two million votes, Trump’s supporters because of its members’ ability to overrule the very choice of the people that put them in their position if the powers that be object strenuously enough – but I’m already seeing evidence that if the electors did succeed in keeping Trump from the White House, the left would praise the electoral college to high heaven, forgetting that unless you believe Trump’s claim to have won by an even bigger margin if he had been forced to appeal to the popular vote, the electors’ intervention was only needed because of the electoral college in the first place.

But the electoral college is only one aspect of how we got here. So is the power-hungry Republican party that will take any measure to protect, increase, and perpetuate their own power, disenfranchising those that disagree with them, going along with whatever those that agree with them choose no matter the danger to the republic, and engaging in political brinksmanship to deny even the most necessary actions if Democrats would take the credit for it. So is the unaccountable establishment that consists both of the aforementioned Republicans and of the Democratic Party that many believe went all-out to secure the nomination of Hillary Clinton even in the face of the left’s own populist uprising in support of Bernie Sanders, a candidate who might have proven the anti-Trump forces to be more about Trump himself than the establishment as a whole, and rendered themselves vulnerable to the Trump movement without realizing it until it was too late. Regardless of what happens on Monday, if we are to avert a civil war and truly take power back from the establishment, we need a bipartisan effort to hold both parties accountable and reform our system of government to be properly responsive to the people. True change was never going to come from electing a single president, whether it be Donald Trump, Bernie Sanders, Hillary Clinton, or even Barack Obama, but from constant, hard work of activists on all sides to put pressure on people on all levels of government. We need to recognize that when we dumped all of Trump’s supporters into the “basket of deplorables”, or dismissed his opponents (for that seems to be more true than to speak of Hillary’s supporters) as “SJWs” and “cucks” who were deluded by the establishment’s lies, or generally allowed culture-war issues to define the differences between us, we were effectively doing the establishment’s work for them. So long as we remain divided, neither side will really get what they want and will be blinded by their hatred into losing sight of the areas of common ground, all while the establishment continues to profit at the expense of the people.

Our reform effort must begin by recognizing the systemic nature of the problems infecting our government and our political discourse, specifically the two-party system. Until recently, the two-party system protected the establishment’s prerogatives by presenting a mostly unified, centrist platform and finding a few wedge issues to nudge people into voting for one side or the other, both of which would ultimately pursue the same policies outside those wedge issues. There were good reasons for the parties to take that approach, but also good reasons for people to feel disenfranchised. The people have taken greater control over the parties and they have become diametrically opposed as a result, but the two-party system is if anything even more insidious now, as moderates and anyone outside the two great camps have effectively been purged. Yet it took someone with Trump’s charisma and cult of personality for anyone truly anti-establishment to capture a major party’s presidential nomination. Anyone with misgivings about Clinton or Trump were obliged to vote for them, as they had for their respective nominees in every previous election since at least 2004, if for no other reason than the control the winning candidate would have over the future of the Supreme Court. Perhaps if third parties offered a more viable choice than Gary “what’s an Aleppo?” Johnson or Jill “I’m not anti-vax but…” Stein, people with misgivings about both candidates could have rallied around such a candidate, but even then such a candidate would have little to no direct support in Congress, and third parties’ inability to field a viable candidate ultimately stems from the same source. With Congress in gridlock as the two great forces try to stop each other from getting their way, the Presidency is perceived, whether true or not, as being of pivotal importance, and since only one man can be President, the entire direction of the nation for four years turns on this one election – and there are only two directions it can go.

In short, the establishment already has less power than ever, yet the health of the Republic as a whole has suffered more than anything else, because we are trying to work within a system that can’t accommodate the situation we find ourselves in today. The irony is that we might be about to play out one of the exact scenarios the Founding Fathers feared might be the dissolution of the republic, which they tried so hard to prevent in the Constitution, in large part because of that same Constitution’s shortcomings. That’s why on the eve of the election, I issued a call for a constitutional convention to update the Constitution for today’s realities, or at least to form a bipartisan movement to work within the Constitution to uphold its values, to make our government work again, to make it responsible to the people again, to make our system of checks and balances strong again, to make our values real again – because only then will we truly be able to make America great again. I hope people from all sides of the aisle can put aside their differences and join forces to carry out this work, or else there will be nothing to stop our descent into the abyss.

