New Democracy

Getting rid of winner-takes-all in the electoral college could backfire badly

A new organization named Equal Votes is pushing to make a supreme court case to undo the electoral college. They hope to use a precedent set in the famous “Bush v. Gore” 2000 election case, which strengthened the application of the equal protection clause to election law. They want to show that the “Winner takes all” approach that 48 states use to hand out electoral college votes is a violation of the idea of one person one vote. States would then not be able to use it.

It’s an interesting idea, but I have grave concerns that it might backfire, and badly. Worst case, it could guarantee a Republican President into the indefinite future. Hopefully not, but that’s a bad result, even if you’re Republican leaning.

My friend Larry Lessig is supporting this, and I don’t doubt the theory that it might win. The idea is that since a state could assign its electors in proportion to how its citizens voted, it is depriving them of their rights by not doing so. If you are in a safe state and not in the dominant party, your vote is useless and effectively counts for nothing.

It is far from certain that this logic can win. Winner takes all is of course the norm in democracies. The country only gets one President even though almost half the country didn’t want him. States only get one governor. In California, where state legislators are elected by districts and some Republicans get seats, the reality is that the Democrats get complete power, not partial power. And in the current congress, it takes defections or filibusters to stop complete rule by the Republicans (even though, due to gerrymandering, they got fewer votes than the Democrats in the house.)

Voting by gerrymandered district

And this is where we get the first big risk. Two states, Maine and Nebraska, don’t do winner takes all. They follow what seems a very sensible plan at first. A state’s electoral college delegation is equal to the number of congressional representatives they have: House members plus two. These states select two electors based on statewide vote, and then select the other electors based on the vote in each district. Just like members of congress, the electors represent their “districts.”

There is a risk that if the court held that winner-takes-all is invalid, they might not rule that the established district based system is invalid. Equal Votes will ask for that, but they might not get it. If they don’t get it, then some states, in particular the gerrymandered states, may decide to follow the Maine system. And being gerrymandered like this, they are likely to return a slate of electors that is not too different from their congressional delegation — a heavily skewed delegation. Even if many other states use a different system (like the proportional allocation Equal Votes wants) the result would be a college very much like congress. And that’s a GOP college.

Why? Because of operation Redmap. This insidious, I would say evil, cheat on the electoral rules was done by Karl Rove and the RNC in 2010. They poured millions into a carefully selected number of unsafe Democrat statehouse seats around the country, enough to swing those statehouses to the GOP. Then they used that power to redraw the districts in those states in a gerrymandered way to favour the GOP. Not just in the congressional elections, but in future statehouse elections, cementing the power indefinitely. It will need a major anti-GOP swing, or supreme court ruling, to fix it.  read more »

The Electoral College: Good, bad or Trump trumper, and how to abolish it if you want

Many are writing about the Electoral college. Can it still prevent Trump’s election, and should it be abolished?

Like almost everybody, I have much to say about the US election results. The core will come later — including an article I was preparing long before the election but whose conclusions don’t change much because of the result, since Trump getting 46.4% is not (outside of the result) any more surprising than Trump getting 44% like we expected. But for now, since I have written about the college before, let me consider the debate around it.

By now, most people are aware that the President is not elected Nov 8th, but rather by the electors around Dec 19. The electors are chosen by their states, based on popular vote. In almost all states all electors are from the party that won the popular vote in a “winner takes all,” but in a couple small ones they are distributed. In about half the states, the electors are bound by law to vote for the candidate who won the popular vote in that state. In other states they are party loyalists but technically free. Some “faithless” electors have voted differently, but it’s very rare.

I’m rather saddened by the call by many Democrats to push for electors to be faithless, as well as calls at this exact time to abolish the college. There are arguments to abolish the college, but the calls today are ridiculously partisan, and thus foolish. I suspect that very few of those shouting to abolish the college would be shouting that if Trump had won the popular vote and lost the college (which was less likely but still possible.) In one of Trump’s clever moves, he declared that he would not trust the final results (if he lost) and this tricked his opponents into getting very critical of the audacity of saying such a thing. This makes it much harder for Democrats to now declare the results are wrong and should be reversed.

The college approach — where the people don’t directly choose their leader — is not that uncommon in the world. In my country, and in most of the British parliamentary democracies, we are quite used to it. In fact, the Prime Minister’s name doesn’t even appear on our ballots as a fiction the way it does in the USA. We elect MPs, voting for them mostly (but not entirely) on party lines, and the parties have told us in advance who they will name as PM. (They can replace their leader after if they want, but by convention, not rule, another election happens not long after.)

In these systems it’s quite likely that a party will win a majority of seats without winning the popular vote. In fact, it happens a lot of the time. That’s because in the rest of the world there are more than 2 parties, and no party wins the popular vote. But it’s also possible for the party that came 2nd in the popular vote to form the government, sometimes with a majority, and sometimes in an alliance.

Origins of the college

When the college was created, the framers were not expecting popular votes at all. They didn’t think that the common people (by which they meant wealthy white males) would be that good at selecting the President. In the days before mass media allowed every voter to actually see the candidates, one can understand this. The system technically just lets each state pick its electors, and they thought the governor or state house would do it.

Later, states started having popular votes (again only of land owning white males) to pick the electors. They did revise the rules of the college (12th amendment) but they kept it because they were federalists, strong advocates of states’ rights. They really didn’t imagine the public picking the President directly.  read more »

Actual success in laws to reduce corruption and money in politics

At this week’s Singularity U Global Summit, I got a chance to meet with Josh Silver and learn about his organization, I have written often in My New Democracy Category on ways to attack the corruption and money in politics. is making a push for the use of laws to fix some of these issues, through ballot propositions. In the past, I have felt this approach to be very difficult, because for every step that could improve democracy, one of the major parties is benefiting from the flaw, and will fight any effort to fix it. Fixes in congress or the statehouses are difficult, and many of the fixes people like (like campaigning restrictions) violate the 1st amendment.

This organization is trying for a few specific measures in a bipartisan effort to pass ballot resolutions. To make it bipartisan, they are doing it in pairs of “red” and “blue” states. The core changes they are looking for are:

  • Public campaign finance through vouchers. Every voter gets “vouchers” they can hand to the candidates they wish
  • Rules to fix the nightmare of gerrymandering, primarily by having non-partisan committees draw the district boundaries, as has already happened in some states
  • Preferential ballot systems to allow minor parties to participate in elections without risk of “spoiling” the battle between the 2 main parties, as Nader did in Florida 2000 and Perot did in 1992.
  • Improved voter participation though improved registration (another common approach in place in some districts.)
  • Limitations on revolving door lobbying and favours for donors.

RU’s plan is a surprising one — that all 4 of these together might have a better chance of passing than the individual components do. Polls show that voters often have strong support for this full package, even if they don’t like one of the items. So they have this on the ballot in South Dakota and Washington, though the ballot language in Washington is not superb. They are looking for money and support in their campaigns, and I have offered to be on their advisory board. They have already passed versions of their anti-corruption bills in several cities.

Their strategy might work on me (if I were a voter.) I have my own preferred versions of these approaches, but I would rather see this package pass than fight for the perfect version of either one. Nonetheless a few things I would tweak:

Gerrymandering is one of the great cheats of political systems, and it got a lot worse in 2010 through a deliberate effort of the Republican party to massively overspend national money on key statehouse races, allowing it to control those statehouses and redraw the lines to both assure continued control of the statehouses and a control of the House of Representatives in spite of getting a serious minority of the popular vote. Non-partisan redistricting committees are a start, but we need more, and parties that have gained control this way will be unlikely to give it up. I have advocated a rule of convexity to prevent even partisan groups from gerrymandering. But the only hope I have hear is finding a constitutional principle — such as the basic right of franchise — that can get this stopped.

