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.

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.

The Democrats Lost Because They Spent Too Much Energy Fighting the Culture War

As I repeatedly checked social media last night and throughout the day today, somehow proving myself a glutton for punishment and wallowing in the depression and despair of my fellow liberals, a common theme in the posts I saw was thinking about all the people who would endure very real suffering in a Trump-Pence administration, the Mexican immigrants who would face deportation, the Muslims who would face ratcheted-up xenophobia, the young people who would lose their health insurance if Obamacare was scrapped without any meaningful replacement, the young unmarried women who could not only lose their access to contraception and other needed care but could see Roe v. Wade itself scrapped by a newly re-energized conservative Supreme Court majority, the gays and lesbians whose right to marry could also be scrapped by said majority, the transgender people that could see efforts like North Carolina’s bathroom law made the law of the land, and many others besides who could lose all the progress made during the Obama era if not before.

Obviously, if you’re an immigrant, Muslim, unemployed young person, sexually active unmarried woman, a member of the LGBT community, or a bleeding heart liberal who cares about all these groups, all these issues matter to you a great deal, but clearly they don’t matter enough to a large portion of the country to move them to vote for Hillary Clinton. What mattered to them was “draining the swamp” in Washington, “taking their country back”, and doing something about their perceived economic malaise. While the left wanted to take on Wall Street, lower the gap between the 99% and the 1%, and generally improve the economic life of the nation, until Bernie Sanders came along the closest they came to actually doing anything about it was a brief flowering of aimless protests known as Occupy Wall Street that quickly fizzled into nothingness. Instead the left spent the Obama era making life better for all those marginalized groups, especially the LGBT community, by shaming states that passed particularly anti-LGBT or anti-immigrant bills and supporting gay marriage efforts leading to the Supreme Court’s Obergefell decision. In retrospect, it was the biggest mistake they could have made.

On the eve of the 2008 election, I said that after the abuses of the Bush years, the Democrats had a chance to give themselves a blank check for a generation. They have had only mixed success, and one of their biggest failings was the inability to improve the fortunes of middle America. To be sure, focusing on LGBT rights and the rights of other marginalized groups didn’t have monied interests like Wall Street and oil companies allayed against them, and often those groups were actually on the left’s side on those issues, so taking on those monied interests would have been much harder in the short run. But had Obama led eight years of increasing peace, prosperity, and palpable improvement in the fortunes of the middle and working class, it would have given much of the country reason to trust the Democrats on everything else, making it easier for the left to make life easier for those marginalized groups. Instead, middle America got the sense that things were getting better for all the Others but that they themselves were treading water at best, which led them to grow resentful of the “liberal elite” leading the country in a direction that they perceived would leave them behind, dashing the left’s hopes of electoral success and making it harder to implement the rest of their agenda, or of keeping the gains they did make.

Again, calling last night a victory for hatred, misogyny, and intolerance, as I’ve seen many on the left do, is probably overstating things; I’m of the opinion that last night can be explained in two words, the economy and “change”. Given the left’s victories everywhere except control of federal offices, it’s clear that most Americans broadly agree on the left’s agenda, but when it comes to federal office, the people on which the election hinges care only about those two things (and as a result, I’m now convinced Sanders would have crushed Trump in a landslide). By not properly focusing on the economy, though, the left accidentally stoked resentment towards what they were doing, allowing that hatred and intolerance to come to the fore, while the left didn’t recognize the predicament they had placed themselves in or its severity until it was too late.

Donald Trump and the Crisis of American Democracy

Our long national nightmare is, one might hope, almost over. Hopefully it does not prove to be just beginning… and hopefully it does not prove to be a precursor of bigger and longer nightmares to come.

We are, at long last, coming to the end of one of the most bitter, divisive, and depressing presidential elections in recent memory, between the two most disliked candidates on record, and it would be fruitful at this time to stop and figure out how we got here. What does Donald Trump’s takeover of the Republican party mean for the party and the nation? How is it that one of the two major parties’ nominees for President came to be a bloviating gasbag with policy proposals that thinking people almost unanimously agree portend disaster and who showed every sign of being the closest America has come to electing Hitler himself, how did the Republican elites show so much impotence in the face of his movement, and how did the prospect of his election prove to be a terrifyingly real, if somewhat distant, possibility even in the weekend before the election? Is it a party’s base wresting control of the party away from the elites and going against every modicum of common sense the elites try to warn them about? Is it the natural conclusion of those same elites feeding that same base a steady diet of racism and xenophobia, creating a monster they don’t deserve any sympathy for losing control over? Is it the result of a bipartisan revolt over the influence of money in politics that’s attracted Republicans to a man rich enough not to need to be bought and Democrats to the people-powered campaign of a Bernie Sanders, or is it simply a group of Americans falling in love with a charismatic strongman?

