Americans Are Geographically Segregated By Politics

The conclusion isn't new, but it replicates past work and points to a divide even stronger than previously indicated, with a massive and extremely detailed data set.

Nationwide percentiles of partisan exposure by party and race. Courtesy of Nature Human Behaviour.

New research on political behavior finds that most Democratic and Republican voters live in partisan bubbles, with little daily exposure to those who belong to the other party. For instance the typical Democrat has “almost zero interactions” with Republicans in their neighborhood, according to an article by Harvard doctoral student Jacob R. Brown and government Professor Ryan D. Enos published March 8 in the journal Nature Human Behaviour. . . .

Using geolocation data and the exact addresses of all 180 million registered voters in the U.S. as of June 2018, the two were able to precisely map, for the first time, where Democrats and Republicans live in relation to each other in every town, city, and state in the U.S. Then, rather than rely on the usual precinct or data aggregations, they used weighted measures and recorded the distance between voters to show how people are divided by geography and partisanship across the country.

Democrats in large, densely populated cities like New York are the most politically isolated, with 10 percent of them encountering a Republican only one out of 10 times in their neighborhood. Republicans in rural areas are similarly segregated.

Overall, most Democrats and Republicans live in levels of partisan segregation that exceed what scholars of racial segregation consider highly segregated, the study found. . . . 

Their analysis of U.S. Census tract data showed that 98 to 99 percent of Americans live in areas segregated by partisanship. Loving County, Texas, a county of about 200 people along the New Mexico border, is the only tract in the entire U.S. where Democrats and Republicans mix freely, the researchers found.

This social splitting is not the result of an urban/rural divide, where cities attract more Democrats, and Republicans typically favor the country life, Brown and Enos say. Whether in small to mid-size cities, the suburbs or ex-urbs in between, the data showed that Republicans stick close to other Republicans, and Democrats stick close to other Democrats.

“Even within a neighborhood, Democrats and Republicans are separating from each other a little bit,” said Enos. . . .

White Democrats who do not identify as Hispanic had similar levels of exposure to members of the other political party as white Republicans, levels that were greater than Democrats from other racial and ethnic groups, who are the most isolated."

From here.

The article and its abstract are as follows:

Segregation across social groups is an enduring feature of nearly all human societies and is associated with numerous social maladies. In many countries, reports of growing geographic political polarization raise concerns about the stability of democratic governance. 

Here, using advances in spatial data computation, we measure individual partisan segregation by calculating the local residential segregation of every registered voter in the United States, creating a spatially weighted measure for more than 180 million individuals. 

With these data, we present evidence of extensive partisan segregation in the country. A large proportion of voters live with virtually no exposure to voters from the other party in their residential environment. Such high levels of partisan isolation can be found across a range of places and densities and are distinct from racial and ethnic segregation. Moreover, Democrats and Republicans living in the same city, or even the same neighbourhood, are segregated by party.

Brown, J.R., Enos, R.D., "The measurement of partisan sorting for 180 million voters." Nat Hum Behav (March 8, 2021). https://doi.org/10.1038/s41562-021-01066-z

Observations From A Chapter 7 Bankruptcy

I recently analyzed the treatment of claims in the Chapter 7 bankruptcy of a medium sized business called Event Pro Strategies, which was a closely held promotions business that operated in about half a dozen or so states and the District of Columbia. It filed for bankruptcy prior to the pandemic, and the order for the final distribution of funds and closing the bankruptcy estate was recently entered. 

The overall trends in this case are typical of those reported in the literature of closely held business bankruptcies generally. 

There were 161 creditors in the bankruptcy. The tax claims of the District of Columbia are treated as state rather than federal tax claims as they are in bankruptcy, in general. The "other" unsecured general is the claim of a single private individual who extended unsecured financing credit to the firm (who was probably also one of the owners of the company).

I have favored a couple of significant changes in bankruptcy priority that would have had an impact on this case. 

One is to afford trade creditors (who received nothing in this bankruptcy case) a priority above that of general creditors and below that of other priority creditors in bankruptcy. The other is to end the priority of federal and state tax creditors (who received 8% and 12% of their claims respectively), and instead, to treat these creditors as general creditors.

If these reforms had been adopted, the trade creditors in this case would have received about 38% of their claims and tax creditors would have received nothing.

Basically, this is because this would reflect how badly the respective categories of creditors need the money. It also would reflect an adjustment of priorities that is common anyway in Chapter 11 bankruptcy reorganizations.

It also illustrates how inefficient the bankruptcy process is in these kinds of cases, with about 35% of the total funds available for distribution in the case going towards the bankruptcy trustee, the attorneys for the bankruptcy trustee, and their respective out of pocket expenses in connection with the case.

Copyrights Are Too Long

I agree with Tyler Cowen that a copyright term of 28 years from publication, if registered, or the life of the author, whichever is longer, would be far better than the status quo, of the life of the author plus 70 years, for all works, published and unpublished, whether or not registered.

That is a Substack essay from Matt Yglesias, and open source at that. Excerpt, using quotation marks rather than forcing further indents on the segment:

“To me, there’s something attractive about the “constitutional copyright” idea of returning to the 1790 Copyright Act rule. But there’s also something attractive about the idea of an author retaining control over their works during their lifetime. There’s also something to be said for the idea that if you publish something and then get hit by a bus the next day, maybe that happenstance shouldn’t cut your heirs out of the downside. Mashing that all together might leave you with life of the author OR 28 years, whichever is longer.

I think it’s hard to specify the exact right number (Rufus Pollock tries with some fancy math and comes up with 15 to 38 years), but these two points from Hal Varian’s paper on copyright terms seem relevant: 

“Fewer than 11 percent of the copyrights registered between 1883 and 1964 were renewed after 28 years.” 

“Of the 10,027 books published in 1930, only 174 were still in print in 2001.”

It is just super-rare for old works to have large commercial value. But Xing Li, Megan MacGarvie, and Petra Moser show that copyright extensions have a big impact on consumer prices. And I would argue the cultural cost is higher.”

Via Marginal Revolution. 

The Political System Of The United States is Broken: Grappling With Potential Solutions

In a previous post, "The Political System Of The United States is Broken: Where Are We Now", I sketched out the institutional context and how its main pieces interact with each other.

In a subsequent post, "The Political System Of the United States is Broken: Why Is It Breaking Down", I looked at the fundamental changes that our society that have begun to put more strain on our institutions than they can manage while governing our society well.

In this post, I will try to grapple with the somewhat contradictory directions that an understanding of the problems can pull us towards.

Recapping The Problem

The United States federal government has a system that usually takes substantial bipartisan majorities to accomplish anything. It is also systemically biased against Democrats and in favor of Republicans, making it particularly hard for Democrats to secure the majorities they need to make unilateral action at the federal level. The burden we have imposed on the judiciary to get out through periods of gridlock is exceptional, unreasonable, and exposes the imperfections our our somewhat antiquated legal system.

