Fix the Senate III: Stochastic Gong Show

American government has an obvious problem. The only elected official held accountable for whether the government as a whole is effective is the President. But the President, under our checked-and-balanced system, cannot govern effectively without the active cooperation of Congress.

For members of Congress, how effectively we are governed during their tenure is basically a non-issue. Representatives are held accountable not for how the country is doing, but for the bills they personally sponsor and for how they individually vote. They have every incentive to pander pointlessly to key constituencies and to avoid contentious votes that might anger people, regardless of how essential the issue. Ultimately, the public interest is bound to the portfolio of legislation a Congress produces, while a legislator’s interest is bound to the popularity of individual bills and votes they become identified with. And to the unpopularity of votes they can avoid becoming identified with — much of why we have an “imperial” Presidency is because, on matters like war and peace for which Congress is Constitutionally responsible, our representatives rationally abdicate. They prefer to cede hard calls to the executive, so they cannot be blamed for whatever happens.

This helps explain a stylized fact of American politics: The public detests Congress as a whole, but loves their own representatives. Each member of Congress tailors her actions to keep the love of her own constituency, and usually succeeds. But all that preening and ducking of controversy fails to compose to an intelligent portfolio of legislation, conducive of high-quality government. Even when a single party controls Congress and the Presidency, for most representatives, the electoral cost or benefit of how well the country is governed under their party’s “brand” is modest compared to the personalized costs of a vote that might upset important constituents.

We would be better governed if Congresspeople had a stronger stake in the success of their legislative bodies as a whole than they had in their personal popularity with constituents. But we have no institutions that rewards elected officials for the collective successes, or punishes for the collective failures, of the bodies they constitute. We should create such institutions.

Suppose that at every Federal election, a yes/no question were placed on the ballot. “Do you approve of the job the US Congress is doing?” The result would be aggregated, one person one vote, into a national approval rating. Senators are ordinarily guaranteed six-year terms. But suppose (following the Constitutional amendment that would be required to enact this) each just-reelected or two-year-in Senator stood in jeopardy of losing their protracted terms, and being forced to stand again for election in just two years. For each such Senator, we’d perform a lottery in which the probability of having their terms abruptly shortened would be (1 - approval_rating). If Congress had a 100% approval rating, then senators could be as secure in their jobs as they are today. If Congress has only a 33% approval rating, however, then two-thirds of incumbent senators who might have looked forward to four or six years of job security would find themselves thrown untimely before the tribunal of the people. This would create a strong incentive for Senators to govern in ways that not only endear them to their own constituents, but also persuades the national public that Congress as a whole is discharging its duty of representation and governance well. [*]

I call this idea a “Stochastic Gong Show”, after the television variety show during which judges would cut poor performances short by banging on a gong. We would all stand in judgment of Congress, as we should. But rather than deterministically ending bad numbers with a bonk, we’d decide the risk our players face if they fail to choreograph a dance that delights the public.

An objection might be that it would only apply to senators, who would be judged for the performance of Congress as a whole. But maybe that’s okay. The Senate in practice is the more powerful house of Congress, populated by the more senior members of each party who are not without influence over their colleagues in the other chamber. If Senators really need Congress to work, they can go a long way towards making it happen.

A practical objection is that, under the only Constitutional amendment process ever thus far used, a supermajority of the Senate would have to approve adoption of this proposal, whose function and intent is to make senators uncomfortable, for the good of the nation. However, anything is possible if the public is sufficiently convinced it’s a good idea. “Stochastic Gong Show” sounds like a dorky thing attractive to people like me (and not just) who think injecting some randomness into democracy could do a lot of good. But the basic idea of a mechanism that automatically throws the bums out when, overall, we agree they’re doing a crappy job, strikes me as one that could be popular.

Notes: I first presented this idea a couple of years ago. It owes something to this proposal by Robert Merkle, who similarly proposes using an approval rating to drive political institutions, though he goes well beyond that, proposing (after Robin Hanson’s “futarchy“) that policy choices should be driven by market-predicted approval ratings conditional upon adoption.

[*] If this level of risk seems too strong, the formula could be generalized to 1-(k+approval_rating)/(k+1), for a chosen value of k. If k is zero, we have the original formula. If k were 1 and Congress’ approval rating was 33%, each senator’s risk of a shortened term would be 1-(1+1/3)/2, 1/3 rather than 2/3.

Office Hours: I’ve taken to doing Zoom office hours on Friday afternoons, 12pm Pacific / 3pm Eastern / 8pm. If you’d like to join, let me know by e-mail or Twitter DM or in the comments here and I’ll send you an invite. (If you use your real email when leaving a comment, I’ll have it but it won’t be published.)

Fix the Senate II: Integrate

One way to address the absurdly disproportionate representation of the US Senate is to take it as a challenge, rather than a problem. The broken Senate does not in fact represent some kind of “wisdom of the Founders”. They knew it was a mess. Here is Alexander Hamilton (as recorded by James Madison), opining presciently:

Another destructive ingredient in the plan, is that equality of suffrage which is so much desired by the small States. It is not in human nature that Va. & the large States should consent to it, or if they did that they shd. long abide by it. It shocks too much the ideas of Justice, and every human feeling. Bad principles in a Govt. tho slow are sure in their operation, and will gradually destroy it.

States were given equal Senate representation despite vast differences in population because the ratification of the Constitution required smaller states to sign on, and without this concession they would not. There was not much pretense of principle in the thing. It was a politically necessary compromise.

Nevertheless, in the spirit of lemons to lemonade, let’s suppose there could be some virtue in the arrangement. What might it be? Well, the disproportionality of representation is only harmful to the degree that smaller states as a group have interests at variance with larger states. The political party whose power currently depends upon the Constitution’s several disproportionalities has taken to a rhetoric of the “left behind”. If one wanted to impute wisdom to what in fact was crass compromise, one might argue that the purpose of the Senate’s “equal Suffrage” of states is to make sure that smaller political subunits, which are individually less influential, could not as a group simply be ignored or left behind by the centers of population and industry. That comes to “shock…the ideas of Justice” only when there are stark divergences in values and interest between political subunits sorted along the dimension of population size. If voters in small states (as a group) behaved similarly to voters in big states, the Senate’s disproportionate enfranchisement of small states wouldn’t matter. There shouldn’t be two Americas, one predominant in small states, another in big states, whose values and interests sharply differ. Our fortunes should rise and fall together. When the states’ equal Suffrage in the Senate is a live issue, it means that we have failed, as a country, to integrate.

As a practical matter, how could we cure this divergence between the interests of small states (as a group) and larger states? Two approaches are obvious. The simplest but not sweetest approach is to simply augment the existing group of small states with new states whose values and interests would make the full complement more closely resemble big states. Under contemporary partisanship, if we make a city-state of Washington DC, the mostly Republican politics of small states as a group would shift a bit towards Democrats, because the urban density that would characterize this new state is a key predictor of Democratic vs Republican politics. If Puerto Rico were made a state, the ethnoracial demographics of small states as a group would come to resemble larger states and the nation as a whole more closely. [*]

Diluting away the differences between smaller states and larger states is a straightforward approach to remedying the Senate’s legitimacy crisis, but it is also an ugly way. It leaves citizens of current smaller states understandably cynical that beneath all the high-minded talk of proportionate enfranchisement, the goal is simply to override their interests in a sphere where they happen to have an advantage. Statehood for DC and Puerto Rico are just causes on their own terms. Regardless of their partisan inclinations, the populations of those territories ought not be disenfranchised. But gerrymandering (or degerrymandering) the Senate for partisan advantage is zero-sum hardball politics. I’ll take it if the alternative is the other guy’s hardball bonks me on the head. But I’d prefer other ways.