The truth is, as completely unexpected as the rise of Donald Trump may have been at the time, in many ways it is but the culmination of the trends rendering our democracy increasingly dysfunctional over the past decade and a half. It is the result of the increasing polarization of the country during the Bush era, creating two sides increasingly unable to speak to one another and increasingly punishing their own respective parties for not being sufficiently devoted to the cause, rendering it increasingly impossible to get elected as anything other than a complete ideologue, resulting in the complete gridlock of the Obama era, where it takes control of the White House, the House of Representatives, and 60% of the Senate to get anything done, and as proven by the fate of Obamacare, even that might not be enough if one house is only barely in control, and without it America lurches to the edge of crisis after crisis before Congress finally agrees to do the bare minimum to keep the country afloat (or in some cases, the President unilaterally sidesteps Congress and issues executive orders to get his way). Our Constitution and the Founding Fathers’ vision suffers as all sides look to exploit every loophole they can to get their way or prevent the other side from getting theirs. The only way for anything to change is if one has the resources to push it through by brute force, meaning monied interests’ control over the system has only deepened, and the Presidency gains more and more power as presidents use executive orders to do what Congress won’t do for them. Whether Donald Trump is the ultimate expression of the Republican base’s desires, or simply the result of people demanding a commanding presence to break through the gridlock, it is the natural evolution of this state of affairs, and it suggests that Trump is not necessarily a unique phenomenon but something that will only get worse if nothing is done to stop it.

In a way, what we’re seeing is the realization of a major flaw inherent in our Constitution, one foreseen by the Founding Fathers and whose escape from being quite so obvious as now is nothing short of miraculous (and partly rooted in some of the darker ghosts of American history). The Founding Fathers did not intend for political parties to form at all. They distrusted political parties and “factionalism” as a destabilizing force and believed people should vote for the person, not the party. As political science was almost nonexistent at the time, though, they had no real grasp of the forces that lead to the creation of parties and ended up forming parties almost literally before the ink was dry on the Constitution, over, somewhat ironically, the adoption of the Constitution itself.

The Founders were also, somewhat surprisingly, distrustful of too much democracy, fearing that it would lead to the outbreak of “mob rule” of the sort the French Revolution would soon seem to provide. At the time, most states restricted the right to vote to white male landowners, and partly out of a desire to keep the states primary to the federal government, the Founders restricted even their participation in the workings of the federal government. Only the House of Representatives was directly elected by the people; for over a century Senators were chosen by state legislatures, who also determined for themselves how members of the Electoral College to select the President would be chosen. Our modern-day commitment to democracy uber alles for as much of the adult population as possible is at odds with the values underlying the Constitution. The system of checks and balances underlying our government doesn’t work as the Founders intended when the President, the House, and the Senate are all chosen by the people.

That shift has direct consequences for our current malaise. Yale political scientist Juan Linz spent much of his career arguing that the great difference between dysfunctional Latin American democracies and relatively stable European ones had nothing to do with any cultural differences between them and everything to do with the form their respective governments took. European nations tend to have parliamentary systems where the prime minister is elected by the Parliament and so must have Parliament’s support; if the prime minister loses that support, the governing coalition either elects a new prime minister, forms a new coalition, or potentially holds a new election. Latin American systems, by contrast, tend to be modeled on the American system of a directly elected President separate from the Congress, meaning when the President and Congress disagree they can both claim to have the backing of the people and there is no obvious principle with which to resolve the dispute that would be terribly convincing. (Not for nothing were the democracies set up following and since World War II, often installed by America itself, usually parliamentary systems.)

The obvious exception to Linz’s analysis was the United States itself, which seemed to be a model of stability with its presidential system, but Linz’s theory was that America’s success could be chalked up to the diffuse, “big-tent” nature of American political parties that could accommodate many different ideologies under the same roof, something that frustrated many political scientists for many years as they looked wistfully at Britain’s ideologically-coherent parties without recognizing what a disaster it would be in America’s system of checks, balances, and separation of powers. In the American context, though, ideologically diffuse parties meant individual congressmen and Senators could vote their conscience and control of any branch of government by either party didn’t actually mean much – parties were themselves coalitions, and each caucus in each house had enough of a diversity of ideologies that coalitions could form that could keep the government more or less stable and moving in a single direction across the legislative and executive branches. This is no longer the case, and the result is providing chilling evidence for Linz’s theories.