Securing the bipartisan majorities need to make our system work is increasingly different because American society is growing ever increasingly divided at a fundamental grass roots level.

This is driven mostly by the rapidly changing nature of our economy, which has produced increasingly geographically and culturally separated subcultures of our society, one group of subcultures who have mostly come out ahead in these changing times, and another that is suffering as a result of the changes our economy has experienced. 

As these divided people elect politicians to their own respective likings, the politicians don't have enough common ground to jointly govern a nation well in a rapidly changing world that requires decisive action.

State and local government politics is less distorted and less burdened with inertia than the federal government, but they often aren't well run either. 

Some blue state governments do a well intentioned job that approaches the best response that it is possible for them to make to their conditions under the constraints that they face.

Many red state governments run by representatives of a subculture that is at its wits end and has mostly misguided ideas about what to do about it based upon misunderstandings about the sources of their woes, in substance, aren't necessarily outperforming the status quo chained federal government. 

Also, there are limits to what any state and local government official can do when stuck in a bind between pervasive federal government imposed limitations and pressures for action from their constituents that they are hard pressed to resolve.

Centralization v. Federalism v. Conversion

There are at least three basic thrusts of ways to address our national dilemmas.

One is basically a centralized federal "New Deal" approach. The basic problem is that people in red state America are comparative poor, economically insecure, and continuing to fall behind. 

Their own state and local governments don't understand the problem and based upon their own misdiagnosis of the cause of their woes are appealing to laissez-faire economic policies, trying to enforce a certain, heavily sexually oriented sense of moral virtue, putting down others in an effort to keep themselves afloat, distrusting experts, rejecting government, discarding empathy, and trying to put people outside their culture down in an effort to lift themselves up.

An agenda of universal health care, universal access to education, a stronger social safety net, more support for families, and so on, at a national level, could make life dramatically better for red state America. But our system makes it very hard to accomplish those ambitious goals. On one hand, this because their politicians and the people that they represent don't understand that these measures solve the root causes of the distress that their communities have been facing. On the other hand, this is because their politicians instinctively know that support for their agenda depends upon keeping their constituents poor, insecure and desperate. This could be the best solution that we'll never get.

Another approach is federalism. If we can facilitate the process of bringing about change at a state level, where the forces of inertia are not so great, it may be easier to change all or almost all of fifty different governments than one massive rusted over government that is too hard to press into action. Examples of success among early adopter can move other states along, as it has in the case of marijuana legalization. Red state distrust of the federal government can be abated with action taken at a state level red state Americans feel like they have more control over. But if we do that, how to encourage the states to make smart changes in instead of foolish or counterproductive ones? What minimum standards must we still insist upon nationally to have a decent society?

A third-approach is conversion. Focus on winning red state Americans over. Encourage them to move to big cities. Discourage them from adhering to self-destructive ways.

It isn't easy, however, to reconcile these three approaches fruitfully, even though each has its own appeal.

The Political System Of The United States is Broken: Why Is It Breaking Down

In my previous post, "The Political System Of The United States is Broken: Where Are We Now", I sketched out the institutional context and how its main pieces interact with each other.

Our Politicians Have Little Common Ground

Some important things have changed over the last fifty to sixty years or so, some of which have become particular clear and manifest recently, that are getting in the way of the effective functioning of this 231 year old political system.

The biggest factor is the loss of consensus, common ground, shared private and political process norms, shared economic circumstances, shared culture, and shared communities.

Our Politics Are Deeply Divided Between Two Very Distinct Political Macrofactions

Our election system, electing candidates from single member districts, primarily based upon plurality votes in two party general elections, following partisan primaries in one of two major political parties naturally favors the creation and maintenance of a two party system in any one geographic region, and a two coalition or two party system at the national level.

But, for much of our history, the two leading political parties have not both been very ideologically pure.

Now, however, as our society is increasingly divided culturally and economically along a major partisan fault line and other secondary fault lines, after an extended period of realignment in which the Democratic party and the Republican party basically traded places on the politically ideology spectrum, our political parties, in a reflection of an underlying genuine division of the American people have become very ideologically distinct. Yet, voter participation and political awareness is very high, with voter turnout setting new records in 2020.

For the first time in decades there is not a single Democrat in Congress, not even Joe Manchin with an overall more conservative voting record than a single Republican in Congress.

Democrats And Republicans Live In Different Worlds

The clean and clear division of Republicans and Democrats isn't confined to elected officials. The number of Congressional districts that voted for a Republican for Congress and a Democrat for President in 2020, or for a Democrat for Congress and a Republican for President in 2020, is at the lowest level it has been since 1920, a century ago. 

There are clear geographic divisions between the parties. Rather than being spread homogeneously and more or less randomly across the United States, there are lots of counties that are dominantly Democratic and lots of counties that are dominantly Republican and not very many counties where the two political parties are evenly matched and interact a lot in the same geographic places.  Higher population density places tend to be Democratic, while lower population density places tend to be Republican. Democrats and Republicans literally live in different worlds.

The different worlds aren't just physical either. 

Democrats and Republicans get news about the outside world from different sources and don't agree on which sources are authoritative and trustworthy. 

Democrats and Republicans are to a substantial extent racially and ethnically distinct from each other. Often they speak different languages or dialects from each other. They differ greatly in mix of ages. 

The percentage of people who see it as a problem for a child to date or marry someone from another political party is at a record high. They tend to have very different experiences with the institution of marriage and the practice of parenting. They differ somewhat in gender and marital status.

Democrats and Republicans more than ever don't share religious common ground. They have different educational backgrounds and different world views and different cultural identities. They have different values. 

They work in different kinds of jobs that value different kind of conduct. They have different economic realties. They own different kinds of property and have very different levels of wealth.  

They have different relationships to the military and to the police. They have different anxieties and fears. They tend to have different mental and physical health issues. 

The Divisions Weren't Always So Deep

The divides between the worlds and experiences and identities of Democrats and Republicans are more cleanly and deeply different from each other than almost any time in the last hundred years.

The big events of prior eras, like the Great Depression and World War II, the Baby Boom, the post-war economic boom that extended to a huge demand for low and moderately skilled blue collar workers, and the early years of the Cold War, had a practical effect of putting Americans all in the same boat with many shared experiences that provided a basis for finding common ground. 

But slowly but relentlessly since the 1970s or so, the common ground has unraveled and the divides have deepened. Our economy has grown more divided, more unequal, and less shared in prosperity, more education dependent, more ethnically and racially diverse, and has incorporated women in a profound reworking of their role in our society. We have fewer children. We have gone from a nation of predominantly mainline Christians and Jewish communities shoehorned into a community model similar to that of Protestant Christianity, to a nation with a critical mass of non-Christians, an increasingly extremist Christian right, and a demographically collapsing mainline Christian center. Intermediate institutions of civil society from in person religious participation to unions to civic clubs to in person hobbies like bowling leagues to extended family ties have withered in the face of a need to devote more time by more members of the family to work and the need to focus on caring for nuclear family of the very closest extended family ties to former nuclear family members. 

