Election Rules And Gridlock In American Politics

This post restates an answer I made at Politics.SE where I am a moderator and participant, with only one minor modification to remove a reference to another answer at the site, adding a link, adding some discussion of the situation in Alaska, making minimal formatting modifications, and quoting a comment to the answer. I quote the question I am answering piecemeal during the answer.

In the course of answering this question, I was surprised to learn just how undivided and not gridlocked the state political process in the United States has become, in stark contrast to the federal political process in the United States.

A false premise

What kind of amendment clause can encourage many parties to represent the voters in the way originally intended by the founding fathers?

The Founding Fathers intended the constitution to result in a no party system within many disorganized majority and minority factions (see, e.g. The Federalist Papers, especially Federalist No. 10 written by James Madison), not a multi-party democracy. They predicted wrong, in part, because the world known to them had very little experience with national level democracies in early 1789 when the U.S. Constitution was drafted.

In particular, they were unaware that political parties arise spontaneously, more or less automatically, whether formally recognized or not by the electoral system, in any governmental system with a group of multiple legislators, even when legislators are appointed, rather than elected. But political parties profoundly change the dynamics of the legislative and electoral process in ways that they didn't anticipate.

Also, to slightly nitpick the title question:

What kind of amendment can oblige multiple political parties, to fix the unintended two-party malfunction of the constitution?

You can't oblige people to form multiple political parties. Some electoral systems favor the creation of multiple political parties, but this only happens if someone decides that it a worthwhile thing to do and creates and runs them. Often at the outset of a new political system, the people who caused the system to come into being are so united from that struggle that multiple political parties aren't established right away.

Securing a multi-party system through electoral reforms

But securing a multi-party political system, which is the international norm for democratic countries, rather than a two party system, in the United States wouldn't be that hard to achieve in terms of the formal constitutional process to do so. It wouldn't even require a constitutional amendment. Politically, however, there would be big barriers to achieving this goal.

Duverger's Law, a law in the social sciences sense, says that first-past-the-post election systems tend to cause dual party systems (there is an exception to this law for geographically segregated political movements, such as nationalist parties for a region like the nationalist parties in Quebec and Scotland). So, all one needs to do in order to end a two party system is to change the election law system. This doesn't require a constitutional amendment.

Reforms possible with a change to federal law without a constitutional amendment

The U.S. Constitution does not direct that members of Congress be elected from single member district plurality election system. This system exists in the U.S. because it is mandated by 2 U.S. Code § 2c, which currently mandates single member districts for U.S. Congressional elections in states with more than one representative in the House.

Historically, before 2 U.S.C. § § 2c was adopted in 1967, multi-member Congressional districts were common in U.S. states, although not by a proportionate representation system. The reason for this reform in 1967 is that the majority in a multi-member district would elect all members of Congress from that multi-member district from the party with a majority in that multi-member district and this approach was used to suppress the black vote in the South, and this legislation reinforced the mandate of the Voting Rights Act of 1964 to prevent the suppression of the black vote in the South.

This statute states, in its entirety, that:

In each State entitled in the Ninety-first Congress or in any subsequent Congress thereafter to more than one Representative under an apportionment made pursuant to the provisions of section 2a(a) of this title, there shall be established by law a number of districts equal to the number of Representatives to which such State is so entitled, and Representatives shall be elected only from districts so established, no district to elect more than one Representative (except that a State which is entitled to more than one Representative and which has in all previous elections elected its Representatives at Large may elect its Representatives at Large to the Ninety-first Congress).

Even with this statutory limitation, some U.S. states (e.g., Maine and Alaska) already elected members of Congress by ranked choice voting. Several other states require a majority vote to elect a member of Congress with a runoff election held if no candidate receives a majority of the vote in the first round (e.g. Louisiana), which like an instant runoff voting system eliminates the spoiler effects associated with third-party candidacies.

There is no reason that you can't have proportional representation in a country with a strong Presidential government like the U.S. with its current constitution. This is what is done in almost every other country with a strong President system countries (e.g. Turkey and Russia).

A conversion to a proportionate representation method of selecting members of Congress in states with more than one member of Congress could be accomplished without a constitutional amendment simply by repealing 2 U.S.C. § 2c and replacing it would a statute that mandated either rank choice voting or majority required to win with a runoff voting in states with a single member of Congress, and mandating proportional representation with a party list system of some kind in states with more than one member of Congress. This would also, simultaneously, end the problem of gerrymandering.

A statute, needless to say, is much easier to enact than a constitutional amendment which requires a two-thirds majority of both houses of Congress (or identical proposals from two-thirds of the U.S. state legislatures, or by constitutional conventions in two-thirds of U.S. states) to propose, and ratification by three-quarters of U.S. states to approve.

The relevant statute would require a majority of the U.S. House, a majority of the U.S. Senate (after overcoming a 60% of the U.S. Senate filibuster or using the nuclear option to abolish the filibuster in this situation with a majority of the U.S. Senate) and the signature of the President (or an override of a Presidential veto by two-thirds of the U.S. House and the U.S. Senate), with no state legislative action before the law in enacted.

