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 »

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.

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 »

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.

Consider:

• 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 »

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.)

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 »

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 »

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.

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.”

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.

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.

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.

Pundits like to point out when some new media technology changes seriously changed politics. When I was young, everybody talked about how the Kennedy-Nixon debates ushered in the era of the TV candidate and changed politics forever. (It did indeed seem unlikely a candidate in a wheelchair from polio could win today, but in fact in Bob Dole and John McCain we have two candidates without full use of their arms.)

No doubt when radio came into play there was similar commentary.

But now it’s more rapid. So I’ll make a prediction. Form now on, the pace of change in media and the other technologies of politics will be so rapid that every election will be different in some important way from those before it, due to technology. Some of the changes will be overhyped, some will be underhyped, but there may never again be “politics as usual” — meaning politics as they were 4 years ago.

This will be both good and bad. Most interesting to me is the cost of media. In the USA, most political corruption and influence comes because all politicians feel they must raise a huge amount of money, so much that they spend more time doing that than actually doing their jobs, and they will even admit this. They feel they need to raise this money to make media buys, in particular TV ads. So anything that breaks this equation, such as formalized political spam may have the potential for great good. As for the rest of the changes yet to come, it’s hard to say how we’ll feel about them.

Today I attended a session led by Ka-Ping Yee at our Foresight Nanotech unconference on some of his new thinking in voting machines. While Ping was presenting a system to secure the type of voting machines we’ve been saddled with of late, both he, I and many others like the idea of an open source system which divides the ballot generator from the ballot counter. In such a system you have two machines. One helps the voter prepare a standard ballot that is human readable. In addition, the human readable output is also readable by a machine that scans and counts ballots for quick counting, though the ballots can also be counted by hand.

The idea is that you don’t need to work nearly so hard at securing the ballot preparation machine, as what matters is the paper ballot, which a human is able to scrutinize. So you can have it be open source code, on old donated standardized hardware, which means free voting machines.

However, recent studies suggest that voters can be easily fooled and don’t inspect their ballots very well. Tests show that when fake voting machines deliberately generated errors in the output ballot, or on a “review your choices” screen, 2/3 of voters didn’t notice the errors, and didn’t notice even multiple major errors. Yikes. (Figures corrected.)

Now 1/3 of voters do notice the problems, but it is possible to design problems that the voter will conclude were their own mistake. For example, if their ballot doesn’t show a vote for senator, their natural assumption may be that they just didn’t press the buttons hard enough or otherwise made a mistake, and they should just do it over. However, an attacker can then have 1000 ballots for the wrong senator simply be missing the senator race, and ~320 will go back to fix it, but ~680 will leave it be, depriving said wrong candidate of a large number of votes.

To prevent this, I propose that election officials would regularly, and a random times, run audits of the machines. They would go to a ballot generator and cast a ballot, making a videotape of their session to assure there are no errors. (The voting machine must not be able to tell such a tester from a real voter, so they can’t take extra time on the test, for example.) However, after receiving their prepared ballot, they will indeed make a full check for any sorts of errors, and confirm any errors found on the videotape. Any error found will be extremely serious, and result in immediate cessation of operation of that model of machine and software.

Of course, the system which picks the random times and the ballots to try must not be made by the same parties making the ballot generator. And two officials should examine the ballot after the fact to avoid fraud by officials, and of course to assure the ballot is sealed away in a lockbox and not put in the ballot box or scannng machine. Testing scanning machines is more difficult, as one must have a mechanism to void out a ballot after scanning it and examining the scan. Such actions should be watched by several voting officials and partisan scrutineers.

A modest number of such trials should be enough to assure the ballot generators are acting properly almost all the time, as any error introduced enough times to affect an election would be very likely to intersect with a test run.

Continuing our discussion of the goals of voting systems, today I want to write about ballots that let you vote for more than one candidate in the same race. Many people have seen Preferential voting where you rank the candidates in order of how much you like them. This is used in Australia, and many private elections such as for the Hugo Awards. The most widely known preferential ballot is Single Transferable Vote and its cousin the instant-runoff. Many election theorists, however view these as the worst possible system. I prefer the Condorcet method with the modification that the cases where it fails, it is declared a tie, or a second type of election is used to break the tie. While it has been demonstrated that all preferential ballots have failure modes where they choose somebody that seems illogical based on the voters’ true desires, this does not have to be true when a tie is possible.