A better, but slower and harder, way of addressing the Senate’s legitimacy crisis is to address the causes of the divergence of interest between small and large states that leads to divergent and extreme partisanship. Strong predictors of US partisanship now include urban versus rural, more versus less formal education, less versus more religious, nonwhite versus nwhite, young versus old, and female versus male. Controlling for these other factors, “poor” versus “rich” is not, I think, a reliable predictor of party identity in the United States. (Am I wrong?) That strikes me as extraordinary in a country where one party still gets coded “left” and the other “right”. Furthermore, at the state rather than individual level, affluence (in per-capita GDP terms) correlates with Democratic rather than Republican party identification, and smaller states are likely to be poorer. The Senate does, in this sense, overrepresent Republicans as the left-behind.

There are lots of ways that groups of states could diverge from one another, but if we are interested in addressing the Senate’s legitimacy crisis, we should want to encourage smaller and larger states to become more alike along these dimensions that become entrenched in partisan politics.

Robert Manduca has a wonderful essay on “place-conscious” policy. “Help people, not places” is an econowonk catchphrase that is finally, fortunately, finding its way to the rubbish heap. For most people, the costs of relocation are high. Humans are not like the atomic individuals economists commonly model. That academics and career-driven professionals are geographically mobile renders them an exception they too often mistake for normal, or impose as a norm. You cannot help most people independently of the places and communities to which they belong. To require geographic mobility — interneighborhood, let alone interstate — is to impose harm upon the lived communities that substitute for capital among all but the most affluent classes. If your values, like mine, are liberal, you cannot help but want to enable geographic mobility. To be sure, the space between “require” and “enable, between coerced and voluntary, is always a spectrum, a continuum, a slippery slope. Still, we should strive to create a world in which, for most people, staying where you’re from is a fine option, but it’s easy to go elsewhere too. And (contentiously when you think about it this way) we should strive to bring more people into the affluent classes, so that people need to rely less upon particular relationships for risk management, so that the freedom whose flip side is rootlessness becomes less harmful.

We should want poorer states to become richer, in per-capita terms, and the divergence of prosperity across states to decline. Just as the law in its majesty forbids rich and poor alike to sleep under bridges, liberalism in its majesty enables rich and poor alike to uproot themselves and choose their own communities and lifestyles. If Mississippi were as prosperous as California, a greater share of citizens in Mississippi would become more “liberal” in the simple sense of valuing choices that liberals value. But those choices mean little to those who cannot exercise them, because they are not rich enough, or because they are relied upon by others who cannot afford to depend solely on the market for support. There are lots of policies that could help to equalize prosperity across places, including a UBI (whose level, importantly, would not vary by local cost of living), a high Federal minimum wage; and airline reregulation that prioritizes universal service at similar rates, rather than “efficiency” and cheap fares for the most competitive markets.

Smaller states are disproportionately rural and low density, while larger states are disproportionately urban and high density, contributing to (or at least predicting) their partisan tilt. Every state of the union has cities, though. Adopting policies that encourage development and growth of smaller and midsize cities, perhaps at the population expense of contemporary superstar cities in high population states, would help bridge the partisan divide. The experience of the pandemic, and the normalization of remote work, may go some way towards this result even without new policy. Matt Yglesias points out that (absent some subsidy through policy), refugees from superstar cities are more likely to move towards places with a low cost of living and nice weather or tourist amenities than they are to the struggling post-industrial cities that policymakers often seek to “revive”. But from the perspective of integrating small and large states, that’s probably okay. Nice weather and tourist amenities are much less concentrated in high population states than superstar cities are, and smaller states tend to be cheaper to live in. Tesla and Oracle are huffily relocating their headquarters from California to Texas, and some Silicon Valley VCs are making a big show of migrating to Miami. The irony is that while principals and VCs are looking for red-state amenities — lower taxes and lighter regulation — they will carry with them large workforces of educated professionals, who are likely to shift the political cultures of their new homes blue. The result will probably be more “purple states”, which are great for national cohesion. But it would be even better if this tech exodus to red, cheap states alit on smaller, warm states like coastal Mississippi, or tourism havens like Maine, Montana, Idaho, and Utah, to develop new headquarters. Wyoming has tailored a regulatory environment friendly to blockchain fintech, but that seems to have drawn corporate domiciles more than human enterprise so far. Wyoming is beautiful! Go forth, my cryptolibertarian friends, and actually build your cryptoutopia there! Smaller, poorer states are friendlier to new development than more crowded and prosperous states, and several have stunning places not as resort-famous. The Dakotas, Arkansas, West Virginia are all great candidates to develop de novo tech hubs attractive to megacity refugees. Small-state cities are also great candidates for diversifying the geographic footprint of the Federal government. Conversely, we should think about ways of strengthening (perhaps subsidizing) rural small towns. That would both diminish the prosperity gap between smaller more rural states and large states, and it would revitalize rural areas in big states, decreasing the urbanization gap from the other direction.

Educational “attainment” tends to distinguish smaller states from large. Noah Smith has argued that non-“elite” colleges and universities could be key nuclei for revitalizing rural parts of the United States. Smith emphasizes the stimulative effect of university research rather than teaching, pointing out that undergraduates often move away after graduation. But I don’t think that’s so true of less elite institutions. The United States’ community college system is a tremendously underrated asset that could help bridge a wide variety of social divides. If we allowed community colleges to earn accreditation to confer four-year degrees, they could do a tremendous amount to overcome education polarization, working within more geographically rooted communities. A Federal program aimed at expanding the scope and reach of community colleges (which could and should be made tuition free) would be popular throughout the country. On both cultural and local-economic grounds, supporting community colleges is more broadly acceptable than supporting flagship state research universities (or elite private higher ed). Small state Senators would I think support a community college expansion, particularly if it included some targeting towards places where the share of college graduates is low. The net effect of such a program would be to reduce the polarization of educational attainment between small states and large.

Ethnoracial and religious polarization are harder to address, because the legitimacy of policy that directly targets these “identities” is contentious in the United States. Policies like those described above would, I think, also encourage demographic convergence. If we did want to tackle demographics more directly, I still think “neoliberal desegregation” might be a good idea.

This post has become a laundry list of policy suggestions. But let’s pull back again to the big picture. The design of the United States Senate means that, if there are systematic divergences of values and interest between small and large states, the nation will be subject to legitimacy crises. On the one hand, the remarkably disproportionate influence of smaller states in the Senate makes a mockery of one-person, one-vote democracy. On the other hand, the authors of our Constitutional adopted this framework eyes-wide-open, precisely because small states would not consent to joining a union in which their voices would be consistently overwhelmed. Altering the “equal Suffrage” of states in the Senate is foreclosed even by Constitutional amendment. The only way to mitigate this tendency towards corrosive crisis is to ensure that differences of interest between larger and smaller states are generally modest. When, as now, those differences become large, the stability of the nation requires that they be addressed. One way they could be addressed is by adding states, small states whose values and interests are like existing big states, or big states whose values and interests resemble existing small states. But that’s a bit ugly, as it seeks national comity by overriding the preferences of existing states, diluting them into a country where they might “democratically” be ignored. Alternatively, there are policies, including place-based economic development, support for midsize cities and small-towns, and expansion of community education, that might be welcomed in states large and small, while reducing the divergences that threaten the democratic character of our union. We should pursue such policies aggressively.

[*] However, I don’t think it’s remotely clear that Puerto Rico would favor Democrats. Two out of the last three of the island’s non-voting House delegates identified as Republican, and education polarization would place the island squarely among the red states. Statehood for Puerto Rico would be good for the US in part because Republicans would contend for it, and would be a better party for having to contend for it.