The main barrier to this kind of change (which would be even greater to enact a U.S. Constitutional Amendment) is that at least naively, it is not in the interest of either of the two major political parties that control all but a handful of seats in Congress to create a multi-party system that would reduce their control of the process. But reforms of the electoral process contrary to the seeming narrow interests of those currently in office aren't unprecedented, usually because the political party backing the changes sees partisan gain from doing so, even though it technically makes their current voters less powerful.

For example, if the Democrats had a thin majority in both houses of Congress and held the Presidency, and abolished the filibuster in the U.S. Senate with the nuclear option, they might decide that proportional representation was the lesser of two evils to end the disadvantages that they face due to gerrymandering at the state level, and this might cause them to enact a statutory reform like this one.

On the other hand, if Congress simply repealed 2 U.S.C. § 2c, the laboratory of democracy in the states could reopen and some U.S. states with more than one member of Congress, perhaps by citizen's initiative following the model of Maine and Alaska adopting ranked choice voting, could adopt proportional representation, and if this system was popular, other states might follow suit and this could become the national norm, or provoke a national level re-enactment of 2 U.S.C. § 2c that mandated proportional representation.

Proportional representation at a national level, rather than state by state, would require a constitutional amendment. But since the practical difference between a state by state proportional representation system and a national one would be slight (basically just a rounding error scale effect), and because this would also require amendment to the Presidential election contingent election system at the same time, it probably wouldn't be worth the additional effort to attempt to achieve one.

Furthermore, you don't want to have too many seats at state in any proportional representation system because then it becomes possible to elect fringe candidates backed by just a tiny percentage of the vote (less than 0.25% in a single national proportional representation system) which if the majority coalition is thin, gives outsized power to fringe groups. This has historically been a problem in Weimar Germany which dealt with it by adopting a 5% threshold to get any seats post-WWII, in Italy where unstable coalitions of centrists designed to keep the extreme left and the extreme right out of power led to a very fragile democracy after WWII until recently, and in Israel. In contrast, only a handful of states have enough seats to allow a party with less than 5% support in the voting public to gain a legislative seat because they have 20 or fewer members of Congress.

Reforms possible without federal statutory reform or constitutional amendments

Short of this kind of statutory amendment, it would be possible to enact more limited reforms that don't so strongly lead to a two party system without amending 2 U.S.C. § 2c, either a state by state level (possibly with reforms enacted via citizen's initiative to overcome the biases of legislators elected in a two party system in many states where this is possible), or by enacting an additional law mandating certain reforms for the conduct of U.S. House elections from single member districts in addition to 2 U.S.C. § 2c.

Any single member district system inherently distorts the results in a state with more than one member of Congress relative to proportional representation except in the most idealized distribution of voters. But one can (and a number of states, such as Colorado and Ohio have) imposed standards implemented on a non-partisan basis for how Congressional districts are drawn that reduce the impact of partisan gerrymandering relative to the worst case scenario. This doesn't weaken the two party system, however.

But if you mandate, either nationally or in a single state at a time, that states used ranked choice voting, or require the winner to have a majority of the vote to win (with runoff elections if necessary) or have a California style "jungle primary" with the top two finishers in the primary facing off in the final round vote, you can eliminate the spoiler effect of first past the post voting systems.

In a first past the post voting system, a vote for a third-party or independent candidate always helps the candidate from the political party least similar to the third-party or independent candidate that you vote for.

This inherent bias against third-party candidates in first-past-the-post voting systems prevents viable third-party candidates from emerging. But if you have a system that eliminates the spoiler effect, voters are free to support a third-party or independent candidate in a first choice or first round vote, without worrying about helping their least favorite candidate. And, free to do so, third-party candidates would receive more support and stronger candidates would be more comfortable running on third-party tickets, and gradually, a multi-party system would emerge, although probably not one with as many viable political parties as a pure proportional representation system, because any candidate elected would have to receive at least second choice support from a majority of voters in a single Congressional district. Still, it might make three or four political parties, rather than just two, viable and would allow more unaffiliated candidates to be elected.

Any of these systems (but especially "jungle primary" systems) also inherently favor more moderate candidates relative to a system in which each of two major political parties holds a primary election and those two candidates then compete in a general election (which is the status quo in most, but not all, U.S. states). Partisan primaries favor farther left of center candidates in Democratic primaries and farther right of center candidates in Republican primaries, and in the process make it harder for moderate or centerist candidates to make it to the general election.

First-past-the-post elections with closed political primaries in many states are among the multiple reasons that Congress currently has fewer moderates and a larger partisan divide between the two political parties than at any other time in U.S. history since the eve of the U.S. Civil War. This is trend that is likely to continue to become more extreme with West Virginia's U.S. Senator Manchin, the most politically moderate U.S. Senator right now, announcing that he will not seek re-election, and independent U.S. Senator Kyrsten Sinema, from Arizona, who was elected as a Democrat and left the Democratic party in December of 2022 (who is the second modest politically moderate U.S. Senator U.S. right now) is unlikely to be re-elected in 2024.