That it was the case for so long, preventing the Founders’ fears about the impact of political parties from being realized, can be chalked up to three dark undercurrents of American history: corruption, race, and voter apathy. The party system that emerged after the Founding generation left power, by the time Electoral College members became largely determined by popular vote, was centered more around people’s feelings about Andrew Jackson than any actual issues, and the main issue dominating American politics was the slavery issue and the main fault line was the Mason-Dixon Line, and both parties tried to appeal to voters on both sides of the line. Although the Republican Party was founded around opposition to slavery, by the time Reconstruction was over both parties were increasingly dominated by the spoils system Jackson had started, and American politics was dominated by political machines who turned out the vote for their respective parties, whose ranks were mostly filled by people hoping to gain patronage positions if their side won. In other words, for most of the nineteenth century American politics had little to do with ideology; both sides may have stuck close by their own team, but actual issues were all but irrelevant in the post-Reconstruction era. It also helped that until Woodrow Wilson and World War I came along, the power of the Presidency was rather limited, and Congress was arguably more powerful; as in a parliamentary system, Congress could act on behalf of the people without conflict, especially once the Seventeenth Amendment provided for the direct election of Senators.

After World War II, race again began muddying the boundaries between the parties as the civil rights movement rose to prominence. The one constant of post-Civil War politics was Southern whites’ distrust of the party of Lincoln, but as integrationists became more and more prominent in the Democratic Party, it became increasingly fragmented, to the point that Southerners twice ran rival presidential tickets upon deciding the official Democratic nominee wasn’t sufficiently pro-segregation. Richard Nixon’s Southern strategy in 1968 created the final break between the South and the Democrats, turning the “Solid South” into today’s Republican stronghold. At about the same time, the modern primary system began to take shape, as the people, having already taken control of the Presidency and both houses of Congress, proceeded to wrench control over the selection of nominees for President away from party bosses. Before small cabals in “smoke-filled rooms” decided amongst themselves who the best candidate would be that could strike a balance between serving their interests and getting elected, meaning even after the post-Wilson expansion of presidential power the President still operated at some level of remove from pure popular will. Now the President had to appeal to a subset of the people from the very start – and more, the people were now engaged in every level of the process, becoming the underlying force behind the parties themselves rather than simply taking what the parties gave them, and pressuring parties and politicians to adopt their favored positions. The thorough democratization of American politics was complete, and the parties inevitably became levers for two different factions of the popular will, utterly ideologically opposed to one another, trying to pull the country in opposite directions.

In the popular imagination, our problems have obvious, commonsense solutions that don’t get enacted solely because corrupt politicians don’t enact them. Democrats think they’re in fealty to big business and other rich contributors; Republicans think they’re too addicted to power and big government. It escapes partisans on both sides that one side’s “commonsense solution” is another’s unacceptable giveaway to special interests. Democrats dismiss Republicans’ concerns as the result of being misled by big corporations and blinded by the culture war and a relentless message of patriotism, too stupid to realize that Republican policies are only keeping them down; Republicans dismiss Democrats’ concerns as being misled by the “liberal media” and ivory-tower elites and looking for a handout, too selfish to realize that Democratic policies only hold the country back. Only on Capitol Hill do people from each side of each issue meet and understand where each side is coming from, or even acknowledge that the other side exists. (Theoretically, the same could happen for party bases on the Internet, but it hasn’t happened and human psychology makes it unlikely to happen, and believe me I’ve tried.) Once they come down from the hill and present the result to the partisans back in the cave, they risk being accused of “selling out their principles” and replaced with someone less “corrupt”. It’s a truism that people don’t like Congress but like their own congressperson. What’s not as recognized is that the inverse is true: a congressperson that tries to do what’s necessary to improve the working of Congress as a whole finds their constituents turning against them. People agree that Congress does nothing, but don’t agree on what they should be doing – and prefer doing nothing to doing anything that the other side wants. The hard truth is that getting what you want means throwing some bones to what the other side wants, but people don’t believe there’s anyone legitimate or worth appeasing on the other side at all.