Note: I accidentally hit publish while I was still editing this piece, then reverted it to draft status. If you happened to see the version I let briefly slip, there’ve been more and more substantial changes than I’d usually allow without an “update history”. The intended “final” publication time was 9:28 EST / 6:18 PST on February 2, 2021.

Fix the Senate I: Scrap the filibuster

The United States Senate is a catastrophe.

It is prima facie anti-democratic: 38 million voters in small states have 15 times the representation as California’s 40 million voters. Extra-constitutional Senate rules and practices, most notably the maximalist filibuster, have turned the body into a “kill switch“, one veto point to rule them all. They have enabled a minority faction to block and obstruct, to prevent any constructive governance at all except when it will redound to the political benefit of that faction. Institutions of government matter. “Democracy” is not some free-standing good thing. If it is to be good, and if it is to survive, it must be embodied in particular, functional institutions. In the contemporary United States, that is not the case.

The Senate is hard to fix. Disproportionate representation of citizens in the Senate (described as “equal Suffrage” of states) is specifically excluded from amendment by the Constitution. In this series, I’ll describe three reforms that I think would improve the Senate, ordered from least to most speculative. The first is easy to enact and very widely discussed. I’ll just add my voice to the chorus.

Right now, this week, we should improve the Senate by eliminating the filibuster. Ryan Cooper has an excellent piece on how this would work (with a pointer to Akhil Reed Amar, whom I love for his work on lottery voting).

I’ve come to oppose the filibuster reluctantly and with some sadness. In a better-arranged polity, modest supermajority requirements might play a useful role. A democracy at its healthiest governs by persuading a broad center, rather than lurching back and forth between irreconcilable agendas of hostile but nearly balanced factions. In defiance of the median-voter-theorem, tack-to-the-center claims made on its behalf, the United States’ two-party system, has reshaped us into two hostile factions, nearly balanced not in absolute numbers but in terms of how our system translates numbers into power. We are, as Lee Drutman puts it, caught in a “doom loop” that is entirely an artifact of a bad political system, not the existential struggle between distinct peoples too many of us are lazily permitting themselves to conceive. Simple majoritarianism is a cause of this catastrophe, as it tempts people to govern with 50% + 1 coalitions that entirely ignore the values and interest of the other 50%. This is an ugly kind of polity. However, the Senate’s effective supermajority requirement via the filibuster has not overcome the incentives of the two political parties, and the incumbents they run, to divide us. It has merely incapacitated us. The filibuster has become a minority veto, which, given the disproportionality of representation within the Senate, could in theory be exercised by Senators elected by fewer than 10% of voters. In practice, it’s not quite that bad, but still terrible. Under current circumstances, a blocking coalition of Republicans can be mustered from Senators representing only 25% of the population, elected by a share of voters even smaller than that. (Even in red states, Republican senators occasionally receive less than 100% of the vote.)

There is a case to be made for a supermajority legislative threshold. But an effective 75% threshold in terms of population represented (ignoring incomplete support among voters) is a prescription for paralysis. Worse, the threshold is asymmetric. While Democrats face that 75% threshold, Republican-backed initiatives pass with assent of representatives of only 54% of citizens. This is an institutional embodiment of “my way or the highway” for the Republican Party. Both parties can force inaction, only one can enable it, despite approximately balanced support within the population. [*]

A principled supermajority requirement might be established in the House, rather than the Senate, in combination with redistricting or other reforms that ensure representation in the House is proportionate to voter support. The current Senate filibuster is simply indefensible. The Democratic majority should scrap it, today.

[*] A bit of an irony that I’ve not seen discussed is that in 2020, Democrats gained control of the Senate, but actually lost the chamber’s overall popular vote to Republicans by a slim margin. (The numbers cited exclude the George special election results, but they’d not change the basic picture.) In 2018 and 2016, however, Democrats won more Senate votes than Republicans, by substantial margins, but did not win control the chamber. Obviously, the US Senate’s composition during any given Congress reflects the results of three elections, so even if we adopted a voting system that made representation in the chamber proportional by party to overall votes received, a given cycle’s winners would not necessarily gain control. However it’s a bit weird and wacky that Democrats gained seats and control during a cycle when they lost the popular vote, while in 2018 Democrats lost seats despite a blowout popular vote win. The quirks in our system can cut both ways.

Missing the forest

Atrios does a good job of capturing how I actually feel about people on the so-called center-left (most notably Larry Summers) wonkifying their way out of support for near-universal $2000 checks. They are mistaken on the narrow technocratic grounds over which they claim authority, an authority that decades of experience prove they absolutely do not deserve. But they are mistaken (or worse than mistaken) at a more fundamental level. They do not get (or if they do get, they have never deigned to address) that the point of universalist benefits isn’t to stimulate the economy, nor to maximize utility while minimizing a fiscal outlay, but to reorder the relationship between citizens, the state, and one another.

Let’s start with the most straightforward case against $2000 checks. Here’s Catherine Rampell:

Simply put, sending money to nearly every American family to ensure that help gets to the much tinier fraction who actually need it is not a terribly efficient use of resources. The payments end up being a pittance for higher-income, fully employed households, yet insufficient for the households that suffered large income losses. The error is compounded if these funds come at the expense of more targeted relief measures — such as expanded unemployment benefits, which the new law guarantees only through March.

Advocates on the left argue that there is room to do both. But even if you believe that there are no real debt constraints, given how low interest rates are, there are still political constraints. Republicans set a $900 billion cap on relief measures in the final deal, which meant that funding stimulus payments required shortchanging unemployment benefits (and state and local assistance).

First, it’s worth noting that Rampell is misleading on the facts here to help buttress her case. It is true that Republicans initially tried to cap the deal size, and so that when $600 checks were included in the current version of the relief bill, the funds were clawed away from other uses. However, the cost of a potential increase from $600 to $2000 was never proposed to be taken from elsewhere. What Republicans like Donald Trump and Josh Hawley proposed was to simply increase the size of the bill.

Rampell is taking a constraint as given, immutable if not by hard economics then by hardball politics, even when by the time she wrote, the constraint was already contested within the political caucus supposedly imposing it. But political constraints are endogenous, and the very purpose of universalism is to reshape them. It blows my mind that Rampell quotes an estimate that the proposed checks would benefit 94% of US households like that is a bad thing. If you believe (as I think Rampell does!) that a just and functional polity will require a larger state footprint in fiscal affairs (which need not not imply bigger deficits, but larger gross outlays which may or may not be matched with offsetting taxes) then surely the program’s benefiting lots and lots of people should be scored a plus!

If you imagine you are the wise planner, given $400B-ish to spend as you choose, then yes, maybe you could do more good with some allocation other than universal-ish checks. But who is living in political fantasyland in this thought experiment? The $400B only exists as potentially allocable money because universal outlays are popular. And a state that typically provides benefits on universal terms will be popular in general, relaxing constraints on further state action — on outlays, but also on progressive taxation, which the state’s beneficence will render more palatable. And progressive taxation will help target net benefits, despite untargeted outlays, relieving economic (as opposed to political) constraints on state action, while also countering democracy-corroding wealth concentration and improving the predistribution. It’s win-win-win!

Paul Krugman writes

No binding budget constraint for the feds, so this is all about politics. And my sense is that broad issuance of checks is actually kind of a loss leader, helping to sell a package that includes UI

At the time he wrote this, still-too-stingy UI had already been passed and signed into law as part of the relief package, and no further expansion was on any political horizon. So maybe original the $600 was the sugar for a broader public to help make more desperate medicine go down, but, as with Rampell, there’s this reluctance to acknowledge that universal benefits might be worthwhile on their own terms because the space of the politically possible expands when broadly everyone is a beneficiary. An increase now from $600 to $2000 wouldn’t be a “loss leader” for any other thing. It would, however, increase the public’s satisfaction with and broad enthusiasm for government and therefore increase the probability that America rediscover’s the virtues of collective action in some broadly general interest, without which we face an apocalypse.