Preferential ballots are good, but sadly the “instant runoff” (also known as Hare, Single Transferable Vote and Australian ballot) is actually the worst of the systems. The problem is not just the chaotic conditions in that simulation article, but that it is one of the harder systems to explain to the voters. If the voters are not immediately clear on how their system works, it causes lack of confidence and probably less voting.

From a purist standpoint, my favourite is Condorcet. It gives good results and can be explained reasonably easily.

Rank your choices in order. To decide the winner, all candidates are compared against all other candidates as though they were in a 2-way race, deciding if more people liked A over B or B over A. The winner is the candidate who beats all the others in these 2-way comparisons. In the very rare case where this doesn’t happen, a tiebreaker is done among the candidates with a claim for the top.

On the other hand, the Appoval system is even simpler. Its instructions can be understood quickly by all:

Check the box next to all candidates which you support as suitable for the role. You can check any number from one or all but one. The candidate with the most votes wins.

Approval throws away the fact that you like one candidate more than another, but in reality it seems to work just as well as the systems that don’t do that, and it’s much simpler to understand. The real flaw is that with Approval, if you have candidates who are close in support, you can get a little “strategy” where voters might not vote for their 2nd choice candidate (even though they like them) out of fear of hurting their first choice. You can’t hurt your first choice in Condorcet and instant-runoff, which is a plus, but in reality, this sort of situation doesn’t occur in the USA, where there are 2 strong major parties and much weaker minor parties. (Ie. in 2000, every Nader supporter who also liked Gore, and many Gore supporters who liked Nader would have voted for both, even though it was sure Gore would handily defeat Nader.)

Improved participation — diminishing the value of GOTV is also a good plan, though we need much more here. Even with high registration, voter turnout remains low in the USA, which means that elections are actually won and lost mostly on GOTV.

If you support these plans, then give some money to Represent.US and vote for their measures if you live in Washington or South Dakota.

An instant online debate for everybody ("Youtube" debate)

In continuation of my series on fixing politics I would like to address the issue of debates. Not just presidential debates, but all levels.

The big debates are a strange animal. You need to get the candidates to agree to come, and so a big negotiation takes place which inherently waters down the debate. Only the big 2 candidates appear in Presidential debates, usually, and they put in rules that stop the candidates form actually actively debating one another. Most debates outside the big ones get little attention, and they are a lot of work.

I propose the creation, on an online video site — Youtube is an obvious choice but it need not be there — of a suite of tools to allow the creation of a special online video debate. Anybody, in any race, could create a debate using these tools, and do it easily.

To run a debate, some group with some reputation — press, or even election officials, would use the system to create a new debate. They would then gather some initial questions, and invite candidates — usually all candidates in the race, there being no reason to exclude anybody (as you’ll see below.) The initial questions could be in video, coming from press or voters as desired.

The first round of questions would be released to the candidates. They would then be able to record video answers to those questions, in addition to opening statements. They could record answers of any length, or even record answers of multiple lengths, or answers with logical stopping points marked at different lengths. They could also write written answers or record just audio, which is much less work.

After this, candidates could look at what the other candidates said, and then record responses, again in varying lengths if they like. They could then record responses to the responses, and so on. They could record a response to a specific candidate’s statements, or a response applying to more than one, as they wish.

It could also be enabled that candidates could ask questions of other candidates, and those candidates could elect to answer or not answer. They could also agree in advance that they will trade answers, ie. “I will answer one of yours if you will answer one of mine.”

This process would create a series of videos, and we then get to the next part of the tool, which would allow the voter to program what sort of debate they want.

For example, a voter could say:

  • I want a debate between the Republican and Democrat, initial answers limited to around 2 minutes, follow-ups to one minute, up to 2 each.
  • I want a debate between the Republican, Democrat and Libertarian, with follow-ups and videos until I hit “next”
  • I want a debate between all candidates on Climate Change (or any other issue that’s been put in the debate)
  • I want a debate on foreign policy among the top candidates as ranked by feedback scores/Greenpeace/etc.

The voter could have exactly the debate they wanted, and candidates could go back and forth rebutting one another as long as they wanted. Candidates would be able to get statistics on the length of answers that voters are looking for, and know how long a response to give. Typically they would do one short and one long, but they could also make a long response that is structured so it can be stopped reasonably at several different points when the voter gets bored.

Sure, the Republican might decide not to respond to the Green Party candidate’s view on Climate Change. If the viewer asked for a Republican-Green debate, the system would just say “the candidate offered no response.” Voters who wanted could even accept seeing material from other voters.

Candidates would duplicate themselves in answers, so software would convert the answers to text (or campaigns would provide the captions) and the system could automatically remove things you’ve seen, quickly popping up the text for a few seconds. If desired, campaign workers could spend a fair bit of time tuning just what to show based on the history of the viewer’s watching.

For the Presidential debates, building a well crafted set of videos would take time, but probably less time than the immense prep and rehearsal they do for those debates. On the other hand, they get to do multiple takes, so they don’t need to rehearse, just say it until it feels right. It does mean you don’t get to see the candidate under pressure — there is no Rick Perry saying he will close 3 agencies and only being able to name 2. As such it may not substitute fully for that, but it would also allow a low-effort debate at every level of contest, and bring the candidates in front of more voters.

Fixing money in politics: Free, open "campaign in a box"

I’m waiting at CDG in Paris, so it’s time to add a new article to my series about fixing money in politics by looking at another thing campaigns spend money on (and thus raise money for), namely management of their campaigns.

A modern campaign is a complex thing. And yes, most of the money is spent on advertising, GOTV, events and staff. But there’s also a lot of logistics, and a fair amount of software.

In the USA, each big election, both major parties rebuild an election software system largely from scratch. It’s actually the right strategy. With the next election coming in 4 years, the internet and our hardware and software tools would have changed so much that trying to modify the old legacy is an error. So they avoid it, at some cost.

There may be a Presidential election in the USA every 4 years, but around the world, there’s an election somewhere every week or two. So a general “campaign in a box” software package would find regular use, and get regular updating. I propose that this could be done as open source software. Campaigns have reason to be suspicious of any black-box software they might be given, but open source software would let them verify the security of the software, and let them improve it for the world.

There’s only one catch. When one party comes up with a great new tool, they want to keep it as their advantage. They don’t want to give it to the other side. They don’t want to let the other side, or sometimes even the public, see just how they do things. This might counter the virtues of open source. One could imagine a rule that did not require changes to be published until the end of the current election, but that still gives the tools to the “enemy” in the next election. But you get their tools, so it may be a decent exchange. Big computer companies have been happy with this trade.

In the box would be tools for full management of campaign staff and volunteers, events, advertising, GOTV and more. Yes, even though I recently ranted about the damage caused by GOTV, you can put political bias into these tools if they are to work. You have to give the campaigns what they want, even if they want tools to spam, run negative ads and do GOTV. But giving them a nice web site can always help.