Men without college educations have seen half a century of declining economic fortunes shared at whole community levels as farming has consolidated and the farmers who remain are receiving 40% of their income from government subsidies (in addition to other rural subsidies) and as industry has automated and off shored. Educated elites have captured the lion's share of a half century of economic growth and become much more prosperous in a way that has influenced their world views, values, faith and culture. 

After a brief period driven by pent up demand of high rates of divorce, our society has bifurcated into a liberal economic and socio-economic elite that marries late, has small numbers of children in wedlock and stays married at rates not seen since the Baby Boom. But an economic and socio-economic underclass that has children before marrying if they marry at all, has unstable partner relationships and fragile short lived marriages that is divided between a racial minority subclass that is more liberal and a white Christian subclass that is more conservative and longs to regain their the higher status, simpler times, and comfort of their parents and grandparents. 

Blue county people live comfortable lives and can afford to be unselfish, rational, and think about needs beyond their own. Red county people are living disordered lives of despair in which system that doesn't work for them. They feel that they can trust no one but God, and see a look out for themselves. 

Blue county people live in places that are growing and thriving and trying to figure out how to best manage that growth. Red county people live in places that are stagnating or declining and don't see a way out of their circumstances.

We Can't Turn Back The Clock

We are no longer a nation of securely married middle class Methodists living in suburban tract homes and working at union jobs in big factories with lots of spare time for family and civic activities, and wives at home taking care of many children who all attend public schools, who all speak English and look the same, and have grandparents on a farm. 

There is no possible future for the United States that looks like that, no matter how hard we try to restore it.

A Loss Of Common Ground Is A Crisis In A System That Requires Bipartisan Consensus To Function

In a nutshell, common ground between two Americas has disappeared, which makes governing a nation that requires high levels of bipartisan consensus expressed through their political representatives to function at all, and even more to adapt to change in any significant way, is exceedingly challenging.

If we don't change, dramatically and rapidly, we are headed for failure modes, even in the absence of COVID-19, the economic shock it has caused, climate change, racist police violence, and an immigration system that doesn't work.

The January 6, 2021 storming of the Capitol, and the entire insanity of the Trump Presidency was a wake up call. So way the fact that nearly a third of the Republicans in the House and nearly a fifth of the Republicans in the Senate voted to not recognize the certified electoral votes from the 2020 Presidential election. The craziness of Texas and Mississippi suddenly abandoning all COVID-19 prevention measures this week at a critical moment is another sign. Our cumbersome, inertia ridden 19th century political system won't survive our emerging division and loss of consensus, and Joe Biden's good will nostalgic for the comity of another era when we had more in common won't either.

If We Understand The Problem It Can Help Us Evaluate Possible Solutions

I don't have solutions in this post. But I do think that this post comes close to identifying some of the deeper roots of our woes and that by this rectification of names and improved identification of the problem, it might be possible to identify solutions that could actually work.

The Political System Of The United States is Broken: Where We Are Now

Democrats have been underrepresented relative to their share of the popular vote in electoral votes and in U.S. Senate seats for the last quarter of a century.

Our 18th century constitution, as it has evolved, in addition to being flawed in how it distorts the will of the people, requires great supermajorities to change the status quo. In a rapidly changing world, this is a big problem.

State and local governments are hampered less by inertia and distortion even though they suffer from it as well. States are also heavily constrained, in practice, by limitations imposes by federal law.

The federal courts, charged with interpreting the status quo in a system that is usually gridlocked, and with maintaining the line between the authority of a gridlocked national government and a somewhat less gridlocked assortment of state and local governments that often act imprudently. They are vested with great power as a result. 

The federal courts, in turn, are ultimately at the direction of the U.S. Supreme Courts, whose politicized membership is prone to drifting out of synch with a reasonable vision for the nation due to the crude means by which it is selected, and it has done so.

Presidential Elections

In a fair system, Democrats would have won six of the last seven Presidential elections, instead of four. Democrats need roughly 53% of the two party popular vote to win the electoral college.

The U.S. Senate

From here. 

In a fair system, Democrats would have at least 56 out of 100 seats from the existing 50 states and would also have additional seats from votes cast by Americans living in the District of Columbia and Puerto Rico (in addition to the Vice President's tie breaking vote).

Republicans have been overrepresented in the Senate for considerably more than 30 years.

Also, the share of seats held by the parties in the U.S. Senate doesn't tell the full story. 

Senators representing a quite small proportion of the U.S. population can block legislation with the filibuster:

Consider that the 21 states with the fewest residents, who collectively have enough Senators to filibuster legislation, make up only 11 percent of the total population. Of course, in most cases, it is unlikely that the smallest states would all band together to filibuster because some small states predominantly elect Democratic senators and others predominantly elect Republicans. But the problem is not alleviated by taking into consideration the partisan leanings of states.

For example, the 21 least-populous states currently represented by two Republican senators—enough to sustain a filibuster—represent less than 25 percent of the U.S. population. Democrats currently have two senators in 18 states, and those states represent about 41 percent of the U.S. population.  

If you include five additional Democrats from the least populous states that have one Democratic senator—enough to sustain a filibuster—then they would represent about 46 percent of the population. Also, consider that many voters do not support the winning candidate in their state. The implication is that, at any time, a very small percentage of the population can elect enough senators to block the will of a much larger majority of Americans. 

For most of its history (from the same source), the filibuster has been used almost exclusively to block civil rights legislation:

For almost 50 years after the adoption of the new rules [in 1917], cloture votes to end debate were exceedingly rare. The one issue for which the filibuster proved a major obstacle in the decades that followed was civil rights. From the late 1920s through the 1960s, the filibuster was primarily used by Southern senators to block legislation that would have protected civil rights —anti-lynching bills; bills prohibiting poll taxes; and bills prohibiting discrimination in employment, housing, and voting. These anti-civil rights filibusters were often justified with “inflated rhetoric about an alleged Senate tradition of respecting minority rights and the value of extended debate on issues of great importance.” But belying this rhetoric, conservatives during this period generally refrained from engaging in filibusters on issues other than civil rights.

In the time period from 1975 until November 2013, a 41 Senator minority could prevent the majority from passing legislation in the U.S. Senate with the filibuster (from 1917 until the adoption of the 60 vote rule in 1975, a two-thirds majority was required to end a filibuster).

In November 2013, Senate Democrats led by Harry Reid used the nuclear option to eliminate the three-fifths vote rule on executive branch nominations and federal judicial appointments. 

In April 2017, Senate Republicans led by Mitch McConnell extended the nuclear option to Supreme Court nominations in order to end debate on the nomination of Neil Gorsuch. As of March 2021, a three-fifths majority vote is still required to end debates on legislation.  