Technocratic authority so often just gives cover to myopia. It’s easy enough to compare different allocations of a hypothetical $400B, and sound smart dissing the “untargeted” one as suboptimal. It can be gratifyingly technical to compute (under tendentious assumptions) little cost-benefit analyses, one controversy at a time, taking the horizons of any deeper future as given, immutable as a lazy shorthand for unknowable. That is a way of sounding smart while being stupid. It has gotten us just where we are.

Judged not as a one-off, but as precedent and practice, universalism is good policy on technocratic grounds. Myopic optimization in response to every shock scrambles incentives (as people try to account for ways their actions might place them in or remove them from classes that will seem worthy of assistance). It creates embittered losers every time, people who feel deserving of aid but whom policymakers decide (optimally or arbitrarily) to exclude. In practice ad hoc optimization is gamed (see, for example, the contemporary PPP program), leading to widespread perception, and also the reality, of corruption, further discrediting government action. The Obama-ites thought their financial crisis response was “smart”, putting out fires while putting wooly concerns about justice and power to the side. It was optimal in the same way that the next dose of heroin is optimal for an addict. It’s true, after all, that absent a dose, the addict will get very sick! We need a theory of state action that is effective at addressing current crises — even profound crises like COVID and the 2008 financial collapse — while supporting rather than undermining social cohesion and the legitimacy of the state. Universalism is that theory.

In the previous post, I wondered: If we now conceive of racism as systemic and institutional, rather than individual and personal, could we also do the same for love? Universalism is one way of embedding unconditional love in the shape of our institutions. The warmth of our civilization flows to all, not in the form of threadbare assistance to those who prove they “deserve” it, but as benefits that we all share. It’s the contribution to this social foundation that we’d means-test, through the tax system. One can imagine, neoliberally, that taxation to support a generous universal foundation would so blunt incentives to produce that we’d collapse to destitution. Have you noticed, neoliberally, that we are already in collapse due to precarity, social resentment, incapacity to manage conflicts and coordinate through government? Is it really inadequate incentives to succeed that are holding back our advances, technological and otherwise, or the fact foregoing a career at McKinsey or Google to do something interesting is just too risky, given how precariously we all live, how far there is to fall? Universal benefits are popular because they are actually good, in both a technocratic and ethical sense. They are opposed by incumbent interests not because they would fail, but because they might succeed.

I’ll let Atrios have the last word:

[T]hey would prefer plunging the economy into a deeper recession and the misery of millions of people on the off chance people might realize government is actually capable of doing things for them.

1303 words

The people whom it is easiest for me to love are people who love words. When I am in company, I live for conversation. When I am alone, I read. When I am not reading, not working, when I am not “consuming” media or running errands, my mind is at play. My play is word play.

Perhaps it is yours as well, dear reader. There’s selection bias here. Readers of words like these, impractical superfluous words, are a different population than readers of memoranda, court orders, and instruction manuals. If you are reading these words, you probably read novels. Have you noticed how in novels, at a level of generality that ridiculously broad, the protagonists, the good guys, the heroines and heroes, are disproportionately bookish? We love the word, we readers and writers, and through the word we recognize one another, we love one another. We construct our selves, our souls, from words we mouth incorporeally, and our conversations are sex, incorporeally. Arguments if we like it rough.

The word is a sign, its nature, taught Saussure, arbitrary and differential. So too is human love. It is often arbitrary, whom we love, a matter of chance and circumstance and accidents of birth. Love is differential. The set of those to whom we give our hearts tacitly defines a complement, those to whom we do not.

We, you and I, readers and writers, we lovers of the word and so lovers of each other, fancy ourselves cosmopolitan. We read from many cultures, perhaps in many languages. Yet reading itself is its own insularity. Culture is an insularity. To the theater-goer, the kind of person unlikely to come to a play is visible only as refracted through the words of a playwright, who is likely to be the kind of person likely to come to a play. On television, in the new social media cliché, God herself is “the writers”. Those of us who love to read and write may read and write as widely as we wish. We read only writers, and if our writing is broadcast into “democratic media” we become exhibitionists to rather than lovers of those outside our circle.

As children many of us were bullied. We did well at school. As adults, most of us like most of everyone lead precarious lives. But those who do not, those who do well, are drawn disproportionately from our ranks.

We constitute a tribe of insular cosmopolitans, incestuous exhibitionists. And from the outside it might seem like we are running things. It is hard not to read what I’m writing as a dog-whistle for Jews, but I think that’s backwards. Jews are a metonym for us, not the other way around. If you know what a metonym is, you are probably one of us. No need to wear a yarmulke, or have Ashkenazi roots. Few of us do.

We people of the word, people of the book, seem to run things not because we have some unified plot to rule. Argument is our sex, we mostly do like it rough. Those who rule are drawn from our ranks because it turns out magic is real and spells are formed of words and symbols. Whether in science, business, or social affairs, a facility with words and symbols imparts capacity to predict, coordinate, organize, and inspire. Most of us do not succeed, in the way our social hierarchies define success, because the word is its own distraction. Reading and writing and praying our selves into existence all day long divert one from the bottom line. But at our margins there are those who are distractible from distraction, within whom the word and practical affairs and ambition do not crowd one another out. These people do very well. We are simultaneously a class of losers and leaders, and that is our reputation, well enough deserved.

But the effect of all of this is we are perceived by others as a ruling class, a ruling caste. On average, we are, but only in the way that the average person in a room that includes Jeff Bezos is a billionaire. It is an irony that the accusations of betrayal that beset us are often framed in terms of cosmopolitanism, when our failures are of insularity. We ourselves are mostly losers, but we set ourselves apart and on the same side of a great divide with the industrialists and mandarins who do in fact organize and coordinate and reap disproportionately the benefits of an increasingly enclosed world. We do this not out of malice, or prejudice, but gentle affinity. People who love words love people who love words. We find one another, and relegate to everyone else the role of anthropological subject, to be examined at a safe distance from behind a page. The putative (much overrated) accuracy of our “social science” is a very far cry from love. Our journalists interview and our novelists invent, with results (of whose “empathy” our reviewers gush) that cannot help but be projection, tinged with grievance and condescension.

We have, amongst ourselves, a “What’s The Matter With Kansas” problem. We love ourselves too much, too indiscriminately. Most of us share material interests more with the lumpenproletariat than we do with the sliver of us that reaps outsize gains. But we share the same academy with the TED celebrities. We join them on panels, at forums, in casual conversations. Our journals and nonprofits, our “activism” and “organizing”, are funded by and often led by them. We read Barack Obama’s new memoir. He is plainly one of us, thoughtful, self-critical, erudite, eloquent. To read is to love. If we are “on the left” we may denounce these beautiful winners, but our loyalties are divided. We bask in reflected honor, we enjoy a warmth, emotional and sometimes material, from an institutional and social closeness that participation in the conversation can bring. They are of us and we take pride sometimes even in the achievements of people whom our politics would argue are crushing us.

It is fashionable, and correctly so, to talk about systemic or structural or institutional racism. Addressing villainous personal bigotry is the easy part. Social problems are, tautologically, social problems, embedded in patterns and practices of behavior, many of which might seem innocuous or even virtuous in isolation.