The real goal is to make it easier and cheaper to run a campaign. With good software, including good tools for building political ads online and on YouTube, it becomes possible to run a small campaign with more volunteers and less money. That’s the real goal — make it cheaper to run a campaign so candidates feel they can get elected without raising huge sums and becoming beholden.

Election in a Box

Campaign in a box could extend beyond tools for campaigns. It could be part of “Election in a Box” which could provide a suite of open source tools to help both small and large organizations and political jurisdictions to run elections well. Not necessarily digital voting or online voting as I spoke about earliern in the New Democracy topic, but all the other logistics of an election. There are also good designs for open source voting machines which have a donated computer help produce a paper ballot which can be examined by the voter, and then inserted to a scanner to help count it for audited voting.

It could also include tools for doing online candidate debates on sites like YouTube. Imagine a platform where candidates make video clips of themselves answering a set of questions or talking on a set of issues, and then allowing them to make response videos to any other candidate’s video, and to make response videos in turn. This would allow any voter to say, “I want to see a debate between these 3 candidates on these 4 issues” and you could keep watching back and forth until you got bored. Software to do this could bump up the political discourse, perhaps. At least the debates could be a little more engaged and real, and minor parties could participate if people want to see them. Pundits could tell people, “Hey, watch what the Libertarian says in the Health Care question.”

Election in a box would also be very valuable to the small countries and the newly formed countries who don’t have the experience and tools to make such tools on their own.

We in the open source community have done so much to generate and support great software that has been given free to the world for huge economic gain. Perhaps similar effort can save a lot of money for politicians, and make them raise less of it.

Increasing voter turnout with compulsory voting and (gasp) electronic voting

Earlier this year, I started a series on fixing U.S. democracy. Today let me look at the problem I identified as #3: Voter turnout and the excessive power of GOTV.

In a big political campaign, fundraising is king, and most of the money goes to broadcast advertising. But a lot of that advertising, a lot of the other money, and most of the volunteer effort goes to something else called GOTV or “Get Out the Vote.” Come to help a campaign and it’s likely that’s what you will be asked to do.

US elections have terrible turnout. Under 50% in the 1996 Presidential election, and only 57% in more recent contested elections. In off-years and local elections, the turnout is astonishingly low. Turnout is very low in certain minorities as well.

Because turnout is so low, the most cost effective way to gain a vote for your side is to convince somebody who weakly supports you to show up at the polls on election day. Your ads may pretend to attempt to sway people from the other side, or the small number of “undecideds,” but a large fraction of the ads are just trying to make sure your supporters take the trouble to vote. Most of them won’t, but those you can get count as much as any other vote you get. So you visit and phone all these mild supporters, you offer them rides to the polling place, you do everything legal you can to identify them and get them out, and in some cases, to scare the supporters of your opponent.

Is this how a nation should elect its leaders? By who can do the best job at getting the lukewarm supporters to make the trip on election day? It seems wrong. I will go even further, and suggest that the 45% or more who don’t vote are in some sense “disenfranchised.” Clearly not in the strong sense of that word, where we talk about voter suppression or legal battles. But something about the political system has made them feel it is too much of a burden to vote and so they don’t. Those who do care find that hard to credit, they think of them as just lazy, or apathetic, and wonder if we really want to hear the voice of such people.

GOTV costs money, and as such, it is a large factor in what corrupts our politics. If GOTV becomes less effective, it can help reduce the influence of money in politics. It’s serious work. Many campaigns send out people to canvass the neighbourhoods not to try to sway you, but just to figure out who is worth working on for GOTV.

Compulsory voting

Many countries in the world make it compulsory to vote. If your name is not checked off at the polling place, you get fined. Australia is often given as an example of this, with a 91% turnout, though countries like Austria and New Zealand do better without compulsory voting. But it does seem to make a difference.  read more »

Solving the problem of money and politics

A recent Surpreme court case which struck down limits on the total amount donors could provide to a large group of candidates has fired up the debate on what to do about the grand problem, particularly in the USA, of the corrupting influence of money on politics. I have written about this before in my New Democracy Topic, including proposals for anonymous donations, official political spam and many others.

As I strongly believe that it is very difficult to draft campaign finance rules that don’t violate the 1st amendment (the Supreme court agrees) and also that it would be a horrible, horrible decision to weaken the 1st amendment to solve this problem, nasty as the problem is, I have been working on alternate solutions. (I also don’t believe any of the proposed weakenings of the 1st amendment would actually work and not backfire.)

I am going to do a series here on those solutions over time, but first I want to lay out my perceptions of the various elements of the problem, for it is necessary to understand them to fix them. While political corruption is rife anywhere, the influence of big money seems most widespread in the USA.

Problem 1: Politicians feel they can’t get elected without spending a lot of money

Ask any member of congress what they did on their first day in office. The answer will be “made calls to donors.” They are always fundraising, because they don’t think they can get elected without it. They generally resent this, which is a ray of hope. If they thought they had a choice, that they could get elected without fundraising, they would reduce it a lot.

One thing that’s not easy to fix is the fact that if you fundraise, those who give you money will expect something for it, which is the thing we’re trying to eliminate. Even if the donors don’t ever explicitly state that expectation, it is always there, because every candidate will ask if what they are doing will piss off the donors, even more than they will ask what will piss off the voters. If you depend on the donations, you will do what it takes to keep them coming. Donations get a donor’s phone calls and letters answered, as well as requests for meetings.

I say that politicians feel they need money, and in fact they are often right about this. Money does produce votes. But neither are they totally right, as there are alternatives.

As noted in the comments, the length of campaigns plays a role in how much money people need to raise. Due to fixed election dates, US election campaigns are extremely long compared to other countries. (In Canada, an election might be called at any time, and takes place in as little as 36 days. Fundraising is often done in advance, of course, but there is only a little time in which to spend the money.)

The most common proposed solution here is public campaign finance, but I am developing alternatives to that or systems which could work in combination with that.

Problem 2: The main reason they need money is to buy TV ads

About 60% of the budget of a big campaign is spent on ads, most of them on TV. Today online advertising is just 10% of TV.

There is a reason they love TV. It gets to most demographics, and your message can be very dramatic and convincing. Most of all, you reach people who were not looking for your message. Everybody has a web site, but the web site only is seen by people who actively sought it out. TV gets into the homes of an ordinary voter and gives you a shot at influencing them. Other forms of advertising do that too, but few do it as well as TV.

This aspect of the problem is important because we’re in the middle of a big shift in the nature of advertising. The new advertising giant, Google, is a relatively new company with entirely different methods. We’re also in the middle of a big shift in media. Broadcast media, I feel, are on the decline, and new media forms, mostly online forms, are likely to take the lead. When this happens — and I say when, not if — it means that most of the donated political money will flow to the new media. This gives the new media a chance to either be the destination for all corruption money or to change the rules of the game, if they have the courage to do so.

In many cases, the world of advertising hasn’t simply moved form one company to a competitor. In the case of newspaper classified advertising, that industry was just supplanted by free online ads like craigslist. Thanks to internet media, publishing is now cheap or almost free, and advertising is much more efficient and in some areas, cheaper. The potential for disruption is ripe.

Problem 3: The other big effort is “Get out the Vote”

While most of the dollars go to advertising, a lot of them, and most of the volunteer time, goes to what they call GOTV.

GOTV is so important because US voter turnouts are low. 50-60% in Presidential years, less in off-years. Because of that, by far the most productive use of campaign resources is often not trying to convince an undecided or opposing voter to switch to your side, but simply getting a voter who already supports you but doesn’t care a great deal to actually make the trek to the polls on voting day.