In 2024, the most moderate U.S. Senator who caucuses with the Democrats will probably be the independent U.S. Senator from Maine Angus King, and the most moderate U.S. Senator on the Republican side will probably be U.S. Senator from Maine Susan Collins, since there are no strong candidates campaigning for U.S. Senate seats in the 2024 election right now who are more politically moderate than either of Maine's Senators, and they are quite far apart. In contrast, for much of recent U.S. history, there has been some overlap in political ideology at the moderate end between the Democratic party and the Republican party in the U.S. Senate and in the U.S. House.

On the other hand, these election laws clearly aren't the only reason for the currently highly divided partisan breakdown in Congress. More states have reformed their election laws incrementally to reduce the tendency of those laws to elect less moderate candidates than had done so a couple of decades ago, but Congress has nonetheless grown more divided on partisan grounds. These institutions have only led to the current status quo with the help of additional factors not so directly related to U.S. election laws (most notably the fact that "realignment" of the two main U.S. political parties has run its course as described below).

Reducing partisan voting with legislative rule reforms

It would also be possible to reform legislative rules in the U.S. House and U.S. Senate respectively, in ways that would reduce the pressure on federal legislators to vote with their political party, weakening party discipline and the hold of the majority party on each house of Congress.

Unlike a parliamentary system, in the strong President system of the United States, you don't structurally need stable partisan majorities in either house of Congress to have a stable, functioning government. As long as there are majorities to pass the necessary appropriations bills every year to keep the government running, and to approve enough Presidential nominees to executive branch and judicial positions to keep the government running, you don't need bills that are passed to have the same partisan majority backing them for every bill.

The U.S. already has relatively weak party discipline compared to parliamentary systems, but it could be weakened further.

We know this from experience.

In the 1970s and 1980s, the United States political party system was in the middle of a transition of the policy positions of the two major political parties (called "party realignment"), which basically traded ideological positions on most issues in a process that began with Presidential candidate Goldwater's "Southern Strategy" for the Republican Party in the 1960s.

This produced a de facto three party system of Northern Democrats (who are similar to today's Democratic party), Republicans (who are similar to today's Republican party), and Southern Democrats, who were conservative on issues of national defense, foreign policy, and social issues, but liberal on economic issues. So, the working majority in Congress on economic issues was made up of Democrats, and the working majority in Congress on national defense, foreign policy, and social issues was made up of Southern Democrats and Republicans. But this lack of a consistent one party majority of every policy subject matter didn't seriously interfere with the operations of the government.

This de facto three party system eventually ended as the two major political parties completed their realignment into one fully liberal Democratic party and one fully conservative Republican party. But if electoral reforms produced a new groundswell of mode moderate legislators in Congress, this could resurface.

To make this work, however, partisanship in the procedural rules of each house of Congress would have to change.

In the U.S. House, the main reforms that would be necessary would be (1) to remove the control of the partisan leadership over the committee assignment system (e.g. by seating members on the committees of their choice by seniority with a proportional partisan balance in each house), and (2) to remove the authority of the House Rules committee to decide on a partisan basis what legislation is taken up on the floor once bills clear committees, for example, by granting every bill that clears a committee a right to a floor vote with significant right to make amendments, in the order adopted, without a supermajority vote to consider urgent legislation out of order. The allocation of U.S. House resources, like office space, would also have to be vested in some non-partisan decision-maker.

In the U.S. Senate, partisan control is already weaker, but rules that strongly empower the minority acting in a partisan fashion, like Senatorial holds and the filibuster would have to be repealed.

Is the system actually not working as intended?

The founding fathers did not foresee that the constitution would foster a two-party political system that is radical, inflexible and deadlocked. There is probably little political will to reform it for many reasons, at the cost of prosperity, security, efficiency and peace.

The U.S. federal government is undoubtedly very prone to deadlock. A majority of representatives in the U.S. House, a large minority of U.S. Senators, the President, or the courts applying constitutional rules that invalidate federal laws, each have de facto veto power over new legislation. And, the power of the two major political parties in the U.S. is equally balanced.

One of the other well known political science laws is that in a two party system (or generalizing it, to a two coalition of parties system), where the parties (or coalitions) are ideologically coherent are prone to continually attempt to tweak the composition of their pre-election coalitions by changing their policies or political tactics, in a way that tends to bring them close to a 50-50 balance of power in the governmental institutions that they most strongly wish to control (the federal government in the U.S. case).

The U.S. federal level political system has been quite evenly balanced between the two major political parties for most of the period since the 1980s (more than four decades) with only brief periods when a single party had "trifecta" control of both houses of Congress and the Presidency, and courts that have been disinclined to thwart their agenda.

In contrast, during the Great Depression and into World War II, the federal government was a dominant party system united under FDR's Democratic Party, and the initially combative Lochner era U.S. Supreme Court eventually backed down when faced with court packing legislation that was likely to pass.

Also, the most recent Congressional elections in 2022 produced outcomes in terms of legislative seats held in the U.S. House that quite closely tracked the overall popular vote for each political party nationwide, with factors that favored Republicans in some places balanced by factors that favored Democrats in other, ultimately balancing out for the nation as a whole. And, the increased partisanship and ideological distance between the political parties seen in Congress mirrors increased partisanship and ideological distance between the political parties in the electorate itself.