That people who love words love people who love words seems innocuous or even virtuous. But it is time, I think, to talk about love as systemic or structural or institutional. The social fissure, between people who become coded as “educated professionals” (whatever jobs we do or don’t have) and the great majority who don’t, may derive “naturally” from accidents of affinity. There is no study we can undertake, no book we can write, that will remedy it. But there are institutions that might. We could alter the landscape of material and social life so that we mix more, so that we are not as able or likely to segregate ourselves among ourselves, geographically, occupationally, digitally. Even those of us with overdeveloped insular cortices remain capable of affection beyond ourselves. We look upon ourselves, upon one another, as the civilized people. (We cosmopolitan liberals might resist putting it that way, we’d not want to imply that the people we condescend to are uncivilized.) But when the civilized self-segregate, should they be surprised that among the population they have fled emerges barbarism? We need to love more openly, more promiscuously, more forgivingly. We will fail if we treat this as a matter of personal virtue or obligation. Love is a material and institutional project. Love is downstream from politics.

We have done our part, without intention or malice, to create this world we so lament. It is time for us to do our part to undo it.

May 2021 be a better year for us all.

Repealing Section 230 as antitrust

Section 230 of the Communications Decency Act is a piece of law I always thought that I supported. I think I may be changing my mind.

From Timothy B. Lee:

Eric Goldman, a professor at the Santa Clara University Law School, argues that this rule made the modern Internet possible.

It’s hard to imagine sites like Yelp, Reddit, or Facebook existing in their current form without a law like Section 230. Yelp, for example, is regularly threatened by business owners for allegedly defamatory reviews. Section 230 allows Yelp to basically ignore these threats. Without Section 230, Yelp would need a large staff to conduct legal analysis of potentially defamatory reviews—a cost that could have prevented Yelp from getting off the ground 15 years ago.

I’m a “free speech absolutist” and early internet romantic. Though I devoted my early adulthood to helping develop it, I cannot applaud this “modern internet”. It has its benefits, sure. But of the potential internets that seemed possible in the mid-1990s, the one we’ve selected is pretty dystopian. From a social perspective, it is a cesspool. From a political perspective, it has centralized enormous powers of surveillance and influence in a few unaccountable actors, all in the name of “connectedness” and “decentralization” and “free speech”.

If you believe in free speech, the internet as currently architected offers no good choices. If contemporary internet forums (Twitter, Facebook, TikTok, Yelp, Youtube, Pornhub, whatever) take a laissez faire attitude towards “content”, there emerges tremendous abuse that undermines the virtues of open and inclusive exchange. On the other hand, if you ask status quo forums to address abuse by moderating, you hand corporate monopolies immense power over our collective cognition, power that will never be insulated from the economic and political interests of the platforms.

And you will satisfy no one. There is no way Twitter or Facebook can “solve” the moderation problem. Their AIs are beside the point. We have strong disagreements over what kind of speech should be legitimate in public fora, what the lines are between opinion, which may be productive even if mistaken, and “disinformation”, which should be suppressed for its invidious effects. There is no right answer. Under status quo platforms what will emerge, what has already emerged, is that the standards of “good enough” moderation will be determined in reaction to the outrage of influential political factions. It’s hard to imagine a regime more antithetical to the purposes of free speech, whether it’s Facebook favoring conservative agitprop to appease prominent Republicans or Democrats suppressing “misinformation” in the name of “believe the science”.

Section 230 is the thread that links the problems of abuse and unaccountable power. Section 230 is responsible the persistence of abusive and libelous speech online. At the same time, it is prerequisite to the existence of “platforms” whose enormous scale and reach render them agents of invidious influence.

The conventional justification for our dystopian internet is that network effects imply “natural” economies of scale. Metcalfe’s conjecture argues that the value of a network grows with the square of nodes connected, suggesting one big “platform” of connectedness should be much more worthwhile than many “balkanized” competitors. But there is a ceteris paribus assumption in that thinking. The details of the platform or network are abstracted away, and it is presumed that value derives independently from each connection, that connection quality is constant or at least independent of the form or scale of connectedness. As soon as we begin to think in terms of “moderation”, this reasoning collapses. When we moderate, we are accepting that connections have varying quality or value, that they sometimes they have negative value, that there’s no reason to imagine that the determinants of quality are independent of scale or of details of structure that may be difficult to scale. We are acknowledging that connectedness is a bad shorthand for value, that value instead derives from the particulars of patterns of connections.

From this perspective, Section 230 has created artificial and destructive economies of scale. Eliminating all COVID liability would increase economies of scale to indoor dining, from a commercial perspective. That doesn’t mean the crowded restaurants would be a good thing. High quality moderation is by its nature artisanal. It requires detailed attention to the evolving norms of very particular human communities. Our “atavistic” pre-internet legal infrastructure was sensitive to these particularities in ways that the fanciest of Apocalypticorp’s much touted AIs have yet to match. A pluralistic society requires multiple fora with wildly different community standards. It is a great irony that this phrase, which in law came to represent the heterogeneity of standards, has been adopted by gigantic social media platforms developing one-size-fits-all straitjackets — uniform in theory but capricious in practice — to which most public speech must now conform.

Repealing Section 230, then, would be a blow to incumbent internet platforms. They brag about their AIs. Let’s see if they are up to the task of moderating to standards consistent with their de facto role as publishers, accepting the ordinary liability that role entails. I suspect they are, but it will require erring on the side of caution, rendering their platforms much less attractive for people who want to, say, discuss public affairs rather than share baby pictures. Public affairs controversies will migrate to publishers who take responsibility for the content they produce, which are much more likely to be boutiques. “Social media” would come to look more like the blogosphere of a decade ago than the platform homogeneities that prevail today. (Full disclosure, those were interfluidity‘s glory days, beware my biases.) We’d still have a broad public sphere, but it would be diverse and variegated. The old-school blogosphere relied on Section 230 only for its comments sections. With a repeal of Section 230, something like it might reemerge, but comments would either disappear (start your own blog!) or be held for moderation prior to posting.

Without Section 230, individuals would become more responsible for the curation of their own communication. They could choose to rely on particular aggregators (who would themselves be publishers), or make use of technologies like RSS to design their own feeds. Facebook and Twitter and their ilk, if they survive, would become like network television in the 1980s, struggling to entertain while avoiding controversy or offense. Limitations in scope would become limitations in scale.

There would still be the notion of a common carrier. The boundaries between publisher and common carrier would have to be disputed and defined. I’d expect that ISPs and cloud hosting providers would be required to ensure their customers are identifiable and refrain from content-based favoritism, but would then be treated as common carriers. Social networks would be publishers, and would increasingly fragment and gate themselves in order to become legally cognizable communities whose standards of permissible speech could diverge. Edge cases would be platforms like Substack, Patreon,, or There would probably emerge safe-harbor standards (again having to do with neutrality and identifiability of customers) under which these platforms could be common carriers. Otherwise, they would be publishers and liable for the content they choose to host.

It is often argued that Section 230 is “deregulation”, and deregulation is good for competition because regulation favors incumbents who benefit from barriers to entry and can afford to bear compliance burdens. That theory, like most pronouncements on topics so broad, is sometime true and sometimes false. Regulation does not exist on a scalar spectrum between more and de-. Some forms of regulation favor scale, some disfavor it, and some have effects sufficiently mixed or orthogonal to scale that we’d characterize them as neutral. If you think that digital speech and sociability inevitably devolves to a few giant behemoths bestriding the planet, then repealing Section 230 would indeed be anticompetitive. It will be hard for new entrants to catch up to the running start that Google and Facebook now have in clever AI and moderation bureaucracies. But if you think it is not inevitable that collective cognition and conversation condense to such colossal calamities, then repealing Section 230 would expose incumbents to pro-social standards under which scale becomes (literally) a liability rather than an asset, where upstarts have a competitive advantage that derives from contextually and carefully applied human attention, which does not easily scale.

This is a turnabout for me. As an old-school let-the-Nazis-march-in-Skokie free speech guy, I always thought I favored Section 230. But the Nazis in Skokie would still have been subject to libel law. I think I now favor outright repeal of Section 230, because I favor a much more plural and decentralized public sphere. Is that wrong?