While the Democrats in the U.S. Senate have the 50 seats and Vice Presidential tie vote needed to abolish the filibuster (and can pass fiscal budget reconciliation measures by a majority vote), two members of the Democratic caucus, Joe Manchin III of West Virginia and Krysten Sinema of Arizona, have publicly stated that they are unwilling to do so.

The U.S. House

The situation in the U.S. House is currently less egregiously off, although this hasn't been consistently true. 

In the eleven Congressional elections from 1996 to 2016, Republicans were overrepresented in nine of them (very modestly from 1996 to 2004, and significantly from 2010 to 2016), while Democrats were overrepresented twice (in slightly 2006 and by a significant margin in 2008). Democrats were overrepresented in the U.S. House relative to their share of the popular vote for candidates for those seats from 1972-1994.

In the 2018 election, the share of seats in the U.S. House won by the two major parties closely matched matched the share of votes cast, collectively, for candidates from those parties for those seats, nationwide. Most recently in 2020, when Democratic candidates for the U.S. House collectively won 50.8% of the vote and secured 222 seats when 50.8% of the 435 seats in the U.S. House would have been 221 seats.

Incumbency For Members Of Congress

Once someone is elected to federal elective office, the prospects of re-election, empirically, are greatly improved. 

Incumbents start from a status quo of having won a majority of the vote in that post once. They receive free media and have the ability to accomplish things while in office that are popular. There is a strong norm against removing an incumbent of a party in a primary election absent of the most grievous betrayal of the parties ideals or an extremely damaging scandal, in part, because of this incumbency advantage. There is also a strong incentive to minimize scandals among members of your own party, to preserve incumbency advantages.

Also, in part, because of a mutual desire of the political parties to preserve their own elected officials' incumbency advantages, in part, because elected officials are political party leaders with great influence of state level elected officials in their party, and in part, out of mutual back scratching between the parties, the redistricting that is done every ten years by states is frequently calculated to maximize the likelihood the incumbent elected officials are re-elected, rather than drawing districts where there is strong partisan competition. As a result, a quite small proportion of all U.S. House districts are genuinely competitive between the two political parties.

States also favor incumbents in the process because states benefit from re-electing incumbents because Congress allocates much of its power on a seniority basis and long time incumbents by virtue of their seniority have more power to "bring home the bacon" both in terms of federal "pork" spending and in terms of legislation important to people in the state and the member's district.

Campaign finance donors who want influence in Congress strongly favor incumbents when there is one, because money spent supporting a candidate who doesn't win doesn't provide them with much influence, and so this further adds to the incumbency advantage.

Since members of the U.S. House and U.S. Senate are not subject to term terms, and for all of these other reasons, it is not uncommon for members of Congress to end up serving for two or three decades, with some elections that are uncontested or are not contested by the strongest possible candidates whose chances of prevailing in the election are dim no matter what. Death, retirement and scandal are the most common reasons for leaving office, and often, federal legislators end up serving in that capacity for as long, or almost as long, as federal judges who formally have lifetime appointments.

Members of a house of Congress can also be expelled by a two-thirds majority of that house, and this has happened a number of times, a few in connection with the U.S. Civil War, and a few other in cases of extreme scandals, but is it very rare especially in the modern era.

Since incumbents have such a strong electoral advantage in most cases, this also frees these incumbents from a need to be directly responsive to the desired of their constituents except in rare instances where there actions are being closely monitored by large numbers of voters and political influencers and elites who would generally be inclined to support them.

Incumbency For The President

A President is limited to two terms of office, but the incumbent still has the clear advantage when seeking re-election. An incumbent President is basically certain not to face a serious primary challenge so the incumbent President can preserve his resources and can reduce the need of non-incumbents to win support from members of his own party in order to present a moderate face  for a general election campaign. 

Removing a President during his term of office for either disability (requiring a coup by the Vice President and a majority of the President's hand picked cabinet under the 25th Amendment that has never happened), or by impeachment or  threatened impeachment, is virtually unprecedented. With the exception of President Nixon (who resigned under threat of a bipartisan impeachment conviction), the only way that a President has ever been removed from office mid-term is by death. Three Presidents have been impeached four times by majority of the House, but none have been removed from office by the required two-thirds of the Senate (something it has only done with respect to any officials about eight times), requiring many members of the President's political party to betray their partisan loyalty to him. The fact that an incumbent President is replaced by a Vice President of the same political party also reduces the incentive of the other party to try to remove an incumbent President for purely political reasons.

The Federal Legislative Process

Of course, for ordinary legislation to become law, it must be approved by a majority in the U.S. House, an identical version must be approved by a majority in the U.S. Senate after overcoming any filibuster threat, and it must be signed by the President or if the President vetoes a bill, approved by a two-thirds majority of both the House and the Senate to override the veto.

In practice, the members of the President's political party in the House, the Senate, or both, decline to override a Presidential veto in all but the most exceptional circumstances.

Any time that the majority of the House is of a different political party than the majority of the Senate, bipartisan support is necessary to pass legislation. Any time that the President is of a different political party than the House and the Senate, when both are controlled by the same political party, bipartisan support is necessary to pass ordinary legislation. Any time that the party with a majority in the Senate cannot must majority support from its own partisan to abolish the filibuster with the nuclear option and does not have at least sixty seats, bipartisan support is necessary to pass ordinary legislation.

Budget legislation can be passed by bare majorities of both the House and the Senate but must still overcome a Presidential veto and budget legislation cannot include non-budget related riders, as determined by a relatively non-partisan Senate parliamentarian unless the majority party can must a majority to overrule the Senate parliamentarian.

Treaties are approved only by the U.S. Senate, but require a bipartisan two-thirds majority to approve and must be negotiated and proposed by the President.

Nominations of principal executive branch officers and judges must be approved by the Senate, although these nominations can no longer be filibustered.

The practical effect of all of this is that most of the time, it takes a bipartisan majority to pass legislation. Major partisan legislation can be passed only when the President, the House and the Senate are controlled by the same political party, and the party that controls the Senate has a large enough majority to abolish the filibuster.

The strong power of incumbency for all federal elective offices, makes that task of securing a major shift in the political makeup on the federal government more challenging than it might seem naively. 

Furthermore, by design, since only one-third of Senators face re-election every two years, a shift in political sentiment must be sustained for three elections in a row over six years, to fully run its course in terms of the balance of power in the Senate, than the Presidency which faces an intensely contested election by viable candidates every four year, or the House, in which all seats are contested every two years.

This has the practical effect of making the legislative status quo very important with respect to all issues upon which the major political parties differ. This, in turn, makes the federal courts, which usually adjudicates the nature of the status quo, much more important than in other political systems.