While you might imagine elections are fought and won with one candidate’s ads or speeches or debate performance swaying undecided voters one way or another, the reality is that turnouts are so low that GOTV is what decides a lot of races.

Aside from the basic principle that it’s crazy to decide our leaders based on who has the best system of pushing apathetic voters to come to the polls, it’s also true that GOTV uses a lot of money and resources, and as such is another of the big reasons for problem #1. A lot of the advertising purchased is bought to make existing supporters more likely to turn out as much as it’s there to sway undecideds.

There are many areas for solution here, including increasing the voter turnout to a level where GOTV is not so productive. For example, in many countries, voting is mandatory — you are fined if you don’t vote. Chile gets 95% turnout this way, and Australia at 81% is the worst turnout of the compulsory nations.

It is also possible to increase turnout by making voting super-easy. Options such as online or cell-phone voting, while rife with election security and privacy problems, may be worth the risk if they reduce the power of GOTV — or simply make GOTV much cheaper.

Problem 4: Other campaign costs

While they are in 3rd place, the other campaign costs — travel, events, databases, staff, candidate’s time and many other things — still add up to a lot, and it’s money that must be fundraised. Today, all candidates build impressive computer systems from scratch every 4 years. After the election the system is discarded, because in 4 years, technology will have changed so much it is better to rewrite it from scratch.

Elections, however, are taking place every month around the world, which would justify the constant development of generalized campaign tools. If done open source, they could easily be free to campaigns, saving them lots of resources — and the need to raise money for them.

Problem 5: Buying influence pays off

Candidates raise money because they have to, but donors give it because they get good value in return. Yes, some get the “pure” good value they are supposed to get — the hope that they get a better candidate elected, who will run things closer to the way they want. In a general “for the country” sense, not in a personal benefit sense, but even that’s technically OK if it does not involve doing personal favours.

Sadly, they usually get much more than that. They get personal benefit, even the ability to write drafts of laws and stop laws they dislike. Congress members even have a semi-official “pork” system which spreads federal money around districts, to please voters and also donors.

Worst of all, buying influence can be profitable from a pure financial sense. While Shel Adelson might give money to support his views on foreign policy, corporations and many others give money because they feel they will make a profit in the bottom line. As soon as this profit is possible, it’s almost impossible to stop money from flowing in, no matter what rules you make. (It might be noted that Libertarians believe one of the most compelling arguments for keeping the government out of the economy is that a government that has no ability to hurt or benefit economic interests is one that can’t be bribed to hurt or benefit economic interests.)

This is also what makes corporations interested in donations. Corporations, at least in the pure sense, are interested only in the bottom line, and have a fiduciary duty to the stockholders to care only about shareholder value. Some closely held corporations will also take actions based on direct shareholder political interests, and some corporations, like PACs exist to do nothing else but that.

Some solutions can come from changing the system so that it’s just not as productive to buy politicians. This requires new rules on how they vote, which are hard to get. An ideal system might demand that officials recuse themselves from any vote on any bill which would unduly benefit any of their constituents or voters. Vote trading would attempt to get around this, but it seems crazy that today we think it is their job to look out for their constituents (and unofficially their donors) at the expense of the rest of the country.

The most common solution for this problem is to limit donations, with caps for each donor, and also caps on amount raised or amount spent. Success is highly mixed in this area.

Paths to improvement

These nexus points, notable #1, #2 and #5, are the place to look for solutions. While problem #1 can be addressed with limits on donations, fundraising and spending (otherwise known as Campaign Finance Reform) this approach is very challenging. Because of problem #5 in particular, money will “find a way” like water flowing downhill. You may put up a dam but the water will find another channel if it can.

The only defence against issue #5 — that buying politicians is lucrative — is to combine the politician’s core dislike of fundraising with efforts to make it a bit less productive to buy politicians. While money will always try to buy them, if the price goes up, and the need for the money goes down, there can be improvement.

One of the most popular proposals to fix #1 is public funding of campaigns, combined with mandatory or optional limits on fundraising or spending. The latter limits are hard to do under the 1st amendment. This is not because “corporations are people” (a strange meme because that idea never appears in the Citizens United decision that many people imagine it came from) but because freedom of the press, especially for political speech, is not divisible in the 1st amendment. It has always been given to corporations (including ones like the New York Times corporation) and in fact for a century or more, until the rise of the blogging era, almost all press of significance have been corporations.

Attempts to limit what sort of political ads that rich people and corporations may run are extremely difficult under the 1st amendment, as the court has said, and in spite of the terrible problem caused by the influence of money in politics, the 1st amendment deservedly remains untouched. Much of the argument around this case (and Citizen’s United) has been of the form, “Corruption is horribly bad, so the court should decide the 1st amendment doesn’t protect it.” Many things the 1st amendment protects are bad, but we’ve decided letting the government decide which are good or bad is worse. Here, we can add to that the important sense that giving congress extra control over how their elections are run is another very bad idea.

In coming weeks, I will outline alternate solutions. But I also believe neither I, nor anybody else have thought up all the possible solutions. Politics, advertising and media are in a state of flux thanks to new technologies that I and my compatriots have built. Whether you think the future is bright or dark, I can assure you it’s different, and may options for solution to this problem are out there, even those we may not see as yet.

Nate Silver is Not God and other political musings

In the wake of the election, the big nerd story is the perfect stats-based prediction that Nate Silver of the 538 blog made on the results in every single state. I was following the blog and like all, am impressed with his work. The perfection gives the wrong impression, however. Silver would be the first to point out he predicted Florida as very close with a slight lean for Obama, and while that is what happened, that’s really just luck. His actual prediction was that it was too close to call. But people won’t see that, they see the perfection. I hope he realizes he should try to downplay this. For his own sake, if he doesn’t, he has nowhere to go but down in 2014 and 2016.

But the second reason is stronger. People will put even more faith in polls. Perhaps even not faith, but reasoned belief, because polls are indeed getting more accurate. Good polls that are taken far in advance are probably accurate about what the electorate thinks then, but the electorate itself is not that accurate far in advance. So the public and politicians should always be wary about what the polls say before the election.

Silver’s triumph means they may not be. And as the metaphorical Heisenberg predicts, the observations will change the results of the election.

There are a few ways this can happen. First, people change their votes based on polls. They are less likely to vote if they think the election is decided, or they sometimes file protest votes when they feel their vote won’t change things. Vice versa, a close poll is one way to increase turnout, and both sides push their voters to make the difference. People are going to think the election is settled because 538 has said what people are feeling.

The second big change has already been happening. Politicians change their platforms due to the polls. Danny Hillis observed some years ago that the popular vote is almost always a near tie for a reason. In a two party system, each side regularly runs polls. If the polls show them losing, they move their position in order to get to 51%. They don’t want to move to 52% as that’s more change than they really want, but they don’t want to move to less than 50% or they lose the whole game. Both sides do this, and to some extent the one with better polling and strategy wins the election. We get two candidates, each with a carefully chosen position designed to (according to their own team) just beat the opposition, and the actual result is closer to a random draw driven by chaotic factors.

Well, not quite. As Silver shows, the electoral college stops that from happening. The electoral college means different voters have different value to the candidates, and it makes the system pretty complex. Instead of aiming for a total of voters, you have to worry that position A might help you in Ohio but hurt you in Florida, and the electoral votes happen in big chunks which makes the effect of swing states more chaotic. Thus poll analysis can tell you who will win but not so readily how to tweak things to make the winner be you. The college makes small differences in overall support lead to huge differences in the college.