Legislation that has bipartisan support (e.g. aid to Israel in the wake of recent events there) can still get passed. But it has been the exception rather than the norm pretty much since the 1980s (before which there was a short period when the Democratic party was dominant at the federal level) that a single party without bipartisan support can pass federal legislation leading to major policy changes. These windows of opportunity have appeared now and then and been utilized by the parties having them. But these windows of opportunity have generally been short-lived and resulted in only moderate and somewhat incremental, rather than decisive and bold reforms.

Arguably, a system that produces gridlock and little federal legislative activity in time periods when the nation is deeply and fairly evenly divided on most political issues, is exactly what the Founders intended when they created a federal political system. When the nation is united, major new national political policies can be enacted, but when the nation is divided, real major policy innovations become much easier to achieve at the state and local level than they are to achieve at the federal level.

The two party system doesn't necessarily have a lot to do with that. Ultimately, exercising political power to change the status quo is about securing legislative majorities to take action, which requires majority support from legislators as measured by the standards of the political system to pass legislation.

In a two party political system, one assembles coalitions that the organizers of the respective political parties hope will be sufficient to secure the majorities necessary to pass legislation before the election into two pre-negotiated coalitions.

In a multi-party political system, coalitions that their member political parties hope will be sufficient to secure the majorities necessary to pass legislation are negotiated after the election.

Lots of countries, especially non-federal "unitary" political systems, make it easier to secure a legislative majority than the U.S. does. But, it isn't manifestly obvious that the task of organizing a multi-party coalition (probably balanced close to 50-50 anyway) with sufficient backing to pass legislation after Congressional elections are held would have an easier time passing legislation than the task of building one of the two major party coalitions before the election to achieve this goal in the status quo.

Also, countries with these unitary systems where the majority threshold needed to pass legislation is lower are often more politically homogeneous than the United States is politically. This lack of political consensus at a national level was a fact that was apparent even back in the time when the Founders set up the current U.S. Constitution, and it shaped how the U.S. Constitution was written.

Federal level political gridlock is ugly and frustrating.

But political gridlock is not the norm in most U.S. states, despite the fact that they also have two party political systems, mostly because most U.S. states aren't so evenly politically divided and secondarily because most U.S. states have fewer barriers to legislating (like the minority veto powers created by U.S. Senate rules and unequal populations for U.S. Senate electoral districts, i.e. U.S. states).

Republicans secured a trifecta in Louisiana after the 2023 general election. Democrats gained control of both houses of the Virginia state legislature in the same election, although Virginia's Governor is still a Republican.

In the wake of the 2023 general election in the U.S., for example, there were 22 Republican trifectas (plus Nebraska where Republicans elected on a non-partisan basis to the unicameral legislature controlled it and the Governor was a Republican), 17 Democratic trifectas (plus the Democratic party controlled District of Columbia), and 10 divided governments where neither major political party had trifecta control. As a result of the 2023 elections, there are fewer divided governments across the United States than at any other point from 1992 to 2022.

In all of those ten states, except Pennsylvania and Alaska, both houses of the state legislature is controlled by the same political party. In theses eight states, one major political party controls the legislature and the other major political party holds the Governorship (with a Governor who is almost invariably a moderate within his or her own political party and who usually holds a line item veto that brings more give and take to partisan budget negotiations). 

Alaska's state legislative houses both have split party control after adopting ranked choice voting, with the state house also having a significant number of members who aren't members of the two major parties. This has produced a political culture which is "moderate and consensus based." A majority of the legislators in both houses of Alaska's state legislature are Republicans (as is Alaska's Governor), but each house has chosen instead to organize itself on a bipartisan basis.

Pennsylvania is the only U.S. state where the legislative process is even close to being as vulnerable to being gridlocked as the federal legislative process. It has a Governor who is a Democrat, Democrats control the state house by one seat out of more than two hundred, and Republicans control the state senate.

Also, legislative process gridlock on particular key issues can be overcome with citizen's initiatives in many U.S. states, an option that is not available at the federal level in the United States.

Federal government political gridlock has not been accompanied by corresponding state level political gridlock in the U.S.

Divided control and gridlock is the exception rather than the norm at the state level in the United States, and there are no states with legislatures elected from districts with unequal populations nor are there any states that give legislative minorities the privileges the receive in the U.S. Senate. So, getting clear majorities to pass legislation is easier at the state level than at the federal level in all but a modest minority of U.S. states.

Given the currently deeply divided state of political preferences in the U.S. at the national level, that has a strong regional geographic character, a system where state level policy reforms are much easier to achieve than federal level policy reforms where gridlock prevails, is arguably a feature and not a bug, of just the kind that the Founders intended.