It isn't terribly uncommon, in the frequently periods of partisan division, for senior executive branch and judicial posts to remain vacant and filled by "acting" officials in the executive branch for long periods of time due to deadlocks on nominations when control of the Senate and the Presidency are divided on a partisan basis or when the majority has a thin majority that a small number of their members leverage for power.

It likewise isn't terribly uncommon for the government to shut down for fairly short periods of time, because bipartisan consensus cannot be reached on appropriations bills necessary to keep the government running.

It also has the practical effect of exacerbating separation of powers tensions between the President, who has a strong incentive to make policy through executive orders, regulations, foreign policy measures short of treaties, and other actions that don't require Congressional approval, and Congress which has an interests in maintaining its authority derived from the legislation that it passes.

Federal Constitutional Amendments 

It is even harder to pass a constitutional amendment than it is to pass legislation. It must be proposed either by both a two-thirds majority in the House and a two-thirds majority in the Senate (i.e. bipartisan majorities), or by two-thirds of the U.S. states with identical language, or by a two-thirds majority of a constitutional convention convened and organized by a two-thirds majority of the House and the Senate. Once proposed, a constitutional amendment must be ratified by three-quarters of the U.S. states. As a result, formal constitutional amendments after the initial passage of the Bill of Rights in 1791, have required extremely bipartisan and widespread support and have been very rare.

Since the courts, ultimately subject to the U.S. Supreme Court adjudicate the requirements of the U.S. Constitution, and only a constitutional amendment can change the constitutional status quo that the U.S. Supreme Court adopts or permits lower courts to adopt, the power of the U.S. Supreme Court and to a lesser extent the lower courts, to establish an unreviewable status quo is great indeed.

The U.S. Supreme Court

When the U.S. Supreme Court was established in 1789, it has six members.

Later legislation increased its size to seven members in 1807, to nine in 1837, and to ten in 1863. An 1866 act was to have reduced the Court's size from ten members to seven upon its next three vacancies, and two vacancies did occur during this period. However, before a third vacancy occurred, the Judiciary Act of 1869 intervened, restoring the Court's size to nine members, where it has remained since.

The U.S. Supreme Court currently has six conservative justices (three of whom were appointed by President Trump) and three liberal justices. Since they serve for life terms, and their average length of service since 1970 has been 26 years, their ages are relevant.

The six conservatives U.S. Supreme Court justices are Chief Justice John Roberts (age 66, confirmed 78-22), Justice Clarence Thomas (age 72, confirmed 52-48), Justice Justice Samuel Alito (age 70, confirmed 58-42), Justice Neil Gorsuch (age 53 - 54–45 vote, with support from three Democrats, Heidi Heitkamp, Joe Manchin, and Joe Donnelly), Justice Brett Kavanaugh (age 56 - confirmed 50-48), and Justice Amy Coney Barrett (age 49 - confirmed 52-48).

Chief Justice Roberts is the most moderate of the conservative justices and he was the clear median swing vote on most cases prior to the appointment of Justice Barrett to replace the late Justice Ruth Bader Ginsburg. Justices Thomas, Alito and Kavanaugh are the most conservative (and none of them received more than 52 votes to confirm them). Justices Gorsuch and Barrett are viewed as intermediate between these justices within the conservative block on the U.S. Supreme Court, but since neither justice has been on the court for very long, their long term ideological trajectories aren't entirely certain.

The three liberal U.S. Supreme Court justices are Justice Stephen Breyer (age 82, confirmed 87-9), Justice Sonia Sotomayor (age 66, confirmed 68-31), and Justice Elana Kagan (age 60, confirmed 63-37). None of the liberal justices are as far to the left as the three most conservative justices are to the right ideologically.

While the Justices do have clear liberal and conservative ideological leanings, this is more pronounced on some kinds of legal issues than others, and there are far more common ground between the two factions on the U.S. Supreme Court than there is between the major political parties in Congress.

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Some of this ideological imbalance on the court is due to the unpredictable timing of the deaths and retirements of the justices, while some of this is due to politics related to the filibuster.

On April 6, 2017, Senate Republicans invoked the nuclear option to remove the Supreme Court exception created in 2013. This was after Senate Democrats filibustered the nomination of Neil Gorsuch to the Supreme Court of the United States, after the Senate Republicans had previously refused to take up Merrick Garland's nomination by President Obama in 2016.

Of the nine U.S. Supreme Court Justices seated between August 3, 1994 and May 2005, six were confirmed with the support of ninety or more Senators, two were confirmed with at least the support of sixty senators, and only one (Clarence Thomas) was confirmed with the support of fewer than sixty Senators.

Since John Roberts was confirmed, all nominees of Democratic Presidents have received more than 60 confirmation votes, while no nominees of Republican Presidents have received more than 58 votes. 

Federal Court of Appeal And District Court Judges 

The ideological makeup of the federal courts of appeal vary from one federal appellate court circuit to another. This is in large part because Senators whose states are within a circuit have been given special privileges regarding these appointments for most of the time period in which the currently sitting U.S. Court of Appeal judges have been appointed. This privilege has been reduced in potency, but not completely eliminated, in recent years. So, our federal appellate cases have a red state, blue state divide that encourages circuit splits that prompt the U.S. Supreme Court to revolve them or to tolerate lack of uniformity in federal law, rather than minimizing division within the intermediate federal appellate courts that could allow the U.S. Supreme Court to allow key issues to be worked out without its intervention at the level of lower courts.

From here.

At the District Court level, the U.S. Senate has long afforded each of the Senators from a state veto power over nominations to U.S. District Courts in their states. But a series of skirmishes from 2005 to 2020 have turned federal judicial nominations into a scorched earth battlefield.

The maneuver [of filibustering a judicial appointment] was brought to prominence in 2005 when Majority Leader Bill Frist (Republican of Tennessee) threatened its use to end Democratic-led filibusters of judicial nominees submitted by President George W. Bush. In response to this threat, Democrats threatened to shut down the Senate and prevent consideration of all routine and legislative Senate business. The ultimate confrontation was prevented by the Gang of 14, a group of seven Democratic and seven Republican Senators, all of whom agreed to oppose the nuclear option and oppose filibusters of judicial nominees, except in extraordinary circumstances. Several of the blocked nominees were brought to the floor, voted upon and approved as specified in the agreement, and others were dropped and did not come up for a vote, as implied by the agreement. . . .

Prior to November 21, 2013, in the entire history of the nation there had been only 168 cloture motions filed (or reconsidered) with regard to nominations. Nearly half of them (82) had been during the Obama Administration, but those cloture motions were often filed merely to speed things along, rather than in response to any filibuster. In contrast, there were just 38 cloture motions on nominations during the preceding eight years under President George W. Bush. Most of those cloture votes successfully ended debate, and therefore most of those nominees cleared the hurdle. Obama won Senate confirmation for 30 out of 42 federal appeals court nominations, compared with Bush's 35 out of 52.