In Danny’s theory, the two candidates do not have to be the same, they just have to be the same distance from a hypothetical center. (Of course to 3rd parties the two candidates do tend to look nearly identical but to the members of the two main parties they look very different.)

Show me the money?

Many have noted that this election may have cost $6B but produced a very status quo result. Huge money was spent, but opposed forces also spent their money, and the arms race just led to a similar balance of power. Except a lot of rich donors spent a lot of their money, got valuable access to politicians for it, and some TV stations in Ohio and a few other states made a killing. The fear that corporate money would massively swing the process does not appear to have gained much evidence, but it’s clear that influence was bought.

I’m working on a solution to this, however. More to come later on that.

Ballot Propositions

While there have been some fairly good ballot propositions (such as last night’s wins for Marijuana and marriage equality) I am starting to doubt the value of the system itself. As much as you might like the propositions you like, if half of the propositions are negative in value, the system should be scrapped. Indeed, if only about 40% are negative, it should still be scrapped because of the huge cost of the system itself.  read more »

Encouraging anonymous political donations

In our effort to reduce the corruption in politics, one of the main thrusts in campaign finance regulation has been for transparency. Donations to candidates must be declared publicly. We want to see who is funding a candidate. This applies even to $100 donations.

While the value of such transparency seems clear — though how effective it’s been remains less clear — there are some things that have bothered me about it.

  1. It’s quite a violation of privacy. We demand secret ballot, but supporting a candidate gets us in a database and a lot of spam.
  2. Some people are so bothered by this invasion of privacy that they actually refrain from making donations, even small ones, to avoid it.

What if we reversed that thinking. What if we demanded that donations to candidates be anonymous?

  • A special agency would be created. All donations would flow into that agency, along with which candidate they are meant for.
  • Only the agency would know who the money went to. After auditing was done to assure the agency was distributing the money correctly, the info would be destroyed. Before that it would be kept securely.
  • Money would be given to candidates in a smoothed process with a randomized formula every few weeks, to avoid linking donations with dates. This might mean delays in getting some money to candidates.
  • While anybody could say that they donated, to offer, solicit, show or receive proof of donation would be a crime. An official method of hiding donations in corporate P&Ls would need to be established.
  • In general, all donations in any given period (a month or quarter?) must be given as a lump sum, with a list of how much to give each candidate. So even if you’re sure a donor would never give anything but party X, you don’t know which candidates in party X.

Now it would not be impossible to hide things entirely. If the Koch brothers say they gave a big donation, and you believe them, it’s fairly safe to say it wasn’t to Obama. At least for now, this will buy them more access to candidates on their side. But this gets harder over time. And the common corporate strategy of donating to both sides of a race to assure access no matter who wins becomes vastly less valuable. While you might convince somebody you are a regular donor and will pull your donation if you don’t get what you want, it becomes very hard for you to prove.  read more »

It will be tough reversing Citizens United

There are a large number of constitutional amendments being proposed to reverse the effects of the recent US Supreme Court decision in Citizens United v. Federal Election Commission.

Here the court held that Citizens United, a group which had produced an anti-Hilary Clinton documentary, had the right to run ads promoting their documentary and its anti-Clinton message. It had been held at the lower court that because the documentary and thus the ads advocated against a candidate, they were restricted under campaign finance rules. Earlier, however, the court had held earlier that it was OK for Michael Moore to run ads for Fahrenheit 9/11, his movie which strongly advocated against re-electing George W. Bush. The court could not find the fine line between these that the lower court had held, but the result was a decision that has people very scared because it strips most restrictions on campaigning by groups and in particular corporations. Corporations have most of the money, and money equals influence in elections.

Most attempts at campaign finance reform and control have run into a constitutional wall. That’s because when people talk about freedom of speech, it’s hard to deny that political speech is the most sacred, most protected of the forms of speech being safeguarded by the 1st amendment. Rules that try to say, “You can’t use your money to get out the message that you like or hate a candidate” are hard to reconcile with the 1st amendment. The court has made that more clear and so the only answer is an amendment, many feel.

It seems like that should not be hard. After all, the court only ruled 5-4, and partisan lines were involved. Yet in the dissent, it seems clear to me that the dissenters don’t so much claim that political speech is not being abridged by the campaign finance rules, but rather that the consequences of allowing big money interests to dominate the political debate are so grave that it would be folly to allow it, almost regardless of what the bill of rights says. The courts have kept saying that campaign finance reform efforts don’t survive first amendment tests, and the conclusion many have come to is that CFR is so vital that we must weaken the 1st amendment to get it.

With all the power of an amendment to play with, I have found most of the proposed amendments disappointing and disturbing. Amendments should be crystal clear, but I find many of the proposals to be muddy when viewed in the context of the 1st amendment, even though as later amendments they have the right to supersede it.

The problem is this: When they wrote that the freedom of the press should not be abridged, they were talking about the big press. They really meant organizations like the New York Times and Fox News. If those don’t have freedom of the press, nobody does. And these are corporations. Until very recently it wasn’t really possible to put out your political views to the masses on your terms unless you were a media corporation, or paid a media corporation to do it for you. The internet is changing that but the change is not yet complete.

Many of the amendments state that they do not abridge freedom of the press. But what does that mean? If the New York Times or Fox News wish to use their corporate money to endorse or condemn a candidate — as they usually do — is that something we could dare let the government restrict? Would we allow the NYT to do it in their newspaper, but not in other means, such as buying ads in another newspaper, should they wish to do so? Is the Fox News to be defined as something different from Citizens United?

I’m hard pressed to reconcile freedom of the press and the removal of the ability of corporations (including media ones) from using money to put out a political message. What I fear as that to do so requires that the law — nay, the constitution — try to define what is being “press” and what is not. This is something we’ve been afraid to do in every other context, and something I and my associates have fought to prevent, as lawsuits have tried to declare that bloggers, for example, were not mainstream press and thus did not have the same freedom of the press as the big boys.  read more »

Customer service survey after every dealing with the police

Some time ago I ranted how I hate being invited to fill out a customer service survey after every bloody transaction in the online world. Companies don’t seem to clue in that if they ask for surveys too much, they end up getting the opinions only of the angered or overeager.

But there’s one place this might make sense. I think you should get a chance to do a survey after every interaction with the police, as well as others who have some color of authority over you (judges, security guards, border patrol etc.) The data you enter would be anonymous, and the survey conducted by a different party bonded to protect your privacy. There would also be entry in some means (perhaps with different classes of card) about whether the encounter was assistive, or was a stop, or lead to arrest though there are limits on this while keeping the data anonymous. If you are required to identify yourself as part of the encounter, this can be your means to getting a card later, though again the data entered must not be tied to your name.

Police would get small cards which have a cryptographic code which allows the bearer to fill out the survey. They would be required to hand one out in any incident. The number handed out would need to be close to the count in their own incident report, so that they don’t just keep the cards to fill out positive surveys on themselves. If police won’t give you a card that’s a serious matter itself.

Of course, people who have been stopped, rather than assisted by police will have a naturally antagonistic view. What would matter in these surveys would be how each officer compares to the other officers. You would not judge officers on their absolute score, but their score relative to other officers with similar duties. These scores would be admissible in court when an officer testifies. An officer with a seriously bad record would become less trusted by judges and juries. The worst cops would have to leave the force, being unable to testify in court without being doubted. And the absolute numbers would also tell us something. On the forms, people could complain about misuse of authority and corruption, and could also leave positive remarks.