The result is that gridlock is now entrenched in our system. No longer torn between the party on one hand and the base on the other, today they are one and the same. Further fueled by cable news, talk radio, and ideological web sites, and increasingly distant from those on the other side as the parties increasingly reflect racial and urban-vs-rural divides and as congressmen get fewer opportunities to form relationships across the aisle, each side sees their positions as the only acceptable, even the only American positions, and that the other side is corrupt and their followers are deluded. For each side, compromise is unacceptable, and anyone who dares to vote for anything floated by the other side is a traitor – meaning any position that doesn’t conform to the two great forces doesn’t even get any sort of hearing to begin with, because any moderate gets swiftly weeded out, doomed to defeat in the primaries. If either side has any power to stop the other from getting their way, even a mere 40 votes in the Senate, then nothing whatsoever will get done as both sides dig in. The problem is compounded by the loss of the tools once used by party elites to compel votes, the earmarks, patronage, and lack of transparency so dismissed as hallmarks of corruption but which haven’t been replaced by any mechanism to stop small groups of congressmen, or even a single Senator, to grandstand for the sake of impressing their base or furthering their own political advancement. If there were a multitude of parties this might not be so big a problem – any ideology that might have relevant ideas would have a seat at the table, and without two parties on exact opposite ends of one another it would be easier to find common ground – but our system effectively precludes that, for reasons obvious to anyone who followed the 2000 election. So our democracy lurches ever forward to the brink, and if nothing is done to correct its course the result will either be the election of a Trump-esque strongman, one who will set out to push whatever their side wants no matter who gets trampled underfoot in the process, or all-out civil war, if not both – and either would likely be the death of the Republic.

All this would play out exactly as the Founders feared – the rise of factions resulting in the dissolution of the Republic – and we would do well to recall their wisdom. We no longer believe there is such a thing as “too much” democracy and have come to accept the advent of parties as inevitable, things our Constitution is not designed for. If we are to keep our democracy from plunging into the abyss, we must remember their wisdom while reflecting today’s values.

I urge my fellow Americans concerned about the direction of the country to call for a constitutional convention to update the structure of our government to reclaim the Founders’ wisdom while reflecting our values – crafting a government designed from the start under the assumption that the people will determine as many of its members as possible and recognizing the inevitability of parties, encouraging compromise between factions while strengthening the system of checks and balances for today’s society – or short of that, to form a movement to demand reforms to our democracy within the Constitution to better encourage compromise and finding the best ideas to move the country forward.

I don’t know what shape such a revitalized government would take, and I’m not confident that anyone selected to attend the convention would have anywhere near as much wisdom as the Founders, especially considering the concerning likelihood that anyone with such wisdom would be cast aside in favor of groups with axes to grind hoping to engrave their favored positions in the Constitution, but the necessity to at least confront the problem is undeniable, and I hope that by stating the issue in this way I can invite concerned Americans on both sides of the aisle, all of which consider themselves concerned about America’s well-being, to confront the issue and work together to start working towards a solution. Over the next few days and weeks I will present some specific ideas about flaws in the system and ways to resolve them – even without a convention, though some modification to the Constitution may still be warranted in order for those changes to be as effective as one would hope.

In 1787 the Founders saw an America in crisis – disrespected by the great world powers, unable to raise money to pay its debts, unable to do anything to ease squabbling between the states – and realized that large-scale reform would be needed for the republic to survive, for the Revolution to prove to be more than a Pyrrhic victory. We now find ourselves facing a crisis that may be every bit as big a threat to the survival of the Republic as what the Founders faced, and however we choose to solve it, we need people from left, right, center, and elsewhere to rise to the occasion and find solutions to the great challenge of our time, no matter what that might entail.

Ensuring a #CommActUpdate for the Twenty-First Century

The Republican-controlled House Energy and Commerce Committee has been collecting input for a comprehensive update of the Communications Act for over a year now, with an eye towards a “technology-neutral” law that avoids placing different technologies in different regulatory “silos” and instead treats equivalent technologies equivalently. Towards that end, it has been issuing a series of white papers on issues surrounding the effort, and the most recent one concerns an issue that, perhaps even more than net neutrality, illustrates how much this effort is desperately needed: the video marketplace.

I sent in my thoughts on the state of the video marketplace and on the more general question of what I would like to see in a technology-neutral Communications Act, which you can see here. You may also want to read the comments I sent to the FCC on its ownership review and on a la carte television, assuming the FCC site is up.

Will Three Million Comments in Favor of Net Neutrality Sway the FCC – and Should They?

Over the past few months, the FCC has seen a level of public participation unprecedented in the agency’s history. Largely spurred on by John Oliver (not to give short shrift to numerous consumer groups mobilizing the masses), over three million comments were filed in the FCC’s net neutrality proceeding, many by people who couldn’t name more than one or two commissioners and who only knew the name of chairman Tom Wheeler because Oliver told them. The overwhelming majority of those three million comments begged the FCC to preserve net neutrality and an open Internet and not to adopt “paid prioritization” rules that would undermine the concept of net neutrality, with the only comments in favor of paid prioritization being cable companies and people paid off by cable companies.