Multiple candidate votes would provide a dramatic improvement in the US — they are already used in many other places. They would have entirely eliminated the question of minor candidates “splitting” or spoiling the vote. There would have been no question in Florida of 2000, with Al Gore defeating George W. Bush (and at least by the popular vote, some feel that Bill Clinton would have lost to George Bush the elder, and there’s strong evidence the electoral margin would have at least been smaller.) This is in fact what prevents them from being used — there is always somebody in power who is going to conclude they would have lost has there been a multi-candidate ballot in place. Such people will fight it harder than advocates push it.

Small party candidates want it because it gives them a chance to be heard. Voters who like them can safely express that preference without fear of “spoiling” the race among the frontrunners. Given that, small candidates can eventually become frontrunners. In the 2 party system, as we’ve seen, any time a minor candidate like Ralph Nader gets popular enough that he might actually make a difference, the result is cries of “Ralph, don’t run” and a dropping of support from those who fear that problem.  read more »

In my series on the design of new voting systems, I would now like to discuss the question of high voter turnout as a goal for such systems.

Everybody agrees in enfranchisement as a goal for voting systems. Nobody eligible should find voting impossible, or even particularly hard. (And, while it may not be possible due to disabilities, it should be equally easy for a voters.)

However, there is less agreement about trading off other goals to make it trivial to vote. Some voting systems accept that there will be a certain bar of effort required to vote, and don’t view it as a problem that those who will not make a certain minimum effort — registering to vote, and coming down to a polling station — don’t vote. Other systems try to lower that bar as much as possible, with at-home voting by mail, or vote-by-internet and vote-by-phone in private elections. And many nations, such as Australia, even make voting compulsory, with fines if you don’t vote.

What makes this question interesting is the numbers. With 50% voter turnouts, or even less if there is not an “interesting” race, not having trivial voting “disenfranchises” huge numbers of voters. The numbers dwarf any other number in election issues, be it more standard disenfranchisements of minorities or the disabled, or any election fraud I’ve ever heard about. A decision on this issue can be the most election-changing of any. Australia has 96% voter turnout, and it had 47% turnout before it passed the laws in 1924 compelling voting.  read more »

Yesterday, I wrote about election goals. Today I want to talk about one of the sub-goals, the non-provable ballot, because I am running into more people who argue it should be abandoned in favour of others goals. Indeed, they argue, it has already been abandoned.

As I noted, our primary goal is that voters cast their true desire, independent of outside pressure. If voters can’t demonstrate convincingly how they voted (or indeed if it’s easy to lie) then they can say one thing to those pressuring them and vote another way without fear of consequences. This is sometimes called “secret ballot” but in fact that consists of two different types of secrecy.

The call to give this up is compelling. We can publish, to everybody, copies of all the ballots cast — for example, on the net. Thus anybody can add up the ballots and feel convinced the counts are correct, and anybody can look and find their own ballot in the pool and be sure their vote was counted. If only a modest number of random people take the time to find their ballot in the published pool, we can be highly confident that no significant number of ballots have not been counted, nor have they been altered or miscounted. It becomes impossible to steal a ballot box or program a machine not to count a vote. It’s still possible to add extra ballots — such as the classic Chicago dead voters, though with enough checking even this can be noticed by the public if it’s done in one place.

The result is a very well verified election, and one the public feels good about. No voter need have any doubt their vote was counted, or that any votes were altered, miscounted, lost or stolen. This concept of “transparency” has much to recommend it.

Further, it is argued, many jurisdictions long ago gave up on unprovable ballots when they allowed vote by mail. The state of Oregon votes entirely by mail, making it trivial to sell your ballot or be pushed into showing it to your spouse. While some jurisdictions only allow limited vote by mail for people who really can’t get to the polls, some allow it upon request. In California, up to 40% of voters are taking advantage of this.

Having given up the unprovable ballot, why should we not claim all the advantages the published ballot can give us? Note that the published ballots need not have names on them. One can give voters a receipt that will let them find their true ballot but not let anybody who hasn’t seen the receipt look up any individual’s vote. So disclosure can still be optional.  read more »

This week I was approached by two different groups seeking to build better voting systems, something I talk about here in my new democracy topic. The discussions quickly got into all the various goals we have for voting systems, and I did some more thinking I want to express here, but I want to start by talking about the goals. Then shortly I will talk about the one goal both systems wanted to abandon, namely the inability to prove how you voted.

Many of the goals we talk about are actually sub-goals of the core high-level goals I will outline here. The challenge comes because no system yet proposed doesn’t have to trade off one goal for another. This forces us to examine these goals and see which ones we care about more.