Regarding Obama's federal district court nominations, the Senate approved 143 out of 173 as of November 2013, compared to George W. Bush's first term 170 of 179, Bill Clinton's first term 170 of 198, and George H.W. Bush's 150 of 195. Filibusters were used on 20 Obama nominations to U.S. District Court positions, but Republicans had allowed confirmation of 19 out of the 20 before the nuclear option was invoked.

Conservative nominees for Appellate Courts that were given a vote through the "Gang of 14" were confirmed almost exclusively along party lines: Priscilla Owen was confirmed 55–43, Janice Rogers Brown was confirmed 56–43, and William Pryor was confirmed 53–45.

Our courts are new full of conservative judges far from the mainstream legal world picked for their activism rather than their wisdom, competence, or adherence to mainstream jurisprudence. 

The State Legislative Process

Every U.S. state except Nebraska has a bicameral state legislature with members elected on a partisan basis and dominated by the two major political parties, the Democrats and the Republicans, with a smaller upper house (often elected to longer terms of office) and a larger lower house (usually elected to two year terms). In both houses all senators and representatives are elected from equal population single member districts that are redrawn every ten years following the federally conducted decennial census. Nebraska has a unicameral state legislature with members elected on a formally non-partisan basis from single member districts (in practice, the members elected strongly lean towards one or the other major political parties and the majority party has been the Republican party for a long time).

State legislatures generally don't have a counterpart to the filibuster or other special privileges of U.S. Senators to prevent legislation or nominations from going forward, and in many state legislatures, senators and representatives are subject to term limits (which both houses of Congress at the federal level lack).

State governors almost always have a veto power that is a counterpart to the federal one, and when it is exercised, a state governor's veto is likewise very rarely successfully overturned by two-thirds majorities of both houses of the state legislature. But it is much more common for a state to have both houses of the legislature and the Governor in the hands of the same party, giving rise to a so called "trifecta" than at the national level. 

There are several reasons this happens: because individual states are more ideologically homogeneous, because incumbency advantages while real are weaker, and because the fact that both the state senate and state house are based upon equal population districts with terms that are more similar in duration to each other reduces the likelihood that there were be big differences in partisan proportions between the two houses of a bicameral legislature.

Historically, the single member districts have been drawn by the legislatures, and this has been done on a partisan basis when both houses are controlled by the same party resulting in significant gerrymandering, favoring one party or the other in both races for the U.S. House and for state legislative races. State legislatures also adopt laws governing election administration in a manner that favors the party in control, and elections are mostly administered in the U.S. by partisan elected officials at both the state and the country level. 

Recently, some states have transferred the redistricting role for some or all districts to bipartisan independent commissions, which tend to make redrawn districts less incumbent friendly and to make districts more competitive and hence more prone to partisan flips at general elections.

The bottom line is that while there are incumbency advantages, they are much weaker at the state and local level in partisan offices than at the federal level. In part, it is also a function of the much more limited media attention that state and local elected officials receive on salient issues. 

As a result, state and local elected officials are strongly influenced by coattails from the top of the ticket races, even though it has no direct connection to their own races, and have weaker incumbency benefits. 

Also, it is rare for state senators or statewide elected officials to have terms of longer than four years, unlike the six year term of U.S. Senators. 

So, as a practical matter, it is much easier for a shift in grassroots political sentiment to lead to a change in control of the state legislative process, or a change in the partisan leanings of local elected officials relatively quickly, than it is to do so at the national level. And, it is more common for shifts in grassroots political sentiment to occur within a single state than it is to do so nationally due to the greater ideological homogeneity of individual states (especially smaller states). 

State Constitutional Amendments

It is also much easier for states to amend their constitutions than for the federal government to do so. 

In states where it is harder to amend the state constitution, constitutional amendments can usually be proposed by a two-thirds majority of each house of the state legislature, and then ratified, either by a majority or mild supermajority vote of the voters at a general election, or by a majority of both houses or supermajority in a successive legislative session.

In many states, it is also possible to amend the state constitution by having citizens present petitions with a requisite number of signatures to the state's secretary of state, which if sufficient, places a proposed constitutional amendment on the ballot for voters to approve or reject, either by a majority vote or a mild supermajority vote.

Less obviously, achieving consensus around a proposed constitutional amendment is also easier because the ideological range of a required ideological majority or two-thirds majority in a single state is often much narrower than for the United States as a whole. While many U.S. states have two competitive political parties that are on relatively comparable footing, many other U.S. states have one dominant political party for a long period of time.

Political Parties In State Politics

Ordinarily, political theory would expect that coalitions of factions in a state with a dominant political party would realign to bring the parties closer to an even balance. But, in our federal system, where federal law has supremacy over state law, both leading political parties which are moderately integrated at the county, state and federal levels, have prioritized the coalitions they need to win the more important Congressional and Presidential majorities over those that would be optimal at the state and county level.

The natural bias political theory predicts to rebalance political party coalitions so that they can sometimes win elected offices at the state level, or in larger jurisdictions like Congressional districts isn't entirely absent, even though federalism mutes it.

In "Red States" where the Republican party is dominant, moderates are more likely to do the bare minimum to meet the litmus tests to be accepted within the Republican party so that they can be elected, and viable Democratic candidates tend to be much more conservative than other Democrats. Joe Manchin, a Democrat elected to the statewide U.S. Senate seat and previous other statewide offices in West Virginia which supported President Trump in 2016 and 2020 by larger margins than in almost any other U.S. state is a prime example of this phenomena.

Likewise, in "Blue States" where the Democratic party is dominant, moderates are more likely to do the bare minimum to meet the litmus tests to be accepted within the Democratic party so that they can be elected, and viable Republican candidates are much more moderate than other Republicans. Mitt Romney, who was the Governor of liberal Massachusetts and adopted the expansive health care program that became the model for the Democratic party's Obamacare legislation is an example of one such Republican.

Also, in states where a candidate is running on the ticket of the non-dominant party, the candidate more often runs for executive branch positions, where there is less blatant partisan legislative authority, rather than for powerful legislative posts. Republicans in blue states tend to run for Governor or Treasurer or District Attorney or Sheriff or Coroner. Democrats in red states tend to do the same thing, in either case, presenting themselves as fairly independent individuals with strong likable personalities.

Some states are adopting elections reforms to reduce the systemic bias in favor of a two party system and to make it easier to elect moderates than the status quo. No true proportional representation systems have made much progress.