With so many people weighing in on the issue, surely the FCC will bow to the will of the people and pass real net neutrality, right? According to Seeta Peña Gangadharan writing in Slate, and drawing on his experiences with the 2002 and 2006 ownership reviews when the FCC ignored the input of hundreds of thousands of comments from ordinary Americans, the answer is a resounding no. Depending on how cynical you are, that may not be surprising; what may surprise you is what Gangadharan says are the reasons why, something that he says “points to a much larger tension between federal agencies and the public—and one that we must address if we want our agencies to help restore trust in government and strengthen their civic purpose.”

According to the FCC commissioners and staffers Gangadharan spoke to, the public has a misconception that the comment process is like a vote, when it’s actually “more like a court proceeding” where “systematic, reliable evidence, not emotional expressions” win the day. They considered the many comments filed in the ownership proceeding by people who probably never filed comments to the FCC any other time as “emotional and superficial content”, “prone to error” and “lack[ing] truthfulness”. As one staffer put it, not “usually very deep or analytical or, you know, substantiated by evidence, documentary or otherwise. They’re usually expressions of opinion.” Another went so far as to say some of the comments they received were downright “hilarious” because “you know you’re reading something, and you know it’s not true. And you’re guessing, you know, the person is hallucinating.” As a result, many comments don’t even make it very far in the commission’s bureaucracy, because in the eyes of staffers, “they [don’t] need to”. As Gangadharan puts it, to sway the commission you need to “become a lawyer, economist, or researcher and meet the commission’s expectations for what reasoned input really means.”

If the majority of comments from ordinary citizens to the FCC fail to “meet the commission’s expectations for what reasoned input really means”, perhaps that’s because they aren’t “reasoned input” by anyone’s expectations, and if they consider those comments “emotional and superficial content”, perhaps that’s because they are. By and large, when “ordinary citizens” file comments to the FCC they not only tend not to be all that well-argued, resorting to “emotional and superficial” appeals, they often are riddled with spelling, grammar, capitalization, and punctuation errors. The Sunlight Foundation characterized “at least” 60% of the 800,000 net neutrality comments the FCC had received at that time as “form letters written by organized campaigns”, in other words, letters written by people who were able to cogently and coherently articulate their position but which got repeated over and over by numerous people. The fact that a bunch of people were able to submit the same comment over and over and each get counted suggests the commissioners and staffers are not far off in thinking most people, even those that should know better, see the comment process as a “vote”; if the comment process is supposed to be a battle of rational arguments, those numerous repeated comments shouldn’t even count towards the total, but should simply be listed as signatures on a single petition. Otherwise, it’s what people who disagree with their position can dismiss as astroturfing. What does that leave? Here’s a not-quite-random assortment of some of the comments from the remaining 40% – some of which may out to be form letters! – that were posted to the FCC’s site right before the Internet Slowdown protests resulted in a surge of form letters, all of them reprinted in their entirety:

Please do not change the current laws regarding net neutrality. Even under the current laws, ISPs in America are oligopolies in the best cases and monopolies in many rural and suburban areas, and abolishing net neutrality would give them an even stronger stranglehold on the market. The Internet in its current form is a precious resource and should not be sold out for the sake of the bottom line of a hand-full of companies who just so happen to be some of the richest lobbyists in Washington. At the very least, please honestly consider the repercussions of abolishing net neutrality before acting to protect the interests of Big Cable.Daniel McArtor

Net neutrality is the First Amendment of the Internet, the principle that Internet service providers (ISPs) treat all data equally. As an Internet user, net neutrality is vitally important to me. The FCC should use its Title II authority to protect

I believe in the free accessibility of the internet for all people. The internet is a right that should not be filtered or throttled by corporations or governments. Please defend the free internet by maintaining net neutrality.Stephen Winter

Based on my knowledge internet was invented by research organizations and then given to public to bring the whole world closer. Verizon or comcast do not have any right over it just because they own the hardware which facilitates the internet. These companies precisely understand the importance of the internet, how everyone is dependent on it, and it is just a scam to make more money on one of the basic commodities in this country. I oppose the plea by comcast and verzion primarily for the following reason: It is not wrong for these companies to provide faster service to companies who would want to pay more, but my concern is how it will affect other companies/people who cannot afford the speed. I work with entrepreneurs who work on internet start ups, who hardly have any money or they are usually on a strict budget, but our projects sometimes compete with bigger companies. My biggest concern is as it is start ups face uneven field to start off. Now, on top of that if internet provider companies start providing faster service for the rich companies then the field gets even more uneven making it harder for small companies, startups, small businesses to compete with their rich counterparts. Last but not the least, I have a comment on Comcast. Comcast which is the largest internet provider.Gansh Soms

