Twitter's decision to no longer take political advertising is causing a stir, and people are calling on Facebook to do the same. Political advertising isn't just an issue now that we've learned that Russians are doing it to screw with elections. It's the sink for almost all the money spent by campaigns, and thus all the money they raise from donors. The reason that people in office spend more than half their time fundraising is they feel they have no choice.
I have many things to discuss on the problem of "fake news" (which is to say, deliberately constructed false reports aimed to be spread to deceive) and the way it spreads through social media. This hot topic, seen as one of the largest threats to democracy to ever arise -- especially when combined with automated microtargeting of political propaganda -- is causing people to clamour for solutions.
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.
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.
At this week's Singularity U Global Summit, I got a chance to meet with Josh Silver and learn about his organization, represent.us. I have written often in My New Democracy Category on ways to attack the corruption and money in politics. Represent.us is making a push for the use of laws to fix some of these issues, through ballot propositions.
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.
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.
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.
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.
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.
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.
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.
- 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.
- 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.
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.
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.
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.
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.