Sunday Night Football Flex Scheduling Watch: Week 14

NBC’s Sunday Night Football package gives it flexible scheduling. For the last seven weeks of the season, the games are determined on 12-day notice, 6-day notice for Week 17.

The first year, no game was listed in the Sunday Night slot, only a notation that one game could move there. Now, NBC lists the game it “tentatively” schedules for each night. However, the NFL is in charge of moving games to prime time.

Here are the rules from the NFL web site (note that this was originally written with the 2007 season in mind and has been only iteratively and incompletely edited since then, hence why at one point it still says late games start at 4:15 ET instead of 4:25):

  • Begins Sunday of Week 5
  • In effect during Weeks 5-17
  • Up to 2 games may be flexed into Sunday Night between Weeks 5-10
  • Only Sunday afternoon games are subject to being moved into the Sunday night window.
  • The game that has been tentatively scheduled for Sunday night during flex weeks will be listed at 8:15 p.m. ET.
  • The majority of games on Sundays will be listed at 1:00 p.m. ET during flex weeks except for games played in Pacific or Mountain Time zones which will be listed at 4:05 or 4:15 p.m. ET.
  • No impact on Thursday, Saturday or Monday night games.
  • The NFL will decide (after consultation with CBS, FOX, NBC) and announce as early as possible the game being played at 8:15 p.m. ET. The announcement will come no later than 12 days prior to the game. The NFL may also announce games moving to 4:05 p.m. ET and 4:25 p.m. ET.
  • Week 17 start time changes could be decided on 6 days notice to ensure a game with playoff implications.
  • The NBC Sunday night time slot in “flex” weeks will list the game that has been tentatively scheduled for Sunday night.
  • Fans and ticket holders must be aware that NFL games in flex weeks are subject to change 12 days in advance (6 days in Week 17) and should plan accordingly.
  • NFL schedules all games.
  • Teams will be informed as soon as they are no longer under consideration or eligible for a move to Sunday night.
  • Rules NOT listed on NFL web site but pertinent to flex schedule selection: CBS and Fox each protect games in five out of six weeks starting Week 11, and cannot protect any games Week 17. Games were protected after Week 4 in 2006 and 2011, because NBC hosted Christmas night games those years and all the other games were moved to Saturday (and so couldn’t be flexed), but are otherwise protected after Week 5; I’m assuming protections were due in Week 4 again this year, and the above notwithstanding, Week 10 is part of the main flex period this year, as it was in 2006 and 2011. As I understand it, during the Week 5-10 period the NFL and NBC declare their intention to flex out a game two weeks in advance, at which point CBS and Fox pick one game each to protect.
  • Three teams can appear a maximum of six games in primetime on NBC, ESPN or NFL Network (everyone else gets five) and no team may appear more than four times on NBC, although starting this year Week 17 is exempt from team appearance limits. No team starts the season completely tapped out at any measure; nine teams have five primetime appearances each, but only the Texans don’t have games in the main flex period, though they don’t have any early-flex games left either. A list of all teams’ number of appearances is in my Week 5 post.

Here are the current tentatively-scheduled games and my predictions:

Week 17 (January 3):