Stop the corporate greed, you stupid twats.  The public actually cares about this issue.  Baaaaaaaaaa.Common Sense

The FCC should amend its rules to ensure continued net neutrality.  The pending proposal does not do that.  Instead, it allows an already heavily concentrated industry to gain even greater control over public access to information by selling rights to a “fast lane.”  It also puts businesses, particularly new entrants in the market and those with less capital, at a clear competitive disadvantage.  This will harm the economy in the long term.  The proposed rule is poor public policy and should be rejected, and replaced by a rule that treats these corporate behemoths like the common carriers they are, as a practical matter.  Thank you for considering my comments.Darrell Murray

When people speak of the greatest inventions of mankind we speak of things like soap (combating bacteria and disease), steel (providing strength to structures our mind can conceive of), and the printing press (allowing the common man the chance to learn to read). Prior to the printing press and the Gutenberg Bible, literacy was solely for the church and the very few. The internet, in its current iteration is available for all and  the greatest tool to spread information. Please do not move forward with the Net Neutrality act. There is NOTHING to be gained by the people who use the internet if this is to go forward. Thank you, Charles Schoenherr

KEEP NET NEUTRALITY! KEEP NET NEUTRALITY! KEEP NET NEUTRALITY! I don’t want the cable companies bending me over my work table and @*!X#$ me up my nether regions. The internet doesn’t need a no move lane and laser speed limousine lane. Fire Wheeler. Putting him in charge of the FCC is like hiring a convicted child molester to baby sit your kids!Edward Mosle

Please protect net neutrality. The Internet and its use by regular consumers has advanced far enough that internet/broadband service providers should be treated as any other telecommunications service provider and regulated as such. Competition is good, and consumers should have multiple choices, but for a provider to interfere with the speed of data reaching the consumer or charging unfair prices by creating “fast lanes” is not fair to the consumers.Anahit

I favor HS Internet but I favor more competition among vendors for the consumer & retain the Tier pay plans for users alone & to regulate ISPs as Utility IE Information Utility alone can do much to expand Internet. Pricing should be competitive for consumers esp small business & home users. CUT regulations that deter this from marketplace. CUT any FCC bureaucracy that can impact Net neutrality alone BUT expand FCC enforcement div alone. & one should be able to change users for HS Internet like one can with mobile phones. Hate the mobile phone contracts anyway, consider wireless phone carriers as a Utility like Pacific Bell was years ago.Stephen Russell

Former Democratic Commissioners Michael Copps and Jonathan Adelstein, who were on the commission for the 2002 and 2006 proceedings, have “argued that labeling the input of all ordinary citizens as worthless and emotional is misguided”, that the stories they tell “spoke to the failings of a consolidated media marketplace.” Going off their comments, Gangadharan calls on the FCC to “concede that personal experience can be substantive, too”, just as agencies do with consumer complaints, and set a precedent for all agencies to “treat[] rulemaking as a genuine democratic process, that value[s] peoples’ voice, history, and context”. But court proceedings, and other big decision-making processes, are not supposed to make decisions based on anecdotal evidence, but on actual data – especially since most ordinary people don’t have any concrete anecdotes that would argue against net neutrality. If there is a “much larger tension between federal agencies and the public”, it’s even deeper than Gangadharan indicates, because if people are simply sending in their personal anecdotes it’s because that’s what sways ordinary people like themselves, so if there is anything wrong with government agencies it’s in expecting human nature to be anything different from what it actually is. In any case, most of the above comments aren’t even anecdotes; at best they’re just parroting the talking points from the numerous places covering the issue. The commission shouldn’t make their decision based simply on how many comments come in on one side of the issue if the vast majority of them are irrelevant crap that add nothing to the debate (especially those coming from the Internet trolls Oliver specifically called on to comment), and if they do, it will be more out of consideration of the PR consequences, a recognition of the sheer number of people aware of the issue and their reaction to the FCC’s proposals, than anything else.

