supreme-court

Effective Democracy

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Let’s start with facts:  we live in a failed democracy that has transitioned to incompetent dictatorship. Given that kind of mess, it is worth going back to first principles to think about effective government.

First of all it should be noted that there is an intrinsic conflict of interests in any national government.  This isn’t complicated; it is basically parallel to what goes on in any corporation between the interests of labor and interests of management.  Near term they are dividing up profits, but longer term both have a common interest in the success of the company.   Successful companies are able to manage the conflict.

In government you have the economic powers-that-be versus the population as a whole.  Both have to benefit for success, but immediate interests are opposed in much the same way.  It should be emphasized that here too exclusive power to one or the other is disastrous. We’re accustomed to hearing one side of that story—uncontrolled spending on government benefits for the population will bankrupt the economic engines of the country. But an exclusive focus on the business side is equally bad and it’s not just a matter of living standards:  business interests are myopic both in terms of time scales and in terms of the environment needed for success.  You won’t have the technologies, or the people, or the physical environment necessary for the economy (and as we’ve seen recently, business people can risk bankrupting the country too!). Government has to speak for the whole picture.  Even the patron saint of free enterprise—Adam Smith—was well aware of this issue.  “The government of an exclusive company of merchants is, perhaps, the worst of all governments for any country whatever.” There is nothing sacred or proven about claims that government should never interfere with the marvelous natural workings of the marketplace—that’s just self-serving propaganda for the “haves” side.

This intrinsic dichotomy is very important for effective government.  Both sides must be present but neither side can win.  That’s one of the reasons we’re in such bad shape right now.  What we have today is business capture of government—exactly what Adam Smith worried about.  To be effective government needs to provide means for functional negotiation and cooperation between both sides.  Those sides don’t map exactly to the Republicans and Democrats, but that’s pretty much what it comes down to.  Bipartisanship is not about being nice; it’s working out fundamental tradeoffs between the two sides.

That is precisely what we have lost–structurally.  There are three immediately obvious issues.  The first is the primary system.  Since primaries are partisan, candidates are chosen exclusively based on appeal to one side or the other.  That guarantees extreme positions and more importantly disenfranchises the center of the voting population.  A second example is the way partisan power is used to control legislation offered in Congress.  In the House the so-called Hastert rule only allows on the floor measures that are supported by a majority of Republicans.  In the Senate the majority leader Mitch McConnell routinely blocked anything he disagreed with—regardless of overall support.  Both rules disenfranchise the center and make the country effectively ungovernable except in extremes—so whiplashing policies are a matter of course.  Finally there is the Supreme Court: lifetime appointments plus limitless power give a huge incentive for partisan appointees.

All of this is bad news and good.  The bad news is that it isn’t clear when we’ll be in a position to fix any of it. The good news is that there are significant items that really aren’t so hard to fix.  For primaries, there are a number of possible variants, including non-partisan primaries with rank choice voting.  For the Congress, you don’t need to change the constitution to change the rules.  And there are many proposals to fix the terrible mistake that is the Supreme Court—an undemocratically-chosen body with lifetime appointments and no constraints on its power.   With a decent Supreme Court we should be able to fix gerrymandering, for example.  That is a math problem we chose to turn into a political mess.

Bipartisan cooperation is fundamental, and we can stop going out of our way to make it hard.  That way we can make the tradeoffs for the country to be governable.  Then we can move on to two other necessary and straightforward matters:  direct election of the President (the current system is grossly inequitable and invites fraud) and adding the few extra Senate seats needed to compensate the ill-represented largest states. Such measures won’t solve everything (not control of media for example), but we can make things quite a lot better.  We can make our democracy work.

It’s not so complicated–if we ever get a chance to do it.

Problems with the Constitution

/ ontheoutside / 1 Comment

There has always been plenty of talk about what is right and wrong with the Constitution of the United States. However much of that was on the back burner until recently. Now it is different. First we saw government collapsed into non-functional partisan chaos, and then Trump demonstrated that what we thought was a government of laws was actually a government of unenforceable traditions.

So what follows is a list of issues. I won’t say it is complete or well-organized, but the problems are all serious.

  • Open to dictatorial takeover

The Supreme Court was a terrible mistake.  There are no limits to its power, and it doesn’t even have to justify its decisions.  The Justices are chosen undemocratically and serve for life.  We’ve now seen they can even declare a President above the law, so that the entire Constitution is out the window.  It is a dictatorship waiting to happen.

  • Open to corruption (only works because of tradition, not law)

The entire electoral apparatus belongs to the states, where it is operated by partisan officials.  It is common practice to make voting difficult in opposition districts, but that is just the beginning. The whole voting apparatus is controlled by people who gain from controlling results.  It works if people are committed to democracy, but not otherwise.  Other democratic countries have established separate, nominally non-partisan organizations to administer voting.

  • Unrepresentative

The Senate is phenomenally unrepresentative.  Two senators per state means residents of small states have astonishingly outsize power.  At the very least, very large states such as California need additional Senators.  The problems of the Senate also affect the Electoral College, so that not only legislation but also Presidential elections are affected.

Then there is the whole question of gerrymandering. Computers have made this both easy and effective. The US Congress is currently so gerrymandered that very few districts have real elections. That severely limits democracy.

  • Doesn’t work for states

These is an urgent need for clarify the division of responsibility between the states and the federal government.  As an example, the federal government has traditionally backed up the states for emergencies of all kinds.  That is necessary because it has greater resources as well as the ability to run deficits if necessary (which many states can’t).  With both Covid and the operation of FEMA Trump decided he was either opposed or lukewarm about it, and that was that.  The Constitution has to be explicit about responsibilities.

  • Doesn’t work for the federal government

The federal government simply doesn’t work as intended.  We’ve reached an era of non-cooperation between parties, so government only works when a single party controls everything.  Between the “Hastert rule” in the House and the filibuster in the Senate, it’s easy to block everything otherwise.  That means the so-called separation of powers in government is largely non-functional  Furthermore the primary system for the nomination of candidates basically disenfranchises the political center, so that parties are by definition extreme.  That means government is either functionally blocked or unrepresentatively extreme.

  • There is no protection for governmental expertise

A functioning national government needs expertise upon which to base its conclusions.  For that reason Congress created a number of bodies intentionally buffered from Presidential politics.  More recently the Supreme Court has decided that any body working in the executive acts at the discretion of the President.  It is now impossible for anyone with necessary expertise to make a career in the federal government.

  • Unclear dividing lines between branches of government

The Trump administration is legislating by executive order, and the Supreme Court has decided that is okay.

  • The unspecified role of parties can undercut everything else

Everything about our two-party system is outside the Constitution.  So that, as mentioned earlier, we have a primary system that disenfranchises the political center, and there is nothing in the Constitution that has any bearing on it.  The Constitution needs at the least to say how elections work.  Anything not specified is vulnerable to corruption and takeover. Non-partisan primaries with rank choice voting is a possible step in that direction.