The 3rd party taking in the data would have to have impeccable credentials so people trust that it truly destroys any association between submitter and data. They would also have to be trained at how to protect against re-linking. (For example, if dates can be figured out, officers may well be able to connect people with forms. As such data must be released slowly, and only after a large enough number of forms are in the batch, and forms with unique profiles must be merged with care.) In most cases the 3rd party would have to be in another state, and possibly another country to assure it is not under the sway of those it is collecting data on.

We also would have to assure that people don’t try to sell the survey cards. That’s hard, if they are to be truly anonymous. You might have to use them quickly, to avoid giving you time to find a buyer. The 3rd party could run regular stings trying to buy and sell cards and pierce anonymity on just those. I’m sure that there are other ways officers would try to game the system that would have to be found and dealt with. Over time, the data should become public in amalgamated form, not just available to defence lawyers.

Turn-key Democracy

Around the world, revolution has been brewing, and new governments are arising. So often, though, attempts to bring democracy to nations not used to it fail. I don’t know how to solve that problem, but I think it might be possible to make these transitions a bit easier, with a bit of modern experience and technology.

What these aspiring new governments and nations could use is a ready-made, and eventually time tested set of principles, procedures, services and people to take the steps to freedom. One that comes with a history, and with the respect of the world, as well as the ability to win the support of the people. I am not the first to suggest this, and there have been projects to prepare draft constitutions for new countries. George Soros has funded one, and one of its constitutions is being considered in Egypt, or so I have heard.

Eventually, I hope that a basic interim constitution could be created which not only is well crafted, but wins the advance support of the global community. This is to say that major nations, or bodies like the U.N. say, “If you follow these principles, really follow them, then your new government will get the recognition of the world as the legitimate new government”. This is particularly important with a revolution, or a civil war as we are seeing in Libya. Big nations are coming to the aid of those under attack. But we don’t know what sort of government they will create.

Today we assume that a people should self-determine their own constitution, to match their own culture. That is a valid goal, and a constitution just have the support of the vast majority of a people. But the people must also interact with the world, and the government must gain recognition. There are many lessons to be learned from the outside world, including lessons about what not to put in a constitution, even though it matches the local culture. Most new nations still find themselves wracked with sectarian, tribal and geographic divisions, and in this situation, impartial advice and even pressure can be valuable down the road.

Temporary constitution

I believe that each new country needs first an immediate, temporary, minimalist constitution. This constitution would define a transitional government, and put strong time limits on how long it can exist. This constitution would establish the process for creation of the permanent constitution, but also put limits on what can’t go in it without a major supermajority vote. Right after a revolution, a new nation may have a huge, but temporary sense of unity and devotion to principle. That devotion will fade as various factions arise and pressure is applied.

The temporary constitution should be minimalist, as should be the government. It should have strong principles of transparency and accountability, because in turbulent times there is often rampant corruption and theft.

It should also, ideally, bring in principles and bodies of law almost word-for-word from other countries. While this is temporary, it provides an immediate body of precedent, and a large body of experts already trained in that nation’s law. It isn’t that simple of course, since some laws are not meant to be enforced if it is known they are temporary, otherwise people will exploit the expiration.

Possibly the temporary constitution would define an executive with broader power than the permanent one. There may not be the bureaucracy in place to do anything else. It could be that those who serve at the high levels of the transitional government will be barred from standing in elections for some number of years, to assure they really are just there to serve in the transition, and not become new autocrats. This may also be a useful way to make use of the services of the middle echelons of the old regime, who may be the only ones who know how to keep some things running.

Imported, sometimes remote, jurists

If there is some standardization to the system of laws, the new country can import the services of impartial foreign jurists. Some will volunteer and come. Some will come for pay, even though the payment might be deferred until the new country is on its feet. And some might serve remotely, over videoconferencing. Modern telepresence tools might encourage volunteers (or deferred payment workers) to take some time to help a new country get on its feat, providing justice, auditing and oversight.  read more »

Holding an election over SMS

In 2004, I described a system that would allow secure voting over an insecure internet and PC. Of late, I have been pondering the question of how to build a “turn-key democracy kit” — a suite of tools and services that could be used by a newly born democracy to smoothly create a new state. We’ve seen a surprising number of new states and revolutions in the last few years, and I expect we’ll see more.

One likely goal after any revolution is to quickly hold some sort of meaningful election so that it’s clear the new regime has popular support and is not just another autocracy replacing the old one. You don’t have time to elect a full government (and may not want to due to passions) but at some point you need some sort of government that is accountable to the people to oversee the transition to a stable democracy.

This may create a need for a quick, cheap, simple and reliable election. Even though I am generally quite opposed to the use of voting machines, particularly voting machines which only record results in digital form, there are a number of advantages to digital voting over cell phones and PCs in a new country, at least in a country that has a digital or mobile phone infrastructure established enough so that everybody, even if they don’t have a phone, knows someone who has one.


  • In a new country, fresh out of autocracy, powerful forces will oppose the election. They will often try to prevent it or block voters.
  • A common technique is intimidation, scaring people away from voting with threats of violence around polling places.
  • The attacks against digital voting systems tend to require both sophistication and advanced planning.
  • For a revolutionary election, the digital voting systems may well be brought in and operated by disinterested foreign parties, backed by the U.N. or other agencies.
  • An electronic system is also immune to problems like boxes of ballots disappearing or being stuffed or altered.

It may be judged that the risks of corruption of a digital or partially digital election may be less than the risks of a traditional polling place election in a volatile area. It may also be hard to build and operate trustable polling places in remote locations, and do it quickly.

The big issue I see is maintaining secret ballot. It is difficult to protect secret ballot with remote voting, and much easier in polling-station voting. If secret ballot is not adequately protected, forces could use intimidation to make sure people vote the right way, or in some cases to buy votes. I am not sure I have a really good solution to this and welcome input; this is an idea in the making.  read more »

Voluntary Taxes

In my “New Democracy” topic I am interested in ideas about how technology can change democracy and governance. In California, a rule was passed (curiously needing only a 50% majority) that any ballot propositions that wanted to raise new taxes for specific projects needed a 2/3rds majority to come into effect. I’m in agreement with that. My libertarian bent knows the dangers of letting 51% of the people decide to spend the money of 100% of the people on the flavour-of-the-month.

In this county, a proposition that needs 66% asks for a $29 levy on all properties to pay for medical programs for children. How could anybody vote against that? (I have not examined this proposition in detail, but generally when you see “motherhood” propositions on the ballot, particularly bonds, they have been put there by politicians who have other projects they know would not be popular. So they arrange a ballot proposition to raise money for something nobody could be against, which normally they would have had to spend general revenue on, and this frees up general revenue so they can spend it with less accountability.)

But I digress. And I’m not trying to comment on this particular issue or wishing to come out against medicine for children. But in looking at this proposal, it was clear to me that if 2/3rds of voters wanted it, then you would get the same amount of money if 2/3rds of voters just paid $43.50 (50% more) out of their pockets! No need for a vote (which probably costs quite a bit of money) or asking those who don’t agree to pay. In fact, since property owners are probably just a small fraction of the voting population, it might require less than $29 per eligible voter (though not, alas, per ballot casting voter.) With a small amount like this, is there a different way we could do things?