I filed my own comments to the FCC earlier this month on the current ownership review, which does not seem to have attracted the same intense interest as the ones Gangadharan references (perhaps because the commission is proposing more tightening of regulations than loosening this time around), and read through the rounds of comments that had already been submitted as part of my research for it, and as such I feel I have a good sense of the sorts of comments the commission is actually looking for. Assuming even those comments that do “meet the commission’s expectations for reasoned input” make any impact on the commissioners, as opposed to their minds already being made up for whatever reason on most issues (many of the comments on Gangadharan’s piece point to money being more of a motivating factor than quality of comments in the Commission’s decisions – see Wheeler’s cable-industry-lobbyist background), I think ordinary Americans can get their comments noticed by the FCC if they have a solid understanding of the issue and the arguments being thrown around about them, and at least a basic college-level understanding of rhetoric and argument. I invite you to look at my comments on the ownership review; they’re not perfect (I cite Wikipedia multiple times, including at least one thing that may be just plain wrong, and may be wrong about other things), but at 20 pages and with copious citations, as well as actually confronting the stakeholders’ arguments on the issues I address, I’d like to think it at least provides a framework for ordinary citizens to at least try to compete on a level playing field with the big corporations.

Ultimately, I think the real problem is that the things the FCC does just don’t get much attention from the media, except when it comes to super-obvious things like net neutrality, even though the things the FCC does affect every American. Of course, the big media companies probably don’t want anti-consolidation citizens weighing in on proposals that affect them, but even blogs don’t cover the FCC on a regular basis, focusing on a few big issues like net neutrality or the big cable company mergers with obvious impact on the consumer, without any appreciation of the larger context surrounding the debate on those issues (or even a nuanced discussion beyond the talking points), and mostly when the FCC’s proposals are things they hate (the sports blackout rule notwithstanding). There’s been little coverage of the incentive auction or the general issue of spectrum management (and those that are aware of it tend to support giving more spectrum to wireless companies, unless they’re specifically interested in the state of broadcasting, even though preserving and supporting broadcast TV is vital to preserving net neutrality in the long term), or of the ownership review, or of issues surrounding retransmission consent and a la carte, or of the House Communications and Technology Subcommittee’s Republican leadership soliciting input on a proposed update of communications legislation. These are things that could have as much or more impact on the lives of Americans as the issues that get all the attention, but they tend to go under the radar. Having an FCC that works for the people may be more important than with any other agency, because preserving net neutrality and a diversity of voices in general has the overall effect of strengthening our democracy and ensuring the rest of the government works for the people as well, and thus keeping an eye on the FCC is more important than with any other agency as well.

What is the Sports Blackout Rule the FCC Just Repealed?

On Tuesday the FCC voted unanimously to repeal its 40-year-old sports blackout rule, a move that means a lot less than its coverage in the media has made it look like. This is not, in itself, the rule that prohibits the broadcasting of NFL games that don’t sell out or the rule that frustrates MLB Extra Innings subscribers so much, but it is related to the former. As this Awful Announcing piece explains, the blackout rule essentially provides a backstop for the NFL’s blackout rule by prohibiting cable providers from airing games blacked out on local broadcast stations. (It technically applies to all leagues, but the NFL is both the only league with a blackout policy this would apply to and the only league that hasn’t seen virtually all its games migrate to cable anyway in recent decades.) It was never particularly a matter of good policy, with the FCC putting a foot on the scales of private enterprise, but its weird specificity (which betrays its vintage from an almost unthinkably different time not only in the NFL, but in the cable business and the television business more generally) dulls its effect enough that it’s hard to see its repeal changing anything, at least in the near term, given the NFL’s existing contracts.

Despite this, AA itself has inflated the rule’s importance in subsequent reporting on the debates on the issue, and the NFL warned that repealing the rule could force the league to abandon broadcast television and move to cable. It’s hard to see how a rule that keeps games from airing on broadcast, one the NFL could easily repeal its end of tomorrow and obviate the effect of the repeal of the FCC rule, is protecting the presence of games on broadcast, but the FCC’s response, noting the league’s current contracts run through 2022, is worrisome to me, because it doesn’t cover what happens after that, given cable’s unfair advantages, or the fact that the Big Four networks have made clear they would abandon over-the-air television themselves if they could.

Could cable providers air games the NFL has blacked out on local stations? Maybe, but if such isn’t covered by the NFL’s exclusive deal with DirecTV for Sunday Ticket the NFL could still police it, with a potential last resort of holding NFL Network and NFL RedZone over their heads. It may or may not affect DirecTV’s own ability to show blacked-out games, assuming DirecTV blacks out games on Sunday Ticket that are blacked out on the local station, but if so it’s likely that’s guaranteed in their contract as well and the league could continue to police it. The repeal of the FCC’s rule might change the economic incentives for the league going forward, but again the prospect of blacked-out games airing on cable undermining their presence on broadcast is a problem of the league’s own making through their imposition of the blackout rule in the first place. If the NFL declares in their next TV contract – and I’m assuming the impossible, that by the end of this decade the content landscape is exactly as it is today – that the repeal of the FCC rule is forcing them to abandon their commitment to broadcast TV and move their games to cable, it would call into question their motivations for making that commitment to begin with. Protecting gate attendance, no matter what way you slice it, seems to have little to do with protecting the league’s presence on broadcast television, and anyone who thinks there’s a serious prospect of the league eventually abandoning broadcast should be paying more attention to the broken economics of the television industry and the prospect of broadcast being permanently if not terminally crippled by the upcoming incentive auctions. All told, the repeal of the FCC’s blackout rule is a purely symbolic gesture not worth the ink spilled on it, but it does give some indication that the FCC is willing to stand on the side of the consumer and good policy – at least, if they can also stand on the side of the cable companies and against broadcasting at the same time.