Should a Biden administration unilaterally forgive student debt?

On the one hand, higher education has grown into an ugly mechanism for transmuting the hopes, dreams, and fears of young people into revenue for a sanctimonious, often destructive, industry, via a debt overhang that ruins lives. With legislative gridlock likely in 2021, forgiving Federally held student debt is one of the few ways that a Biden administration could make a direct, material, positive difference in people’s lives. The President could do it with the stroke of a pen.

On the other hand, the potential side effects seem terrible. The Democratic Party is trending towards becoming a party of the educated professional class alone. I view that as a horrible development we should move heaven and earth to reverse. So long as we are (miserably) a two-party system, the complement of a professional-class party is a fascist party. The Republicans we detest are the obverse of what we are allowing ourselves to become. Letting the working class remain in hock — underwater on unforgiven credit card debt, kiting paycheck loans to feed the kid and make the rent — while we unilaterally forgive higher education debt strikes me as an almost cartoonishly perfect wedge issue to polarize the college and noncollege elements of the Democratic electorate. Republicans would ruthlessly demagogue and exploit student loan cancellation to build their new “multiethnic, multiracial, working-class coalition.”

On technocratic rather than political grounds, there are big problems with just forgiving student debt. Come next fall, an unreformed higher education finance system will remain. Kids will sign on the dotted line for new Federal loans, just after the last round has been wiped away as a remedy to the same predatory regime they are joining. Will the obligation embedded in those new loans be legitimate, then? Regardless of where you stand on that ethically, will there be an incentive to max out loans — rather than spend out of family means, or take work to minimize indebtedness — on the theory that new debt might be forgiven in a next round students (and their families) might reasonably predict? Will that end up harming kids even more, if a second round of forgiveness fails to emerge? If a new round of forgiveness does appear, will it end up being perceived as a grift by well-to-do families, many of whom may have suddenly opted to finance college with debt rather than out of savings?

For all of this, I can’t persuade myself to simply oppose unilateral forgiveness of student debt. The last thing Democrats need is, yet again, to find technocratic grounds to persuade themselves not to directly, materially help humans desperate for relief.

My suggestion (which owes everything to a conversation with the remarkable Carlos Mucha) is that Democrats push for what Steve Keen describes as a “modern jubilee“: a flat per-capita transfer to citizens and permanent residents that must be used to pay down debts. Any balance that remains after debts are repaid becomes money recipients can bank. (Mucha suggests this difference be remitted as savings bonds, which could be structured to mature over time in order to prevent a destabilizing spike and then withdrawal of new spending power.)

Ordinarily, this kind of jubilee would be unlikely to get through a Republican, or even closely divided, Senate. But, as we’ve seen, a Biden administration could implement part of it — an effective “pay down” of Federally-held student debt — with the stroke of a pen. My suggestion is that Democrats do that at the same time as they pass, in the House, a bill universalizing the transfers to the rest of us. They should pick a number (Mucha suggests $10K; I might go for $20K), and forgive each student their loans up to that amount. The House bill would specify that the student loan forgiveness constitutes a first tranche of payments under the proposed jubilee. The write-offs would be irreversible; student debt relief would be a fait accompli. The burden would then be on the Senate to pass the bill and resolve the equity issues, by authorizing payments to everyone else (as well as payment of any excess balances owed to student debtors). If noncollege humans get angry, understandably, that college types got bailed out and they didn’t, Mitch McConnell’s would be the number to call. The Democratic coalition would be ostentatiously fighting like hell so they get theirs too. Instead of letting student debt relief become a wedge by which Republicans can even further peel the working class from the Democratic coalition, this would flip the table. Relief to some would be a done deal. Republicans’ choice then would be to complete the work, or to leave desperately felt, easily remediable, inequities unremedied, against a Democratic Party fighting for the working class.

This proposal would not reform the predatory grift that higher education finance has become, alas. But it wouldn’t place existing system in a strange netherworld, either. Student debt would not be specifically delegitimized; it would become just one of many forms of debt per-capita transfers might pay down. The proposal would not create counterproductive incentives to expand indebtedness, student or other, in hopes of profiting from future forgiveness. As a tactic, the proposal represents a useful compromise between barreling headlong towards an “imperial Presidency” or accepting the gridlock of a dysfunctional legislature. The President would not, by the stroke of a pen, try to give himself just what he wants, and then hope for legislative and judicial acquiescence. Instead he would overcome the status quo bias of Congress by upending the status quo in a way that demands legislative action. The comfortable in Congress would be forced to act, if they are to retain their comforts. They can’t win by just pocketing inertia.

What do you think?

Update History:

  • 18-Nov-2020, 3:45 p.m. EST: “…yet again, to find technocratic grounds to persuade themselves not to directly, materially help humans in need of desperate for relief.”; “the same predatory regime they will be are joining.”
  • 27-Dec-2020, 6:35 p.m. EST: “Student debt would not be specifically delegitimized;”

Social democracy or feudalism

Yesterday, I attended a Zoominar featuring Matthew C. Klein and Brad DeLong, which was unsurprisingly excellent. The conversation was inspired by Klein’s book with Michael Pettis, Trade Wars are Class Wars, which I’ve not read yet, but hope to very soon. The conversation skewed sweeping and historical, discussing dual themes, first balance-of-payments wonkery and the challenges associated with managing international financial flows, then elite and government incentives, are better choices possible and why haven’t they been taken? Delong and Klein are more sane and sensible than I tend to be. Both pointed out, in different ways, that managing the swelling waves and yawning canyons that emerge when funds can be lent and spent across borders, and withdrawn at the drop of a hat, presents challenges even for the best placed and most well intentioned governments. Coordination problems rather than conspiracy might explain some of the ugly outcomes (fragility and inequality) these flows have been let to engender. But judging from Klein and Pettis’ title, I think they have more than a little sympathy for my less sane and sensible view that, while not choreographed as conspiracy, our failure to manage these flows and their costs has something to do with the interests of those to whom the costs are paid (incompletely, for sure, but the deadweight losses fall elsewhere).

Very Delong-ianly, the conversation ranged over a sweep of centuries rather than decades, with discussions of the historical transition from overt imperialism and strategies where colonial powers coercively outsourced demand and indebtedness to conquered peripheries, into parallel dynamics that have emerged between (notionally) independent nations today with less explicit recourse to the point of a gun. (This is a tale told in bleedingly broad watercolor brushstrokes, but it places the contemporary United States in an interesting, paradoxical position.) Things change, things stay the same, in international (trade) affairs then also perhaps in social (class) affairs. Trade wars are class wars.

This got me to thinking that if we should recognize an echo of empire in contemporary trade imbalances, should we not also recognize an echo of feudalism in contemporary class dynamics? The class wars embedded in trade wars of the past generation have provoked growing chasms of inequality (within societies inscribed by nation-state borders), along with (oh Gatsby curve) declining mobility and dynamism between classes.

Nothing has grown so stale, I think, as the argument between “capitalism” and “socialism”. It is, in the scheme of things, a quarrel between cousins, a squabble among friends. Adherents of capitalism and socialism both share a deeper enemy, traditional caste-ordered society in which ones station is fixed and determined by birth, and social relations are ordered by customary — but coercively enforced — obligations between classes. Marx, at least in my vulgar Cliff-Notes understanding of his oeuvre, predicts a progression like

Feudalism ⇒ (revolution of the bourgeoisie) ⇒ Capitalism ⇒ (contradictions of capitalism) ⇒ Socialism.