State Courts

Every state, like the federal government, has an independent judiciary, but generally speaking, state court judges are somewhat easier to remove from office than federal judges. Many states have mandatory retirement ages for judges, and I believe that a small number have term limits for judges. Most states allow judges to be impeached although this is almost as rare at the state level as it is at the federal level. The power of judicial ethicals officials to remove state court judges from office is usually substantial, while federal judicial ethics officials are mostly toothless. And, many states have a significant share of judges who are elected, are subject to retention elections, or are subject to recall elections. All of these ballot box remedies as a practical matter don't cause many judges to leave office outside of high profile scandals or significant turns in the political tides or very unpopular judicial decisions. But state court judges are removed from office in this fashion much more often than they are impeached, and at least as often as they are removed or persuaded to resign by judicial ethics officials. Some state court judges are nominated by political parties in the electoral process, some are political appointees in a process that mirrors the federal judicial appointment process with a Governor's nomination and a state senate's approval of the nomination, and some undergo a merit based job application process similar to that of other senior civil servants who are not political appointees with a Governor choosing only from three or so finalists presented by the people in the merit based vetting process.

Since the status quo is weaker in the state legislative process, however, there is less of an incentive to act through regulations rather than legislation at the state and local level, and that ability of the legislature to pass new laws more easily to address outstanding concerns that the courts would otherwise have to address, reduces the important of the courts from a policy perspective because their power to adjudicate the nature of the status quo is less important. Further, state courts in the U.S. receive, for a variety of reasons, a much larger share of the politically relatively uncontroversial private law cases for unpaid bills and common accidents, while the federal courts have a much larger share of their dockets devoted to politically sensitive public law cases.

Federalism And The Power Of The Federal Judges

There are tensions that arise, however, between the hard to change, but sometimes dramatic when it does change, federal law, which is supreme over state and local law and for all practical purposes can legislate in almost any area that states can despite a formal political theory to the contrary, and state and local laws which are more dynamic because they are easier to change through legislation and state constitutional amendments. 

These federal law constraints, because they are so pervasive, however, seriously limit the seemingly plenary power of state governments to legislate and enact policies as they see fit. In practice, they can fill in many details but often have little latitude to make sweeping changes without federal cooperation on most politically sensitive issues.

The power to adjudicate what state and local governments can do in light of federal law constraints both statutory and constitutional, likewise gives federal judges considerable political power, as the sometimes hold back, and sometimes encourage state and local level political innovations.

State Fossil Fuel Production Per Capita (In Dollars)

 

One good measure of how potentially beholden a state's politicians are likely to be to the fossil fuel (i.e. coal and oil and natural gas) extraction industry is the dollar value of a state's fossil fuel production per capita. The District of Columbia and other 17 U.S. states don't produce any significant amount of fossil fuels.

Blog Law

Implied license is an important concept in a lot of blog related copyright issues, although this particular one is one I hadn't even considered until now.

The opinion of a recent 11th Circuit case on the topic holds that the fact that your blog has an RSS feed does not mean that you have lost all copyright protections for it. The opinion begins:

This appeal involves a blog operator that sued a content aggregator for copyright infringement after the aggregator copied and published the blog’s content. A jury sided with the blog operator. 

The main issue for us is whether the  district court should have allowed the jury to decide whether the aggregator had an implied license to copy and publish the blog’s content. Although the district court employed a too narrow understanding of an implied license, we conclude that a jury could not have reasonably inferred that the blog impliedly granted the aggregator a license to copy and publish its content. 

The aggregator also argues that the district court erred when it instructed the jury about statutory damages, permitted the jury to consider ineligible works in awarding damages, failed to consult with the Register of Copyrights about the blog operator’s alleged fraud on her office, and denied the aggregator’s motion for judgment as a matter of law based on its defense of fair use. 

Because no reversible error occurred, we affirm.

From an opinion of the U.S. Court of Appeals for the Eleventh Circuit.

How Appealing notes other commentary on the decision:

At his “Technology & Marketing Law Blog,” Eric Goldman had a post titled “A Blog’s RSS Feed May Not Grant an Implied Copyright License — MidlevelU v. Newstex” about the federal district court’s ruling, which the Eleventh Circuit’s decision yesterday affirmed.

And in May 2020, Mitch Stoltz of the Electronic Frontier Foundation had a post titled “EFF to Appeals Court: Reverse Legal Gotchas on Ordinary Internet Activities.”

Reflections On Tax Court

Often, I can't write about the details of what litigation is like because of my obligations to preserve confidentiality as an attorney. But I am not so restrained when I am representing myself.

In my case, I was in U.S. tax court because of a dispute over my 2017 personal tax return. The merits were straightforward.

I was the trustee of a trust. Like a good trustee, I reported the trust's income (which was exceptionally high that year because a lot of assets were sold to make a distribution to beneficiaries, who were people other than me) on Form 1041, sent K-1s to the appropriate people, and all of the taxes due on the trust's income was paid right on time.

The brokerage firm that handled the trust had switched their records over to show that I was the trustee for the first time that year. Unfortunately, somebody in the back office entered my Social Security number, rather than the tax ID number for the trust on the system that generated 1099s for the trust. This probably happened because before I was the trustee, it was a revocable trust for which the Social Security number of the trustee and the tax ID number for the trust were the same. Most likely the "use the trustee's Social Security number" setting in the software wasn't changed because the person doing it didn't realize that its tax classification had changed, which was understandable because the official name of the trust still has the words "revocable trust" in it even though it isn't actually a revocable trust anymore.

As a result, the IRS got 1099s indicating that I had earned the money that was actually earned (and reported to it with tax paid on it) by the trust. The IRS audited me to ask why I didn't report all the income that had been 1099'd to me. I contacted the brokerage about the problem, and they promptly and without much fuss, filed corrections to the previous 1099s with the correct tax ID number after I sent them a W-9 to confirm the trust's tax ID number.

It took a while to figure out that this is what happened based upon the original audit notice that I received from the IRS, but eventually I figured it out and wrote to them explaining what had happened and asking that the case be resolved in the audit stage.

For some reason, my written responses to the IRS audit weren't enough to prevent the IRS for continuing to pursue the matter.  The IRS declared that I owed about $10,000 of taxes that people associated with the trust, of which I was trustee, had already paid. So, I filed a timely protest of the IRS decision by filing a case in Tax Court.

One of the coolest things about Tax Court is that since tax court cases are between you and the United States government, and because the United States government owns the U.S. Postal Service, your tax court filings are considered to be filed on the date that they are postmarked, rather than the date that they are received.

This is a good thing, because despite postmarking my tax court filing by the deadline, it took several weeks for my properly addressed filing to get to the proper office in Washington D.C. because apparently the postal service had trouble finding it or something. And, keep in mind, this was even before Trump backed postal board members appointed Louis DeJoy, who intentionally undermined the post office's operations and effectiveness (in part, because he has a large financial stake in a USPS competitor and, in part, as part of an attempt to interfere with mail in voting in the 2020 election) was appointed. This was apparently allegedly due to changes in how the Tax Court processed its incoming mail due to COVID although I'm skeptical of this claim. This is properly addressed mail to a government agency that gets thousands of letters addressed to it every business day, and presumably the same guy at a particular D.C. local post office for the relevant zip code is in charge of delivering all of these letters to the same place. The full story of that little delay may never be known, but due to the wonders of tax court, I'll never need to know.