Imagine a contribution system where some sort of publicly funded project could be proposed, with an amount and time period. Each person could register their agreement to pay any amount, including the suggested one, but also less or more. Agreements by registered voters would count as a vote for the plan in addition to being a pledge to pay. (You will see why later.)

(Update: This was written back when Kickstarter and similar companies had just gotten started, you will see similarities to it, and my earlier proposal for congressional voting from 2006.)

The total amount pledged, and the general distribution of it, would be public. People would see if the measure was close to getting its funding target. If it does not reach the target, nobody has to pay. If it reaches the target by a deadline, everybody has to pay what they committed — in fact it is just added to their tax bill. (This works only with property tax and income tax, not with sales taxes.)  read more »

Anti-atrocity system with airdropped video cameras

Our world has not rid itself of atrocity and genocide. What can modern high-tech do to help? In Bosnia, we used bombs. In Rwanda, we did next to nothing. In Darfur, very little. Here’s a proposal that seems expensive at first, but is in fact vastly cheaper than the military solutions people have either tried or been afraid to try. It’s the sunlight principle.

First, we would mass-produce a special video recording “phone” using the standard parts and tools of the cell phone industry. It would be small, light, and rechargeable from a car lighter plug, or possibly more slowly through a small solar cell on the back. It would cost a few hundred dollars to make, so that relief forces could airdrop tens or even hundreds of thousands of them over an area where atrocity is taking place. (If they are $400/pop, even 100,000 of them is 40 million dollars, a drop in the bucket compared to the cost of military operations.) They could also be smuggled in by relief workers on a smaller scale, or launched over borders in a pinch. Enough of them so that there are so many that anybody performing an atrocity will have to worry that there is a good chance that somebody hiding in bushes or in a house is recording it, and recording their face. This fear alone would reduce what took place.

Once the devices had recorded a video, they would need to upload it. It seems likely that in these situations the domestic cell system would not be available, or would be shut down to stop video uploads. However, that might not be true, and a version that uses existing cell systems might make sense, and be cheaper because the hardware is off the shelf. It is more likely that some other independent system would be used, based on the same technology but with slightly different protocols.

The anti-atrocity team would send aircraft over the area. These might be manned aircraft (presuming air superiority) or they might be very light, autonomous UAVs of the sort that already are getting cheap in price. These UAVs can be small, and not that high-powered, because they don’t need to do that much transmitting — just a beacon and a few commands and ACKs. The cameras on the ground will do the transmitting. In fact, the UAVs could quite possibly be balloons, again within the budget of aid organizations, not just nations.  read more »

An alternative to recounts in close elections

Like most post-election seasons, we have our share of recounts going on. I’m going to expand on one of my first blog posts about the electoral tie problem. My suggestion will seem extremely radical to many, and thus will never happen, but it’s worth talking about.

Scientists know that when you are measuring two values, and you get results that are within the margin of error, the results are considered equal. A tie. There is a psychological tendency to treat the one that was ever-so-slightly higher as the greater one, but in logic, it’s a tie. If you had a better way of measuring, you would use it, but if you don’t, it’s a tie.

People are unwilling to admit that our vote counting systems have a margin of error. This margin of error is not simply a measure of the error in correctly registering ballots — is that chad punched all the way through? — it’s also a definitional margin of error. Because the stakes are so high, both sides will spend fortunes in a very close competition to get the rules defined in a way to make them the winner. This makes the winner be the one who manipulated the rules best, not the one with the most votes.

Aside from the fact that there can’t be two winners in most political elections, people have an amazing aversion to the concept of the tie. They somehow think that 123,456 for A and 123,220 for B means that A clearly should lead the people, while 123,278 for A and 123 and 123,398 for B means that B should lead, and that this is a fundamental principle of democracy.

Hogwash. In close cases such as these, nobody is the clear leader. Either choice matches the will of the people equally well — which is to say, not very much. People get very emotional over the 2000 Florida election, angry at manipulation and being robbed but the truth is the people of Florida (not counting the Nader question) voted equally for the two candidates and neither was the clear preference (or clear non-preference.) Democracy was served, as well as it can be served by the existing system, by either candidate winning.

So what alternatives can deal with the question of a tie? Well, as I proposed before, in the case of electoral college votes, avoiding the chaotic flip, on a single ballot, of all the college votes would have solved that problem. However, that answer does not apply to the general problem.

It seems that in the event of a tie there should be some sort of compromise, not a “winner-takes-all and represents only half the people.” If there is any way for two people to share the job, that should be done. For example, the two could get together to appoint a 3rd person to get the job, one who is agreeable to both of them.

Of course, to some degree this pushes off the question as we now will end up defining a margin between full victory and compromise victory and if the total falls very close to that, the demand for recounts will just take place there. That’s why the ideal answer is something that is proportional in what it hands out in the zone around 50%. For example, one could get the compromise choice who promises to listen to one side X% of the time and the other side 100-X% of the time, with X set by how close to 50% the votes were.

Of course, this seems rather complex and hard to implement. So here’s something different, which is simple but radical.

In the event of a close race, instead of an expensive recount, there should be a simple tiebreaker, such as a game of chance. Again, both sides have the support of half the people, they are both as deserving of victory, so while your mind is screaming that this is somehow insane because “every vote must be counted” the reality is different.

This tiebreaker, however, can’t simply be “throw dice if the total is within 1%” because we have just moved the margin where people will fight. It must be proportional, something like the following, based on “MARGIN” being the reasonable margin of error for the system.

  • If A wins 50% + MARGIN/2 or more, A simply wins. Likewise for B.
  • For results within the margin, define an odds function, so that the closer A and B were to each other, the closer the odds are to 50-50, while if they were far apart the odds get better for the higher number. Thus if A beat B by MARGIN-epsilon, Bs odds are very poor.
  • Play a game of chance with those odds. The winner of the game wins the election.

A simple example would be a linear relationship. Take a bucket and throw in one token for A for every vote A got over 50%-MARGIN/2, and one token for B for every vote they got over that threshold. Draw a token at random — this is the winner.

However, it may make more sense to have a non-linear game which is even more biased as you move away from 50-50, to get something closer to the current system.

This game would deliver a result which was just as valid as the result delivered by recounts and complex legal wrangling, but at a tiny fraction of the cost. The “only” problem would be getting people to understand (agree to) the “just as valid” assertion.

And the game would be pretty exciting.

The League of 25 Concerned Citizens

Once they made rules that political ads had to specify who was sponsoring them, we started seeing a lot of ads that would say they were sponsored by some unknown organization with a good sounding name. You see this from all sides of the equation; everybody picks a name that sounds like they are for truth, justice and the American Way, and anybody against them is against those things.

But what does a name like the “League of Concerned Citizens” (I made this up) mean? Very little. So what if we extended the requirement that, at least in the political ads, the name had to talk about how many concerned citizens they represented. You might pay more attention to the “League of 84,000 concerned citizens” than a league of 25 of them.

The number would have to represent paying or contributing members, not just people who put their name on a petition. And even so, special interests would try to game it. But still, “The Sierra Club of 750,000” would hold more weight than “The union of 84 homeowners.”

What to do when the default law is only for suckers

The law is full of defaults, as it is supposed to be. Some are in statutes, some are the result of many years of history of common law. They define the duties that people have in many ordinary transactions.