One Comment

There were a number of comments to this answer, but one in particular deserves to be mentioned as it adds an important factual observation:

"not in the interest of either of the two major political parties" In the simplest case where no new parties get founded and actual voters' votes remain the same, PR would have denied the Republicans a majority in the House in 1996, 1998, 2000, 2004, 2012, and 2016; but there has been no case since the present system was introduced when the Dems won a majority under the present system but would have been denied it under PR. Hence, PR could be argued to be in the Dems' interest. – Daniel Hatton

It Isn't A Good Time To Be A Gazan (Gaza War Part V)

It was the fifth day in a row that the IDF opened an evacuation window, and numbers of people fleeing south have increased each day. The UN said 2,000 had fled south on Sunday, rising to 15,000 on Tuesday. The Israeli government said 50,000 Gazans travelled via the evacuation corridor Wednesday. That number could not be independently verified, but a CNN journalist at the scene said the numbers leaving were larger than on Tuesday.

Israel has been ramping up its offensive inside Gaza, following the October 7 attacks that left 1,400 people in Israel dead.

Israeli Defense Minister Yoav Gallant claimed Tuesday that IDF troops were at the “heart of Gaza City” and targeting Hamas infrastructure and commanders there. . . . .

The IDF has been bombarding Gaza for weeks, saying it hit 14,000 terrorist targets in the densely packed territory. . . . 

“This war left nothing safe – not churches, not mosques or anything. Today, they dropped the leaflet ordering us to leave to the alleged safe area. Now we are beyond this area of Wadi Gaza, and we are still hearing bombardments. There is no safe place in Gaza.”

“We are seven families. All of our houses are gone. Nothing is left. We couldn’t take anything – no clothes, no water, nothing. The way here was very difficult. If something falls, you are not allowed to pick it up. You are not allowed to slow down. Dead bodies everywhere.”

Baraa, a 16-year-old girl, said that she had been walking for a long time.

“It felt like the Nakba [catastrophe] of 2023,” she said, using the Arabic term for the expulsion of Palestinians from their towns during the founding of Israel.

“We walked by people who were ripped to parts, dead bodies. We walked beside tanks. The Israelis called us, and they were asking people to take off their clothes and throw their belongings. Children were very tired because there was no water.”

CNN has asked the IDF about the allegation that evacuees were made to remove clothing and get rid of belongings.

“We came under heavy shelling and had no choice but to leave our area,” Hani Bakhit said. “We ended up using donkey carts because there were no cars, fuel, or drinking water available. Nothing is left for us. They forced us to leave by cutting off all available resources,” he said, referring to Israeli forces.

“People who have nothing to do with the resistance are being bombed and so they are fleeing to the south,” Khader Hamad said. “They are all children, newborns, women.”

From CNN. 

Another report states that based upon satellite images, it appears that about a third of the buildings in Gaza City have been partially or completely destroyed. Israel's top focus, at this point, is destroying the Hamas tunnel network under the city, it claims to have destroyed about 130 tunnels so far, and wiping out Hamas entirely.

This Gaza City epicenter of military action isn't huge. The evacuation zone is probably less than twelve miles from north to south, and maybe six miles from west to east, and only half or a third of that area is the built up part of Gaza City itself. The core of the conflict is an area no larger than a survey township (which is six by six miles) and maybe two-thirds of that area.

Many hundreds of thousands of Palestinians, probably a majority of the people of the Gaza Strip, have fled south of the evacuation line imposed by the Israeli Defense Forces into territory without any place for most of them to stay.

So far, at least seven times as many Palestinians (about 10,500) have been killed by Israeli forces (and friendly fire from Hamas and from lack of adequate medical care, food, water, etc.) as there were Israelis killed in the October 7, 2023 attack out of 2.3 million Gazans by CNN's estimate. A significant share of those who have died are innocent civilians and children, although a disproportionate share are, no doubt, genuine Hamas militants. Just under half of Gazans are children (the median age there is 19 years old), and about 40% of the dead are children. Many of the adults who have died in Gaza are innocent civilians as well.

Only about a thousand people in Gaza have been allowed to leave into Egypt side of its border with Gaza, mostly foreign nationals and dual nationals. Only minimal aid has been provided to Gaza from across the Egyptian border. 

Only a few Hamas hostages have been released or confirmed dead or freed, with an estimated 239 of them still held or unaccounted for. There are no serious publicly known negotiations underway for their release, in part, because the people holding them don't seem to have any real representatives in contact with Israel.

Iranian backed Hezbollah militias in Lebanon and Iranian backed Houthi forces in Yemen, have attempted to harry Israelis, mostly ineffectually, with the Houthis destroying one U.S. drone. No governments in the region but Egypt, however, have overtly done anything to help the Gazans.

The Egyptians have provided only the most minimal and grudging support to the Palestinians with whom they have little in common. 

For example, the Arabic dialect spoken in Gaza is only barely intelligible to someone in Egypt, perhaps like someone with a thick South Asian or Scottish accent trying to talk to someone who only knows how to speak in American English.

The future for Gazans doesn't look bright. Israel has declared war on Hamas which was their exclusive legitimate self-government, and their is no clear sense of whether a new form of self-government, foreign Arab administrators, or Israeli martial law, will come next. 