But perhaps it’s more parsimonious to imagine that, in the face of contradictions, society might revert to its most historically stable prior form, rather than inventing a new one. Maybe rather than a progression, we risk a cycle

Feudalism ⇒ (new technological possibility yields a revolutionary bourgeoisie) ⇒ Capitalism ⇒ (contradictions of capitalism yield conflict and backlash) ⇒ Feudalism (at a new technological level, but with uses controlled and further development suppressed).

During the early capitalist period, feudalism is mocked as primitive, a “dark age”. During the late capitalist period, it becomes appealing, a source of order, stability, community. The contradictions of capitalism yield social pathology, and a caste-based communitarianism offers remedy without revolution, appealing to the winners of the capitalist period. Feudalism can derive from experiments in socialism. That was the experience of Soviet communism. Feudalism can also arise from liberal capitalism. That is the precipice on which we stand right now. It is modernity itself that is at stake, this conceit of a continually dynamic society upon which the contours of power are not rigidly and durably inscribed.

Delong asked, when I made an inchoate attempt to express these reflections after the Zoominar, whether I wasn’t echoing Rosa Luxemburg’s “socialism or barbarism”. I wish I was, because that’s a pretty easy choice. One might be optimistic that the humans, like Winston Churchill’s probably apocryphal Americans, will do the right thing after exhausting all the alternatives. The choice between modernity and feudalism is actually a difficult choice, one to which there is not a universally agreed better answer. Lots of conservatisms are tacit calls for feudalism as the practical grounding of an ordered community. If you call it “feudalism” it has few defenders, but by other names it is an ascendant creed. Over the past few years, in the United States, it has become fashionable among modernists — liberal capitalists and left-ish socialists both — to use the term “fascism”. At least in part, this can be understood as a desperate attempt to blunt the appeal of feudalism by tarnishing it with its most garishly malignant strain. But the appeal of feudalism, along with the social forces that are drawing us towards it, is not a messaging problem.

For a while, in the West, we thought we had proved Marx wrong. We had experienced contradictions of capitalism, but rather than succumbing to revolution, we coordinated via democratic states to work towards reasonably just, reasonably stable, still dynamic, hybrids of capitalist forces and socialist solidarity. Within the modernist camp, there are lots of capitalists and lots of socialists who consider a social-democratic hybrid not viable, inherently unstable. After all, if social democracy was sustainable, why did it prove vulnerable to the neoliberal turn that destroyed it? Why have we “retrenched” so far from the great societies we were building?

However, one historically contingent datapoint constitutes pretty thin grounds to discredit a whole class of social experiments — by far the most successful of modernity’s social experiments, while it lasted. Despite tremendous correlative forces that move “the West” together, despite decades of pressure towards a Washington consensus, social democracy survives and thrives in Scandinavia in a form stronger than anything that ever took hold in the United States. Social democracy is certainly no more discredited than capitalism (which has now failed spectacularly at least twice), or socialism (to which some responsibility for the catastrophes of Soviet communism and Maoism must be ascribed). Perhaps there are better capitalisms or better socialisms that we have not tried. And perhaps there are better hybrids, better social democracies. Rather than thinking of social democracy as a point between, a detente or armistice of two implacably opposed systems, maybe it’s best to think of it as a union, a full surface at whose opposing edges sit “pure” capitalisms or socialisms in their many varieties, between which lies a field of points that draw in different ways and degrees from both. That surface is a map of modernity, and its undiscovered best sits more likely in the interior than at an edge.

The choice before us, then, is not capitalism or socialism, not socialism or barbarism, but social democracy or feudalism.

(Or perhaps there are syntheses there, too. Perhaps China is an emerging example of a country neither modern nor feudal, but a hybrid, with social democracy and feudalism together proving adaptive if not quite appealing. As a positive matter, it remains to be seen how durably the contradictions of such a hybrid can be assuaged. As a normative matter, I am ideological. I’d rather explore the full space of social democracy before making any kind of peace with a journey, however partial, towards legitimating permanent hierarchy and caste warily enforced by deployment of coercive violence against internal threats.)

Update History:

  • 15-Nov-2020, 12:35 p.m. EDT: “…maybe it’s best to think of it as a union, a full surface at whose opposing edges sit “pure” communisms capitalisms or socialisms…” Thank you commenter Ivan!

Merge the court

If the Democrats win the Presidency and the Senate, and if they are not inclined to betray the country to plutocratic interests (who would be glad to compensate them for the electoral cost of doing so), they will reform the Federal judiciary in some manner next year.

The most widely discussed reform is to “pack the court” by increasing the number of Supreme Court Justices, creating vacancies a President Biden could fill, to counter or correct Republicans’ “constitutional hardball” with respect to replacements for Antonin Scalia and Ruth Bader Ginsburg. Packing the court is a “tit” that conjures an obvious “tat” — Republicans almost assuredly would expand the size of the court next time they held the Presidency and the Senate, in an escalatory game without obvious end. Unfortunately, I think simple court-expansion is the most likely reform, because it retains and enhances the role of the Supreme Court as an existential polarizing issue during election campaigns, which is great for fundraising and preserving incumbency. These escalations are terrible for the country, but good for a politics industry that includes both parties.

However, if a Biden administration wants to do the right thing for the country, rather than for their industry, here is my proposal.

I. Merge the Federal Appeals Court into Supreme Court

The Federal judiciary is currently a three-level hierarchy, with district courts, appeals (or “circuit”) courts, and the Supreme Court. It should be collapsed into a two-level hierarchy. All of the members of the current appeals court would become Supreme Court justices. That would leave the Supreme Court with a Republican skew, but much more balanced than the current Court’s expected 2 to 1 skew. Presuming Amy Coney Barrett is confirmed (and no further turnover), there would be 104 Republican appointees and 84 Democratic appointees.

Cases would still be heard by nine-member panels, but each panel would be randomly selected from the full body of the Court. “Certiorari” petitions would be voted up or down by a majority vote of the full body.

Ordinary appeals would be heard as they are now, within still extant circuits of the now merged Court. These could then be appealed to the plenary Supreme Court.

II. Require a supermajority to strike down laws as unconstitutional

Marbury v. Madison is a live issue again in American politics. Matt Bruenig and Ryan Cooper argue we should simply cease to respect the prerogative claimed by the judicial branch to strike down laws judges deem inconsistent with the Constitution.

I oppose that approach. I do think we want to preserve the supremacy, in practical terms, of a rights-protecting core of law that can only be overridden by a difficult amendment process. However, there should be a lot more deference to a presumption that the legislative branch would have considered and respected the constitutionality of laws when they act. The judicial branch should only be able to strike down laws as unconstitutional when a strong consensus prevails within this now very broad Supreme Court.

I propose the following procedure: Whenever a panel of nine of the reformed Supreme Court hears a case, it’s first duty is to determine whether there is a constitutional question implicated that might render some or all of the law it is asked to apply unconsititional. If at least three of the panel believe there is such an issue, the justices on both sides (if they are not unanimous) would write opinions unrelated to the specific facts of the case before them, solely on the controversy over constitutionality. The full body of the Court would then vote on the question, and the legislature would only be overridden if three fourths of the justices concur that the law was unconstitutional. Once the constitutionality question has been settled, the case would return to the nine-member panel for adjudication consistent with that determination.

This supermajority deference would not apply to executive orders and actions. When the executive and the judiciary conflict, the legislature must decide the issue. Reforming our dysfunctional legislature is a whole ‘nother ball of wax, but we should start now to counter our drift towards an atrophied Congress and imperial Presidency.

III. Eliminate fixed sizes and any notion of “vacancy”

There should be no fixed size for the new Supreme Court. Justices should continue to serve within “circuits”, and new appointments should be allocated to circuits according to which circuit is most understaffed relative to the population served. If, at a given time, the Third Circuit serves an area with 7% of the population, but only 4% of Supreme Court justices are assigned to that circuit, and no other circuit is even more underrepresented, then the next appointment would go to that circuit.