The main goals, as I break them out are: Accuracy, Independence, Enfranchisement, Confidence and Cost. I seek input on refining these goals, though I realize there will be some overlap.  read more »

A well known curse of many representative democracies is gerrymandering. People in power draw the districts to assure they will stay in power. There are some particularly ridiculous cases in the USA.

I was recently pointed to a paper on a simple, linear system which tries to divide up a state into districts using the shortest straight line that properly divides the population. I have been doing some thinking of my own in this area so I thought I would share it. The short-line algorithm has the important attribute that it’s fixed and fairly deterministic. It chooses one solution, regardless of politics. It can’t be gamed. That is good, but it has flaws. Its district boundaries pay no attention to any geopolitical features except state borders. Lakes, rivers, mountains, highways, cities are all irrelevant to it. That’s not a bad feature in my book, though it does mean, as they recognize, that sometimes people may have a slightly unusual trek to their polling station.  read more »

I’ve written before about one of the greatest flaws in the modern political system is the immense need of candidates to raise money (largely for TV ads) which makes them beholden to contributors, combined with the enhanced ability incumbents have at raising that money. Talk to any member of congress and they will tell you they start work raising money the day after the election.

Last year I proposed one radical idea, a special legitimizing of political spam done through the elections office. That will take some time as it requires a governmental change. So other factors are coming forward.

In some states and nations, efforts are already underway to have the government finance elections. The Presidential campaign fund that you contribute to whether you check the box on the tax return or not is one effort in this direction.

I propose that the operators of the big, advertising-supported web sites, in particular sites like Yahoo, Google, Microsoft, Myspace and the like join together to create a program to give free web advertising to registered candidates on a fair basis. This could be done by simply providing unsold inventory, which is close to free, or it could be real valuable inventory including credits for targetted ads.

Of course, not everybody reads the web all day, so this only reaches one segment of the population, but it reaches a lot. The main goal is to reduce the need, in the minds of candidates, to raise a lot of money for TV ads. They won’t stop entirey, but it might get scaled back.

Such a system would allow users the option of setting a cookie to provide preferences for the political ads they see. While each candidate would get one free shot, voters could opt-out of ads for specific candidates or races. (In some cases the geography-matcher would get it wrong and they would change the district the system think they are in.) They could also tone down the amount of advertising, or opt in or out of certain styles (flash, animated, text, video.)

It would be up to candidates to tune their message, and not overdo things or annoy voters, pushing them to opt out.

There can’t be too much opting out though, because the goal here is to deliver the same thing that candidates rely on TV for — pushing their message at voters who have not gone seeking it. If we don’t provide that, we’ll never cut the dependency on TV and other intrusive ads. Allowing these ads to be intrusive seems wrong, but the real thing to do is consider the competition, and what its thirst for money does to society. Thanks to the internet, we’ve reduced the price of advertising by an order of magnitude. If the price of advertising is what corrupts the political system, it seems we should have a shot of fixing the problem.

Ads would be served by the special consortium managing the opt-out system, not the candidate, in order to protect privacy. So if you click on an ad for a candidate, the first landing page is not hosted by the candidate, but may have links to their site.

A system would have to be devised to allocate “importance” to elections. Ie. how many ads do the candidates for President get vs. those for state comptroller.

One risk is that the IRS or other forces might try to declare this program a political contribution by the web sites. If applied fairly to all candidates, we’ll need a ruling that states it is not a contribution. This is needed, because otherwise sites will balk at the idea of running free ads for candidates they dispise.

If the system got powerful enough, it could even make a bolder claim. It could only allow the free advertising to candidates who agree to spending limits in other media. On one hand this is just what most campaign finance reform programs do to avoid the 1st amendment. On the other hand, it may seem like an antitrust violation — deliberately giving stuff away not just to kill the “competition” but actually forbidding the candidates from spending too much with the competition.

This need not be limited to the web of course. Other media could join in, though the ones that already make a ton of money from political advertising (TV, radio) are not so likely to join.

This won’t solve the whole problem, but it could make a dent, and even a dent is pretty important in a problem as major as this.

A proposal by a Stanford CS Prof for a means to switch the U.S. Presidential race from electoral college to popular vote is gaining some momentum. In short, the proposal calls for some group of states representing a majority of the electoral college to agree to an inter-state compact that they will vote their electoral votes according to the result of the popular vote.