Gaza City is already in ruins and will be far worse when the Israeli campaign is over. One of Gaza City's main hospitals was bombed accidentally by Hamas. They can't emigrate. They continue to have very limited supplies of food, water, medicine, and fuel with no clear timing for relief in sight. Much of their real estate has been ruined and they have mostly fled without their possessions. They were already poor, on average, now, most people there are absolutely destitute. According to one story:

A total of 106 trucks carrying food, water and medical supplies arrived at the Rafah border crossing between Egypt and Gaza on Wednesday, the Palestine Red Crescent Society said, amid growing calls from international aid agencies for a ceasefire to allow more aid into the besieged enclave. The delivery from the Egyptian Red Crescent did not include desperately needed fuel, which Israel has banned from entering Gaza, claiming Hamas would commandeer supplies for military purposes. It brings the total number of aid trucks into Gaza since October 7 to 756, according to the Palestine Red Crescent — a trickle compared to the roughly 455 trucks the UN says entered daily before the war.

Their Hamas leaders absolutely provoked this response and brought this upon their people, and the absolute rabid stance towards Israel that Hamas has taken makes diplomacy with them useless. And, the Gazan people's support was instrumental in bringing Hamas into power there, although the means by which Hamas has remained in power have not been very democratic (although it isn't as if Hamas was particularly unpopular with grass roots Gazans prior to their October 7 strike).

Even before the strike, Gaza has always been in pretty bad shape. It has the demographics of sub-Saharan Africa, something it shares outside of Africa only with Yemen and Afghanistan. It has been under Israeli rule since the "the Nakba," the Arabic term for the expulsion of Palestinians from their towns during the founding of Israel in the late 1940s.

Other Middle Eastern, West Asian, and North African countries have supported them politically and diplomatically, but don't really want to have anything to do with them.

There is no well defined and widely expected end game, and most Gazans are inclined to expect the worst.

It isn't clear what ordinary Gazans think about all of this or who they blame. 

Certainly, they have no love lost for Israel. 

But, despite its dictatorial approach when in power, I suspect that many Gazans, at least privately, harbor pretty negative feelings towards the Hamas leaders who put them in this mess in the first place by serving as Iranian puppets. But maybe I'm wrong and Gazans have rallied around Hamas instead. It is hard to know.

The Policy Status Quo Is Very Powerful

Democracies strongly preserve status quo policies even when they no longer make sense and are unpopular. The paper below theorizes that policies that were previously the subject to decisive, close political fights stay that way after they are decided because people stop caring about those issues enough to change them after they are resolved.

Policy choices sometimes appear stubbornly persistent, even when they become politically unpopular or economically damaging. This paper offers the first systematic empirical evidence of how persistent policy choices are, defined as whether an electorate’s or legislature’s decisions affect whether a policy is in place decades later. 

I create a new dataset that tracks the historical record of more than 800 state policies that were the subjects of close referendums in U.S. states since 1900. In a regression discontinuity design, I estimate that passing a referendum increases the chance a policy is operative 20, 40, or even 100 years later by over 40 percentage points. 

I collect additional data on U.S. Congressional legislation and international referendums and use existing data on state legislation to document similar policy persistence for a range of institutional environments, cultures, and topics. 

I develop a theoretical model to distinguish between possible causes of persistence and present evidence that persistence arises because policies’ salience declines in the aftermath of referendums. The results indicate that many policies are persistently in place—or not—for reasons unrelated to the electorate’s current preferences.

Zach Freitas-Groff, Persistence in Policy: Evidence from Close Votes (2023).

There is some irony in this result. One of the major reasons for opposition to democracy in the transition from monarchy, and for opposition to direct democracy, in particular, was the fear that this would led to frequent, radical policy changes as the public's mood shifted from election to election. It turns out that they had nothing to be afraid of on that score.

This empirical result also bodes well for the future of abortion rights in the United States now that Dobbs has overturned Roe v. Wade.

Red states like Kansas and Ohio have backed abortion rights in state referendums (Ohio passed a state constitutional right to abortion with almost 57% of the vote yesterday.) And, this academic study shows that those referendum decisions are likely to endure.

Image from the New York Times.

Image from the Washington Post.

Notably, and surprisingly, these massive regional abortion restrictions have not greatly impacted the number of abortions carried out nationally, as people have used abortion pills and travelled to other states to obtain abortions.

Which Occupations Are Prone To Dynasties

In which occupations are current practitioners most likely to have had a parent who practiced the same occupation?

My observation is that dynastic career paths are closely associated with careers that are low paying in early years or for average performers, but are high pay in late years (or provide other unique rewards in late years) or for elite performers only. In these professions exposure to a late career parents or an elite performer parent makes those possibilities seem real enough for children to cling to that dream, while others tend to see the prospects of big rewards from such a career as too speculative to commit to pursuing.

Among particularly dynastic professions fitting this pattern are politics, military officer service, medicine, sports, and the performing arts. Professions where average performers are paid well and early career work does not pay much less than late career work, like IT and nursing, in contrast, are far less dynastic.

Ireland Is Not That Well Off

It is widely known that traditional definitions of gross domestic product exaggerate the economic productivity of Ireland (and other tax shelter countries).