By comparison, in another federal court case, not involving Tax Court that I had to litigate for a client, where a timely delivered FedEx filed document didn't arrive at the time guaranteed by FedEx due to a snow storm that grounded the FedEx plane (that could not be filed in time electronically because of delays in processing our application to be recognized on that court's e-filing system), it took an evidentiary hearing in a trial court at which our plea for mercy was rejected, followed by an appeal at which we were prevailed, to have our courier's fault delayed document delivery salvaged so that we could continue our case in which we eventually prevailed. Lawyers appreciate details like that.

There is a deadline to attempt to settle tax court cases (which doesn't have any real penalties associated with it other than causing the case to be set for trial if the case hasn't settled by that date) which came and went because I couldn't reach anybody at the IRS. But eventually, my settlement communication in writing to the relevant government lawyers got through and was reviewed (the delay was due to lack of staffing and deceased office efficiency as a result of COVID).

The way the IRS litigates tax disputes is really unique to the agency's institutional culture and not something I've ever seen in any other context, even though all government lawyers, in theory, are supposed to act similarly.

If the IRS thinks you are wrong, they will pull out all stops to litigate with you all of the way up to the U.S. Supreme Court, even if the amount in dispute is $23. But the moment that you convince the IRS that you are right, even if millions of dollars are at stake and there isn't anything close to a 100% chance that you would prevail in litigation, the IRS will immediately drop its case and concede that you are right, with no whining or attempts to gain concessions from you that you would be willing to make in order to have the case go away in any other kind of litigation.

There have probably been half a dozen or a dozen times that I have written a short one to four page letter to the IRS, sometimes with one or two pages of documentation to back it up, and the IRS has, without further adieu, immediately given up on collecting hundreds of thousands or even millions of dollars of taxes.

Eventually, this is what happened in my case. Once someone in the tax court litigation department reviewed my filings closely, they immediately gave up on all of the $10,000 amount that they were seeking except $25 of taxes and $4 of interest that I owed because of a small arithmetic error in my original 2017 tax return.  The arithmetic error didn't even directly affect the amount of income taxes I owed based upon my taxable income, but it did slightly tweak the amount of a refundable tax credit that I was entitled to as part of a complicated formula.

How did this happen? 

They literally just called me out of the blue in the middle of the day one day that didn't have any significance relative to my tax court case, and said something to the effect of "we looked at what you filed and it looks to us like you are correct except for this small arithmetic error and would you be willing to settle your tax court case by paying $29 of additional taxes without any penalties." I said  something to the effect of "yes, I agree that my arithmetic was wrong and I will pay the additional $29 as long as the rest of the claim for additional taxes is withdrawn."

As it happens, actually going from that oral agreement to getting the actual paperwork signed took a while.

First, the software system that turns the adjustments to my 2017 tax return that we agreed upon was down when I got the call (the federal employee I was talking to in Utah, by the way, is working about two days a week in the office and the rest of the time from home) into forms that can be approved, so that took a few days until that was fixed. Otherwise it would have taken forever to do by hand and would have been much more likely to contain an error. My one little addition error tweaked about seven page of tax forms.

Then, the IRS emailed me the forms to print out and sign, but they were encrypted and the passwords that I wrote down and then confirmed in a couple of subsequent phone calls just would not work for some reason. After a few tries, the problem was fixed and the files were opened, but a small but critical typo (the IRS attorney's registration number in tax court was mangled, or something like that), was discovered, and so that was fixed. The IRS sent the corrected forms to me via email and we had more password encrypted filed opening problems. Eventually, with my permission and because the forms in question didn't even have my Social Security number on them, the IRS sent me a non-password protected version which I printed out.

The process of getting the forms agreeing to the tax court settlement in writing once the forms were delivered to me via email was classic red tape with a modern overlay. 

We needed to print of the forms, single sided, and sign them with blue ink, in triplicate. And, then, once we did that, we needed to scan and email them to the IRS so it could start processing them, and then we had to send the physical paper to them via certified mail to the IRS, flagged for the person handling our case on the envelope. 

This is apparently because Tax Court needs three wet blue ink signed copies of every stipulation on dead tree paper to accept a settlement of a case. 

Now, that's done, and when the Tax Court rubber stamps our stipulation if a few days or weeks, I'll send the IRS a check for $29 and this tax dispute will be over and done with.

If we had gone to a hearing in Tax Court, due to COVID, it would have been virtual, and one had been scheduled for June, with some complicated pre-trial procedures so that all of our documentation (and all of the documentation that the IRS would present) would be in everyone's hands before the virtual hearing was held, along with pre-trial briefing and a list of witnesses and what they would be testifying about. 

Normally, the Tax Court holds in person hearings, but you, as a taxpayer can choose what location you want the hearing to be held at of many available court houses, so the hearing in my case would have been held before a Tax Court judge riding circuit so to speak (there is one national Tax Court in the United States with its headquarters in the District of Columbia), rather than having to travel to its main courthouse in the District of Columbia.

Also, while I didn't end up going to a hearing in this case, in Tax Court, unlike almost every other judicial forum, it is commonplace for the IRS and the taxpayer to stipulate to all or almost all of the facts in the case (and to the authenticity and admissibility of almost all documents in the case), leaving at most one or two disputed factual issues to be resolved in the Tax Court hearing with evidence. This is what usually happens even in very complicated cases involving hundreds of millions of dollars of disputed tax liabilities involving multiple different issues.

Rather insisting that the taxpayer meets the standards of the rules of evidence to prove the factual basis of the taxpayer's case as government lawyers in any other case would, and without piercingly questioning the credibility of witnesses, the IRS routinely accepts that the documents submitted to the tax court by taxpayers and testimony of the witnesses who are slated to testify in tax court, are truthful and that witnesses will testify in the manner anticipated by the taxpayer, unless there is very good reason to think otherwise and that truthfulness or authenticity is the core issue on the merits in the case, which is rare.

Mostly, Tax Court hearings are more like oral arguments on dueling motions for summary judgment, with only very brief and narrow instances of taking evidence to resolve disputed questions of fact. And, when there are evidentiary disputes, they tend to focus on whether the testimony and documents offered into evidence without objection are sufficient to prove the case, rather than on the authenticity or veracity of what is in the documents and the veracity of what the witnesses stated in their testimony. 

The system could be better. Hard copy signatures in blue ink on physical paper in triplicate is so 19th century in a 21st century world, especially when the IRS has a scanned copy in hand a week or two before it has the paper copies. The document password system for the IRS (and its IT systems in general) could use some improvements. And, it would have been better if there had been some way to get someone at the IRS to hear out my explanation and consider it on the merits sooner in the process. But, in the end, the job got done and it was a happy ending that took time, but very little money for me (since as I lawyer who does tax law, I didn't need to hire any professionals to help me).