Is There a Place for Common Sense in Supreme Court Decisions?

The Supreme Court Wednesday ruled 6-3 against Aereo, declaring the start-up’s array of miniature antennas available for rent to consumers in violation of copyright law. Astoundingly, the three dissenters were Justices Scalia, Thomas, and Alito, three of the court’s more conservative members. If you had to pick one person to symbolize the modern Supreme Court’s tendency to favor moneyed interests over ordinary Americans, the law, intent of the Constitution, and precedent be damned, it would probably be Scalia, followed by Thomas, then Alito and Chief Justice Roberts neck-in-neck. I would never have expected the conservatives to actually believe what they say they do enough to stand with the consumer and the scrappy, innovative start-up at the expense of the big, multi-national conglomerates, and as much as Democratic politicians may be in bed with Hollywood, I never would have expected every last one of the liberal justices to stand with the big corporations against the ordinary American. I know President Obama’s Justice Department filed a brief supporting broadcasters, but that was widely seen as disappointing, not sadly expected; I suspect this is an issue on which the Democratic decision-makers are well out of step with their rank and file. Maybe I’m just naïve (support in Congress and opposition among the public to SOPA was, after all, largely bipartisan), but it would be hard for me to deal with it if this turned out to be an issue on which I stand with conservatives and against Democrats.

But that’s not what I want to talk about. Rather, I want to talk about the tendency for pro-Aereo corners of the blogosphere (as well as Aereo itself) to decry the decision as being obviously wrong, to gloss over the sketchier elements of what Aereo was trying to do, take its own description of it at face value, and dismiss the majority’s reasoning as the “looks-like-a-duck test“, to speak of Aereo’s setup being designed to follow the law as opposed to “going around” it as though that were more than a semantic distinction. One of the things Americans don’t like about the legal system is the tendency to create overly complicated documents written in horrendously obtuse language with no resemblance to anything ordinary Americans could recognize so that people can get off on obscure technicalities. But when the Supreme Court finally looks past the technicalities and boils things down to what they actually are, but we happen to be on the side that wanted to take advantage of those technicalities, suddenly we want the court to follow the obtuse legal language, ignore what we’re actually trying to do, and let us skirt through the loophole?

I personally felt that, while Aereo was clearly trying to take advantage of a loophole in the law, it was the place of Congress, not the Supreme Court, to close it, and it sounds like the commenters on (the very liberal) Daily Kos agree with me. But I don’t think we’re giving the position the majority accepted enough credit. Leaving aside the technicalities of how it all works, what Aereo was selling was the ability to watch broadcast television stations, regardless of whether you had the ability to view them at your current location if you had an antenna, indeed without you needing to worry about having an antenna or where it was located. You, the viewer, don’t see where Aereo’s antenna is and don’t even necessarily know anything about where Aereo is getting the signals from. All you know is that you are giving Aereo money and they are supplying you with a bunch of television channels you may or may not be able to receive otherwise. Boiled down to those facts, there really is very little difference between Aereo and basic cable service (and some of the things Aereo had said about potentially carrying cable channels didn’t really help their case).

What this shows is that our communications and copyright laws are woefully outdated and rooted in assumptions that don’t hold water, that failed to anticipate technological developments that rendered the technological distinctions encoded in the law obsolete. The entire Aereo affair had a company resorting to technological contortions to provide a fairly basic service there was a clear demand for and broadcasters being undermined by the very nature of, and wanting to be rid of, their own nominal method of delivery, their own neglect of which helped create the demand for Aereo in the first place (and while they’ve won this battle, they may ultimately lose the war). The court said that if Aereo wanted relief they should go to Congress when they should have said that to the broadcasters, not only because that would have been the right approach but because the broadcasters would likely have been more able to get that relief. But putting the onus on Aereo does give Congress incentive to clear up a regulatory framework that assumes the primacy of the obsolete technology of cable television and undermines the potential of broadcasting, while creating perverse and unintentional disincentives for maximizing the distribution of content.