Of course, you may have heard that Ireland’s GDP is massively overstated. And indeed it is . . . if you look at a . . . recent graph of Irish GDP, it soars to ridiculous heights — over $100,000 per person. The country is rich, but it’s not that rich.

A recent article in The Economist explains what’s going on. Ireland’s GDP is overstated for two main reasons. First, and most importantly, Ireland is a famous tax haven — its low corporate income tax rates give multinational companies an incentive to book as much of their profit as possible at their Irish subsidiaries. For European companies, this usually required actually relocating their activities to Ireland, but the U.S. has a strange corporate tax system that allows companies like Google and Apple to engage in various other schemes to book profits in Ireland without actually doing anything substantial in the country, inflating Ireland’s GDP. A second piece of weirdness was aircraft leasing, whose statistical treatment doesn’t make a lot of sense.

From here. 

Better Off African Women Have Fewer Kids

Even in poor countries in Africa where the average woman has many children per lifetime, more affluent "elite women" have fewer children.

Low fertility has been well documented among wealthier and more educated women in more economically developed sub-Saharan African (SSA) countries. Economic theory and historic literature predict that upper class individuals want smaller families regardless of the normative or contraceptive context. Here we ask: do “elite” women in SSA really have similarly low fertility outcomes, regardless of the national fertility and family planning contexts? Or is low fertility found only among elite women in wealthier countries with lower overall fertility? Using DHS data from 27 SSA countries since 2010, we find that TFR is substantially lower among elite than non-elite women throughout the region. Multilevel analysis shows national contextual characteristics are only weakly related to fertility for elite women, in contrast to non-elite women. These findings indicate that the profile of elite women across SSA results in similarly low fertility, regardless of national contexts.

Jamaica Corker, Moussa Zan,Clementine Rossier "Fertility of the Elite in Sub-Saharan Africa: Is Low Fertility Among the Better-off a Phenomenon Throughout the Region?" Population Association of American Conference (April 2019).

Why Do Hunters Need Body Armor?

The bill . . . would disproportionately affect law-abiding citizens who use body armor for lawful purposes such as hunting, [and] outdoor activities[.]

From here. 

U.S. Constitution Still Flawed

One of the lesser known flaws of the U.S. Constitution is the 12th Amendment process for selecting a President if no candidate receives a majority of the electoral vote. In myriad ways set forth in a recent Lawfare article, it is clear that it would be a total disaster.

The Trump Ballot Qualification Trial

The Insurrection Clause And Colorado Trial Explained

Today is the fourth day of five in the Trump ballot qualification trial in Denver, Colorado's state court of general jurisdiction. It is a bench trial mandated by Colorado's state election laws and brought by political action group CREW to determine if former President Trump is ineligible to run for public office as a result of the disqualification set forth in Section 3 of the 14th Amendment to the U.S. Constitution, as a result of his efforts, including but not limited to the January 6, 2021 Capitol Riot, to overturn the 2020 Presidential election that he lost.

Factually, the CREW case leans heavily on and parrots the final report of the United States House Select Committee on the January 6 Attack for its evidentiary case.

The Colorado case is one of many cases challenging Trump's qualification to serve as President under the insurrection clause. 

But, the Colorado ballot access case is important because it is the first of these cases to be tried on the merits (although parallel ballot access litigation in Minnesota is also very advanced).

 

The relevant language from the U.S. Constitution, also known as the Insurrection Clause, states that:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

One purely legal question is whether the clause applies to the office of President of the United States. The court has rightly rejected the dubious argument that the Presidency is not included in the statement that: "No person shall be a . . . elector of President and Vice President, or hold any office, civil or military, under the United States" in Section 3.

Another purely legal question is whether the President is "an officer of the United States" (since former President Trump took the oath of office to support the Constitution of the United States only after he was elected President). The judge has rightly rejected the dubious argument that the President is not an officer of the United States.

It is undisputed that Congress has not removed this disability if it does apply to former President Trump.

The Court has also rejected challenges to the standing of the Petitioners in the case, the ripeness of the challenge, given that Trump hasn't been elected yet, and has rejected the claim that Section 3 of the 14th Amendment may not be enforced in a civil lawsuit today because no authorizing federal legislation to allow that is in force. The judge has concluded that the private cause of action allowed by Colorado's election laws are sufficient.

Numerous historical precedents have held that this determination may be made in a civil lawsuit and does not require a criminal conviction, contrary to Trump's argument that a criminal conviction is required.

So, the core mixed question of fact and law before the Court in its five day evidentiary bench trial is whether Trump has engaged in insurrection or rebellion against the Constitution of the United States, or has given aid or comfort to the enemies the Constitution of the United States.

This requires the Court to both determine whether Trump took the actions that the Petitioners allege that he did, and to determine if the actions that the Court finds that Trump did take amount to "insurrection or rebellion against the Constitution of the United States", or to giving "aid or comfort to the enemies the Constitution of the United States."

The Petitioners note that historically, people have been disqualified from office under the insurrection clause for acts far less weighty than Trump's. 