But today, as I’m sure you have noticed, everywhere you go are declarations eliminating those defaults. Have you parked your car at a pay lot without getting a ticket or receipt that tells you that you are only being rented space, and the lot has no liability if your car is trashed, or that there is no bailment? Have you installed software without having it disclaim any warranties of fitness, or making you waive every liability they can think of? Have you gone into a stadium without some large set of terms on the back of your ticket?

In many areas, in almost all transactions where they can, large (and even medium) organizations work to assure they are not governed by the default law, and that any liability or duty they can be rid of, is made rid of. The default terms only apply — assuming the various adhesion contracts they present are enforceable — to small players who don’t know enough to make such a disclaimer, or who could not afford the legal advice to draft one. By and large, the default liabilities end up only applying to the small-scale operator, and the ignorant.

Surely this is not the intent of the law! And in some cases laws are modified to control what can be waived. But I am not necessarily against giving people the right to redefine the terms of their relationships away from the default. I am pointing out there is a problem when everybody who knows enough to care is trying to get away from the default. In that case the default is not doing what was intended, or even the opposite of it, which is often to protect the consumer.

I propose that part of the legal system include a body which studies the ways in which default law is modified by both explicit, and more importantly, implicit contracts or declarations of modification. As soon as it is judged that this is happening most of the time, the default law should be tuned. It should be tuned so that most of the time a special contract is not needed, or can be made far more simple. Or, in more extreme cases, it should be tuned so that certain modifications are not possible via implicit contract, and sometimes not even possible through explicit but non-negotiable contract. (And in the most extreme cases, possibly not modifiable even with negotiated contract, but I am not in favour of this.)

This might seem to strip people of rights, but it would be rights they had already lost with all big players. There is a cost in trying to get a contract of adhesion, and if done properly, such changes should eliminate the need for them in most cases. One might believe the public would now need to be notified of how their default rights have changed — and they should — but in fact one thing that would be studied would be how many of the public were aware of their rights and actually benefited from their rights. A right that nobody ever benefits from and which just causes an extra contract may not be that useful a right.

And it raises the bar on people who want to bend even further from the norm. If a new norm is defined the safe thing is just to use it, not to try to have to add another contract. One might not take this burden just for one clause.

Of course, it is important to examine the real change the contracts are making in the real results, and not just what they say. The big parties must be showing regular and uniform success in waiving liabilities (or whatever) in order to get a change in the true default law. That’s important, because courts often rule clauses in such contracts to be unenforceable, and further when there is an imbalance of negotiating power, as there usually is here, the courts will side heavily with the party who didn’t write the contract. I’m talking about situations where courts have regularly ruled, for some time, that putting a clause on a ticket will make it enforced, and that effectively every ticket gets that clause.

This is not easy. Implicit contracts, and click-to-agree contracts, are making big changes in how the law works, and the law doesn’t understand these changes very well yet. My goal is not to strip everybody of their rights once an industry decides to do it, but to find a way to make the law and its modifications easier to understand.

Should we let people safely talk to the police?

There’s a bit of an internet buzz this week around a video of a law lecture on why you should never, ever, ever, ever talk to the police. The video begins with the law professor and criminal defense attorney, who is a good speaker, making that case, and then a police detective, interesting but not quite as eloquent, agreeing with him and describing the various tricks the police use every day with people stupid enough to talk to them.

The case is very good. In our society of a zillion laws, you are always guilty of something, and he explains, even if you’re completely innocent, and you tell nothing but the truth, there are still a lot of ways you could end up in jail. Not that it happens every time, but the chance is high enough and the cost is so great that he advocates that you should never, ever talk to the police. (He doesn’t say this, but I presume he does not include when you are filing a complaint about a crime against you or are a witness in a crime against others, where the benefits may outweigh the risk.)

Now fortunately for the police, few people follow the advice. Lots of people talk to the police. Some 80% of cases, the detective declares, are won because of a confession by the suspect. Cops love it, and they will lie (and are permitted to lie) to make it happen if they can.

But since a rational person should never, ever, under any circumstances talk to the police, this prevents citizens from ever helping the police. And there are times when society, and law enforcement, would be better if citizens could help the police without fear.

What if there existed a means for the police to do a guaranteed off-the-record interview with a non-suspect? Instead of a Miranda warning, the police would inform you that:

“You are not a suspect, and nothing from this interview can be used against you in a court of law.”

First of all, could this work? I believe our laws of evidence are strong enough that actual quotes from the interview could not be used. To improve things, you could be allowed to record the interview, or the officer could record it but hand you the only copy, and swear it’s the only copy. It could be a digitally signed, authenticated copy, which can never be taken from you by warrant or subpoena, or used even if you lose it, perhaps until some years after your death.

However, clearly if the police learn something in the interview that makes them suspect you, they will try to find ways to “learn” that again through other, admissible means. And this could come back to bite you. While we could have a Fruit of the poisonous tree doctrine which would forbid this, it is much harder to get full rigour about such doctrines. Is this fear enough to make it still always be the best advice to never speak to the police? Is there a way we could make it self to assist the police?

I will note that if we had a safe means to assist the police, it would sometimes “backfire” in the eyes of the public. There would be times when interviewees would (foolishly, but still successfully) say “nyah, nyah, I did it and you can’t get me” and the public would be faced with the usual confusion over people who are let free even when we know they are guilty. And indeed there would be times when the police learn things in such interviews and could have then found evidence, but are prohibited from, that get the public up in arms because some rapist, kidnapper, murderer or even terrorist goes free.

Disband Congress

No, I don’t mean dissolve congress. Rather I propose a different way to run a legislature in the modern world.

There would be no capitol. Instead, all members would work in their districts, all the time. And we would put in a bunch of extra nice HDTV videoconferencing systems. The system would be designed to handle meetings, all the way up to a full session of the house or senate, with multiple screens to show amalgamated “crowd” as well as close-up views of the important figures — the person with the floor, the person next to get the floor, the last person to have the floor, the Speaker, the party leaders etc. Members would attend sessions that way, and through a secured channel, vote. There would be screens for semi-private discussions with others during the meeting. Of course all this video would be available to the public, too.

Members, and their staffs, could also videoconference in HD with other members and their staffs, as well as any other government officials they need to talk to. And quite possibly, with a few exceptions such as classified committee meetings, all that video would be available to the public too. For those without the equipment, the old capitol would come equipped with meeting rooms that use the system. “Going up to the hill” would mean going to use one of the rooms.

Members could meet in person of course, but they would need to have a chaperone to assure they don’t make secret deals. Classified meetings would get a properly cleared chaperone.

And they could meet with lobbyists over the videoconferencing system too. And those meetings would certainly be available to the public. Registered obbyists need not and could not come to meet in person.

Of course, the members would get out of touch with beltway thinking. They would lose the serendipity of meeting the right person on the hill, the business done at exclusive beltway cocktail parties. But in exchange they and their staff would live and breathe, quite literally, their district. I can see arguments good and bad about the trade-off but it is not clear that either one is inherently superior. It would hurt the DC economy a bit, and airlines would lose some business.

Strictly speaking, all the transparency rules I describe above, where members can’t talk off the record or without chaperones, is not inherent in the idea of a videoconferenced legislature. One could do that and still allow all sorts of unrecorded conversations. They would figure out ways to have them anyway. What the video system does is enables an easy implementation of an all-transparent, all-recorded seat of government.

Food for thought, anyway.

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