State compacts are like treaties but are enforceable by both state courts and federal law, so this has some merit. In addition, you actually don’t even need to get 270 electoral votes in the compact. All you really need is a much smaller number of “balanced” states. For example perhaps 60 typically republican electoral votes and 60 typically democratic electoral votes. Maybe even less. For example I think a compact with MA, IL, MN (42 Dem) and IN, AB, OK, UT, ID, KA (42 Rep) might well be enough, certainly to start. Not that it hurts if CA, NY or TX join.

That’s because normally the electoral college already follows the popular vote. If it’s not going to, the race is very close, and a fairly small number of states in the compact would be assured to swing the electoral college to the popular vote in that case. There are a few exceptions I’ll talk about below, but largely this would work.

This is unlike proposals for states to, on their own, do things like allocate their electors based on popular vote within the state, as Maine does. Such proposals don’t gain traction because there is generally going to be somebody powerful in the state who loses under such a new rule. In a state solidly behind one party, they would be fools to effectively give electoral votes to the minority party. In a balanced state, they would be giving up their coveted “swing state” status, which causes presidential candidates to give them all the attention and election-year gifts.

Even if, somehow, many states decided to switch to a proportional college, it is an unstable situation. Suddenly, any one state that is biased towards one party (both in state government and electoral college history) is highly motivated to put their candidate over the top by switching back to winner-takes-all.

There’s merit in the popular-vote-compact because it can be joined by “safe” states, so long as a similar number of safe votes from the other side join up. The safe states resent the electoral college system, it gets them ignored. Since close races are typically decided by a single mid-sized state, even a very small compact could be surprisingly effective — just 3 or 4 states!

The current “swing state” set is AZ, AR, CO, FL, IA, ME, MI, MN, MO, NV, NH, NM, NC, OH, OR, PA, VA, WA, WV, and WI, though of course this set changes over time. However, once states commit to a compact, they will be stuck with it, even if it goes against their interests down the road.

The one thing that interferes with the small-compact is that even the giant states like New York, Texas and California can become swing states if the “other” party runs a native candidate. California in particular. (In 1984 Mondale won only Minnesota, and got just under 50% of the vote. Anything can happen.) That’s why you don’t just get an “instant effective compact” from just 3 states like California matching Texas and Indiana. But there are small sets that probably would work.

Also, a tiny compact such as I propose would not undo the “campaign only in swing states” system so easily. A candidate who worked only on swing states (and won them) could outdo the extra margin now needed because of the compact. In theory. If the compact grew (with non-swing states, annoyed at this, joining it) this would eventually fade.

Of course the next question may surprise you. Is it a good idea to switch from the electoral college system? 4 times the winner of the popular vote has lost (strangely, 3 of those have been the 3 times the winner was the son — GWB, Adams - or grandson - Harrison- of a President) the White House. The framers of the consitution, while they did not envision the two party system we see today, intended for the winner of the popular vote to be able to lose the electoral college.

When they designed the system, they wanted to protect against the idea of a “regional” president. A regional winner would be a candidate with extreme popularity in some small geographic region. Imagine a candidate able to take 90% of the vote in their home region, that region being 1/3 of the population. Imagine them being less popular in the other 2/3 of the country, only getting 31% of the vote there. This candidate wins the popular vote, but would lose the electoral college (quite solidly.) Real examples would not be so simple. The framers did not want a candidate who really represented only a small portion of the country in power. The wanted to require that a candidate have some level of national support.

The Civil War provides an example of the setting for such extreme conditions. In that sort of schism, it’s easy to imagine one region rallying around a candidate very strongly, while the rest of the nation remains unsure.

Do we reach their goal today? Perhaps not. However, we must take care before we abandon their goal to make sure it’s what we want to do.

Update: See the comments for discussion of ties. Also, I failed to discuss another important issue to me, that of 3rd parties. The electoral debacle of 2000 hurt 3rd parties a lot, with a major “Ralph don’t run” campaign that told 3rd parties, “don’t you dare run if you could actually make a difference.” A national popular vote would continue, and possibly strengthen the bias against 3rd parties. Some 3rd parties have been proposing what they call a “safe state” strategy, where they tell voters to only vote for their presidential candidate in the safe states. This allows them to demonstrate how much support they are getting (and with luck the press reports their safe-state percentage rather than national percentage) without spoiling or being accused of spoiling.

Of course, I think the answer for that would be a preferential ballot, which would have to be done on a state by state basis, and might not mesh well with the compact under discussion.