Trump and the Colorado Republican Party have argued that Socialist Eugene Debs was allowed to run for President while in prison. In particular, "Debs was allowed to run for president despite serving time in prison for sedition for publicly discouraging military recruitment during World War I." Of course, in this 1920 election campaign, Debs was a third-party candidate with little or no chance of winning the race who received just 3.41% of the vote. Debs was sentenced, on September 18, 1918, to ten years in prison and was also disenfranchised for life. His conviction was affirmed by the U.S. Supreme Court in 1919, but his sentence was later commuted by President Harding on December 23, 1921, although Debs was not pardoned, after Congress repealed the statutes under which Debs was convicted earlier that year. It isn't clear to me, however, that his disenfranchisement, or the insurrection clause argument, was ever raised in that case to oppose his eligibility to run for President. 

In contrast, Donald Trump has previously served as President for four years, and is the clear front runner in the 2024 Republican Presidential Primary. Trump remains the far and away front runner in the GOP primary, despite the fact that he is currently facing four felony criminal cases (a criminal business fraud case in New York State, a classified documents case in a Miami, Florida federal court, a D.C. based case arising out of the January 6 riot, and a Georgia state court election interference case in which several co-defendants from his inner circle have already pleaded guilty), having already partially lost a $250 million civil fraud case in New York State on a motion for summary judgment the balance of which is still being tried in a New York State court, and having recently lost a defamation and rape case in which he was found to have sexually assaulted a woman and then lied about not having done it. He also faces other civil lawsuits (e.g. a lawsuit as a co-conspirator in a personal injury case of a law enforcement officer injured in the January 6 riot) and other ballot qualification lawsuits which are likely to be decided before the Presidential election is held in November of 2024, just about a year from now.

A Plausible Worst Case Outcome For Trump

From what I have seen so far, it seems more likely than not that District Court Judge Sarah B. Wallace will find that Trump is disqualified from serving as President under this constitutional provision commonly known as the insurrection clause. The Denver Post editorial board thinks that she should find that Trump is disqualified from running for President on this ground.

It also seems likely that the Colorado Supreme Court is likely to affirm Wallace's ruling, if that is the one she makes, on appeal. Then, the question is whether the U.S. Supreme Court would take up the case.

If the U.S. Supreme Court denies certiorari after the this case has excluded Trump from the ballot (which seems unlikely), or if it does take up the case and affirms a ruling of Judge Wallace that Trump is not qualified to serve as President under the insurrection clause (despite its 6-3 conservative supermajority), then Trump's Presidential race is over. So far, Trump's record in the U.S. Supreme Court has been mixed, despite his role in appointing more than one sitting U.S. Supreme Court justice.

This is because Trump is a party actively litigating this case, and the legal doctrine of collateral estoppel says that the resolution any legal issue finally determined in an actively litigated lawsuit against someone bind the person the ruling was made against in all future civil lawsuits. Collateral estoppel is one sided because it is party driven. It binds Trump when he was a litigant in a previous case, but it does not bind new Plaintiffs in other cases, who weren't litigants in previous cases.

So, if Trump loses the Colorado ballot access case (or another other ballot access case to which he is a party brought by different petitioners like a parallel case in Minnesota), after all appeals in the case are exhausted, he automatically loses every other ballot qualification case that is brought against him in every other U.S. state.

What Happens If Trump Can't Run For President?

If Trump is not on the ballot, the 2024 Republican Presidential Primary would be turned upside down, and the prospects of the Republican candidate emerging from the primary in a general election matchup against incumbent Democrat Joe Biden would have to be reevaluated from scratch.

Trump and Biden have been in a statistical dead heat in 2024 Presidential general election polling for months. But many Republicans might not vote at all if Trump wasn't on the ballot. On the other hand, a Republican candidate other than Trump wouldn't be nearly as tarnished by Trump's bad character and criminal prosecutions with moderate swing voters who dislike Biden but see him as the lesser of two evils.

Given the good substantive economic news and news on a variety of other barometers of national well being, and the evidence that shows that when incumbents run for re-election that the race is usually a referendum on the incumbent's performance, it isn't entirely clear while Biden is polling so very poorly. But that is the reality, and even many Democrats, myself included, don't really love him as the Democratic party's standard bearer, even though he is clearly better than any of the Republican challengers that he might face, and is clearly better than any of the stronger third-party candidates.

More darkly, there is good reason to fear the removing Trump from the ballot could drive far more efforts from the far right to use violent political tactics than they already have so far, after seeing their efforts to gain power through the electoral process thwarted.

The Open Seats In CO-4

Ken Buck (R), the incumbent Congressman in Colorado's 4th Congressional District (roughly speaking, the rural front range), is not running for re-election because he's sick of the lies (see also here) from his own political party about issues like who won the 2020 Presidential election.

This leaves an open seat in 2024, and many people are rushing to join the Republican primary race for the seat.

As much as I'd like to hope for a Democratic pickup of this open seat, it isn't happening. The 4th Congressional District is the safest GOP seat of all eight seats in Colorado.

Instead, the race will be a bellwether for the Colorado Republican party, to see how far right towards MAGA populism it has grown, and how much it remains a party of more traditional conservatives.