AFC Playoff Picture
DIVISION
LEADERS
WILD CARD WAITING IN
THE WINGS (6-7)
SOUTH
47-6
510-3
7-6
NORTH
38-5
68-5 5-7-1
7-6
WEST
210-3
8-5
10-3 7-6
EAST
111-2
7-6
8-5
NFC Playoff Picture
DIVISION
LEADERS
WILD CARD WAITING IN
THE WINGS (5-7-1)
SOUTH
48-5
59-4
8-5
WEST
38-4-1
68-5
5-7-1
NORTH
29-4
7-5-1
2 teams at 7-6 7-6
EAST
111-2
7-6
9-4
  • Tentative game: None (NBC will show game with guaranteed playoff implications).
  • Possible games: Giants-Swamp, Texans-Titans, Panthers-Bucs, Jaguars-Colts, Packers-Lions, Patriots-Dolphins, Raiders-Broncos, Chiefs-Chargers.
  • Chances of Texans-Titans: 35 percent. With these two teams tied at the top of the division and the Colts a game back, there are only two main obstacles to this game being flexed to NBC: the severe lack of name value of the teams and the possibility of the loser still picking up a wild card spot, and the latter isn’t too big a concern right now. With Houston holding a perfect division record including one game over the Titans, while the Titans have only one division win, this game would at least be a candidate if the teams were either tied or if the Titans took a one-game lead into Week 17; that perfect division record also means that the Colts could be tied with the Texans in the latter scenario and still allow this to be a division title game. But the Colts can’t be tied for the division lead heading into the final week, and NBC might prefer virtually any other game.
  • Chances of Packers-Lions: 25 percent. The Packers have a game in hand over the Lions so they only need to make up one game to make this a division title game, but they have the twin problems of the potential of the loser still making the playoffs and the Vikings gumming up the waterworks. Even then, so long as the Packers beat the Vikings on Christmas Eve the Vikings would lose a tiebreaker if they managed to nab a share of the division lead, with the Packers winning the three-way tiebreaker if it came to that. What may be the biggest problem is that the Lions play on Monday night Week 16, meaning this game may have to be a division title game no matter what happens there – in other words, the Packers may have to make up a game this week and then beat the Vikings – but if that happens NBC would gobble this game up in a heartbeat.
  • Chances of Giants-Swamp: 15 percent. The Giants and Bucs have identical conference records with nothing but conference games remaining, so if they finished tied the Bucs would win the tiebreaker. So if the Giants and Bucs enter Week 17 tied with Washington a half-game behind both, then the loser of this game is out as they would fall behind the Bucs no matter what, while the winner should get in if they can’t be leapfrogged by an NFC North team.
  • Chances of Raiders-Broncos: 10 percent. The Raiders have a game in hand over the Broncos but have only a one-game lead in divisional games, so depending on what games the Raiders lose or Broncos win the Broncos might only need to make up one game. But this game would also need the Dolphins, or (less likely) teams in other divisions, to cooperate in order to eliminate the loser, and both AFC West games are dependent on Broncos-Chiefs as the Christmas night game.
  • Chances of Patriots-Dolphins: 6 percent. The Dolphins would lose the common games tiebreaker to either the Raiders or Broncos, so if they all entered the week tied this game would be closer to a win-and-in, lose-and-out game than that one, for reasons described here, assuming the AFC North or South isn’t a factor… and assuming the Patriots have nothing left to play for, because if they’re still fighting for seeding the league would probably prefer to have them playing at the same time (or earlier) as the Chiefs. The flip side is that the Dolphins can still win the division if they win out and the Patriots lose out, and the Patriots aren’t even guaranteed a playoff spot yet; I don’t know if that’s more or less likely as a scenario (and I’m not sure the Patriots can be guaranteed to be eliminated from the playoffs with a loss before the rest of the Week 17 games), but it might be more likely to put this game in primetime. If the chances I give this game seem high to you, think of it as 3 percent for each of these scenarios.
  • Chances of Jaguars-Colts: 4 percent. Similar to the first Pats-Dolphins scenario above but under slightly different conditions, namely the Colts and Titans being tied for the division lead by a game over the Texans. The Colts swept the Titans so they would get in with a win, but if the Texans win and the Colts lose then the Texans’ sweep of both teams would give them the division. But this game might be even less appealing than Texans-Titans, so it would be an absolute last resort.
  • Chances of Chiefs-Chargers: 4 percent. Also similar to Pats-Dolphins, this game is also dependent on a three-way tie but for the opposite reason: the Chiefs swept the Raiders and the Broncos can’t beat them on divisional record, so if the Chiefs collapsed to the point all three teams were tied for the division lead, the Chiefs would win the division with a win no matter what happened with the Raiders and Broncos. But between this and Jags-Colts, I don’t know which scenario is less likely or which game is less desirable.
  • Chances of Panthers-Bucs: 1 percent. Unlike the other games that only matter to one team, this one isn’t nearly as cut and dry, and in fact I’m not sure a scenario even exists where this game would be picked. The best-case scenario I can find for this being a win-and-in, lose-and-out game for the Bucs is if you took the scenario for the Giants game above and moved Washington a half-game ahead of the Giants and Bucs; then, if the Giants lose and the Bucs win the Bucs would get the 6 seed if no NFC North team intervenes, if the Giants and Bucs lose the Bucs could still make the playoffs unless an NFC North team intervenes, but if the Giants win and the Bucs lose then the Bucs are out. But even that requires the NFC North to cooperate in each direction, making it difficult if not impossible to think of a situation where this game would be a true candidate but Packers-Lions was not.