The only position that could ever become “vacant” would be the Chief Justice of the Supreme Court, who would be nominated and confirmed according to the current process, usually from within the existing court (though it might not be constitutional to require that). The Chief Justice would perform her constitutionally prescribed roles, and would remain the administrative and ceremonial head of the Court, but in the business of deciding cases she would just be primus inter pares, perhaps an unusually respected voice but one accorded no special formal privileges.

IV. Limit the number of appointments per Presidential term to enforce near parity of influence

Congress should fix a limit to the number of Supreme Court appointments that can be made in any four-year Presidential term. This would be a number close to ten, if we wish to preserve approximately the current size of the newly merged judiciary. Each President would be free to make appointments until that limit had been exhausted. The Senate might block an administration’s appointments, of course, preventing the full complement of nominees from being seated. In that case, the next administration would be limited to appointing the number of justices seated by the prior administration, plus one. In other words, the number of appointments a President may make per four year term would be the minimum of the fixed limit of ten and the number seated by the prior administration plus one. This would limit any hope of partisan profit in Senate obstructionism. Blocking low-quality appointments would remain fine and wise, but stalling one President’s appointments would give little advantage to the next President’s party.

None of these ideas are, I think, original. I was delighted, for example, to see that Jamelle Bouie favors a randomized Supreme Court. According to Ryan Doerfler and Samuel Moyn, the idea of a supermajority requirement for declaring a law unconstitutional dates back to the 1920s. I don’t know antecedents to the fixed-appointment-schedule, variably-sized court idea, but I am sure they exist.

The reform proposed here would not be “packing the Court” in any partisan sense. It would in fact preserve a narrow Republican appointment majority all the way through a Biden term. Supermajority judicial review would be a strike for judicial modesty that publics of both parties, rendered fearful by negative partisanship, should support. Random draws mean that some cases would be decided by heavily skewed panels, but the scope of each panel’s discretion would be modest (due to the plenary supermajority required for judicial review), and the temptation to very partisan decision-making would be tempered by the fact that other cases will be decided by panels tilted the other way. Judges of neither party could imagine that an exercise of plain partisan overreach could escape reversal or retaliatory escalation by the other side. With “running the ball down the field” for ones own party a prescription for certain stalemate, hopefully justices’ shared interest in coherent and consistent application of the law would prevail and guide the operation of the merged, reformed Court.

Update History:

  • 21-Oct-2020, 3:30 p.m. EDT: Add clarification to “I. Merge the Federal Appeals Court into Supreme Court” that ordinary appeals still proceed within circuits.
  • 21-Oct-2020, 3:35 p.m. EDT: “…respected the constitutionality of law laws…”

[seminar] Paraparty cooperatives

In August, interfluidity (hi!) hosted a seminar over Zoom, which I enjoyed very much. The main problem was that I talked too %$@&*-ing much. So, this time, I propose a bit of a different experiment.

I propose we try a “random seminar”. I’ve written a little app to draw names from a metaphorical hat, and then show a timer. Rather any kind of presentation, or the jungle hierarchy of who chimes in, or discretionary moderation, I thought it’d be fun to choose a topic, and let who-speaks-when be random. You can decline, if you don’t know what to say or prefer just to listen. (We’d love to hear from you though!) In parallel, there will be the more ordinary, discretionary conversation that Zoom encourages in the comments.

I’ll rig the game by framing a topic, see the overlong diatribe below. But the written piece is it. I won’t present in any fashion. I’ll just run the clock and be a participant.

If you’re interested, we’ll try on Friday, October 16, 2020 at 4 pm Eastern / 1 pm Pacific / 8 pm UTC.

If you participated last time around, or indicated an interest to participate in the comments there, I’ll spam you with an e-mail with the zoom link later this week. Otherwise, please leave a comment to this post and supply your real e-mail (which won’t be published) and I will add you to the list. Thank you!

Ryan Cooper had a great piece on a “paraparty cooperative” in Rhode Island that sat both on the inside and the outside of the Rhode Island Democratic Party, and worked to reform and substantially replace it.

In the context of our current electoral system, which favors two major parties and makes third-party factionalism largely self-defeating, intra-party and para-party politics are the primary means of effecting change. I am one of those people who detests both American political parties, one for being outright terrible, the other for (in my view, rightly or wrongly) often betraying my values and interests while pretending to represent them, both together for constituting an industry of a piece with American corruption. So for me, this fact that under status quo political institutions, the path to change lies through these abysmal organizations rather than around them is a very bitter pill. Altering our electoral system to encourage the formation of more, better parties is one of my core priorities. But in the meantime, we have to operate through these corpses. Solidaristic paraparty organizations are, I think, the way.

“Solidaristic” is a word. Cooper quotes Cynthia Mendes, one of the primary candidates successfully supported by the Rhode Island cooperative: “They do what the political parties used to do for their candidates…show up with volunteers, a shared platform, training.” Unions famously used to look after the material well-interests of their workers, both in their formal role (collective bargaining, advocating for workers in disputes), but also informally, organizing support for members who met with some mischance, and bringing “locals” together socially in ways that reinforced a tangible political identity. Churches, much more within the Republican than the Democratic coalition, also serve this kind of role. Fraternal organization were once important sources of material security, social identity, and political activism. The “Tea Party” movement — whatever you think of them, and yes, fertilized by plutocratic subsidy — blurred the social and the political and effected massive change within Republican politics. Its successor, QAnon, steals a page from the fraternals and then scrawls Zodiac symbols all over it. As the fraternals used wacky rituals, QAnon uses adherence to beliefs mocked and disdained by the broader culture as a mark and measure of belonging. Those beliefs are mistaken and malignant, but QAnon has become a political force within the Republican coalition in part because its practices engender solidarity. (One hopes solidarity is achievable without insularity. Or at least without batshit lunacy.)

I now donate hundreds of dollars I can’t really afford each election cycle via Act Blue. Sometimes I donate to 501(c)(3) organizations that solicit my funds for various causes. Again, no criticism, no apologies, we do what we can in the world as it is. But increasingly I think of both of these paths as neoliberal activism, in a pejorative sense. Distant campaigns and organizations present themselves to me in a competitive marketplace of professionally-organized virtue, “effective altruism” if you will. My role is analogous to that of a consumer, to spend my dollars wisely, get the most virtue done for the buck. The relationship is fundamentally transactional. We are isolated, atomized, coordinating only through the offerings providers choose to make available. I worry that these donations are somewhat analogous to masturbation in the Proud Boys’ ontology, that they represent a kind of leakage of energy that could be put to more fruitful use. Act Blue has raised more than three billion dollars this election cycle, to be mostly spent within the politics industry. What if some of those billions had gone to solidaristic, activist organizations to move the Democratic coalition? 501(c)(3) nonprofits collect hundreds of billions of dollars in donations annually, many of which do go to politically active solidaristic organizations, those churches that profoundly influence politics within the Republican coalition. The existence of GoFundMe is a sad, grifty, paean to a desperate need for solidaristic mutual aid, which might be levered towards political change that renders such improvisations less necessary.

So, I think that, politically, the way forward is solidaristic paraparty organizations that are overtly political within the two party coalitions. Their role would be to force representation of interests and values currently eclipsed by the cadres who dominate both parties, professionals for whom constituents are purses to shake, attached to voting habits that impose constraints they have become adept at loosening. These “paraparty cooperatives” would adopt both “outside” strategies (primarying incumbents who don’t represent them, sometimes challenging bad general election candidates despite the risk of spoiling) and “inside” strategies (securing roles within party committees, think-tanks, etc while maintaining solidaristic connections to discourage them from entirely “going native”).

If this is of interest to you, please participate in the seminar on Friday!