voting

Robocalls

If you live in Virginia (or, I suppose in NJ or NY-23) and happen still to have a landline for whatever reason, then I’m sure you have a very special reason to be glad that election season is over for another year(ish). By the final week, Caroline and I were getting 3 or 4 robocalls a day (in our case, mostly urging us to vote for Bob “Women Should Be Barefoot and Pregnant” McDonnell, but YMMV). The blitz of calls prompted my friend Dale Miller (we’re not related so far as I know, but we are both Mill scholars with overlapping interests in political/moral/legal philosophy) to posit that political robocalls ought to be subject to some restrictions. I countered that doing so would likely fail on free speech grounds. We had an interesting set of exchanges that are mostly buried in a comment thread. Seeing as how a bunch of y’all are lawyers, though, and that a bunch more of y’all are political consultants, I thought some of you might want/be able to add in your $0.02.

For starters, some ground rules: We’re going to just stipulate that robocalls are annoying as all hell. And we’re going to bracket the question of whether they work. I suspect that there’s probably pretty good evidence that they do. My evidence for this is basically that really smart campaign managers seem willing to pay for them, and they must have good reasons for doing so. (Although seeing as how some of those same managers pay to put signs in the median of ever single road in the Commonwealth, my faith might be misplaced here.) Also, it’s probably not the smartest thing in the world to start a Con Law discussion with someone who is currently teaching Con Law, especially when you last looked at the literature somewhere around the spring of ’05. That’s really less of a ground rule and more of an observation. But I digress.

Anyway, here’s the gist of the argument thus far.

JM: Political robocalls might well be annoying, but they are clearly a form of political speech. And the Court has consistently ruled in favor of political speech over annoyance. The standard in Cohen v. California would apply here: you might find the speech irritating, but if so, you can always avert your gaze (in this case, by unplugging the phone.) That might be inconvenient, but your being inconvenienced isn’t adequate reason for limiting political speech.

DM: The “avert your gaze” standard in Cohen doesn’t apply. Cohen was on public property. Your phone is in your own private home. Moreover, my voicemail automatically picks up the content of said calls, so simply turning off the phone isn’t even equivalent to turning off my TV to avoid those ads. I’m stuck hearing them either way. Robocalls are closest to direct mail, but even there, I can choose when to pick up my mail, and the high price of mail limits the extent to which I am inconvenienced anyway.

Dale goes on to suggest at least limiting the times during which candidates can call. That doesn’t strike me as terribly unreasonable. Nor does it seem to me as if subjecting political candidates to Do Not Call registries would be Constitutionally problematic. After all, the First Amendment gives me the right to say as I wish, but it doesn’t guarantee me an audience or a particular platform. (Which is too bad, because I think I could publish a really kick-ass political magazine, if only the Constitution would guarantee me some readers. And some advertisers.)

That said, I’m not sure it’s possible to do things like limit numbers of calls. I think that Cohen is probably still the right answer, wrt the annoyance factor. One can, after all, ditch the voicemail feature. And these days, one can communicate by plenty of other methods (e-mail, cellphone, skype, etc.), so it’s not as if one can plausibly argue that turning off the landline would be unduly burdensome.

Then again, I’m a philosopher, not a lawyer. And I’ve rarely found the law lining up with the clearly-articulated, internally-consistent sets of reasons that philosophers tend to offer.

Bad Lectures

So I just got back from a lecture at Cato on James Bennett’s new book, Not Invited to the Party: How the Demopublicans Have Rigged the System and Left Independents Out in the Cold. (And, no, I’m not going to bother linking to the book, for reasons that will become clear in a moment.)

Now probably I should have known better, given the rather silly subtitle. But I did write a chunk of my dissertation on Mill’s arguments for proportional representation, and it’s a system that I still think is inherently superior to our current first-past-the-post, Single Member District system. So I figured that it might be interesting to see what Bennett had to say about the issue. Now I haven’t read the book (it just came out today, and Amazon said it was still unavailable when I checked this morning). But I can tell you that, if the lecture was any indication, there’s little reason to bother.

Let me start by saying that Bennett is probably the worst public speaker I’ve ever heard. And, my friends, I have sat through a 90 minute Habermas lecture. For those of you who haven’t had that pleasure, just imagine trying to sort through the incoherence that passes for post-Kantian German philosophy in a thick German accent by someone who also has a very serious speech impediment. And yet Bennett was actually worse. Every third line or so was an attempt at a (lame) joke, most of which consisted of snarky Heritage/Republican talking points, including the tired old line about Al Gore inventing the Internet. Because that one never gets old, does it? Only, he flubbed his own snark. Every single fucking time.

But worse than Bennett’s terrible delivery is his apparent decision that the principles of social science apply only when they lead you to results that you happen to want. See, Bennett starts out with the observation that the Single Member District generally leads to a two-party system. It’s a principle known as Duverger’s Law. Now bear in mind that James Bennett is a professor of economics. At George Mason University. And he introduced himself as an expert in public choice theory. So obviously when faced with a principle grounded in good public choice analysis, one which shows that a particular structure inherently leads to a particular sort of outcome, his natural conclusion is to alter the structure. Right? Right?

Only, not so much.

Bennett spent all of two sentences on proportional voting. And he says that he opposes it because it could leave people in rural areas (upstate NY was his example) underrepresented while the cityfolk elect all the representatives.

Seriously? Does the man have even the foggiest idea how proportional representation works? I did some back of the envelop math. According to the U.S. Census, New York state had about 19.3 million residents in 2007. About 11 million of those in New York City or on Long Island. Heck, I’ll even give you Erie (home of Buffalo) and Westchester Counties, which gets you up to 12.9 million. That’s about 67 of New York’s population%. New York likewise has 29 Representatives in the House. Which means that if every single urban (and I use that term loosely, as it does include Buffalo, Westchester and Suffolk Counties) voter banded together to choose people from their very own regions, they could, at most, elect 20 people. That leaves 9 representatives to be divided up among the rest of the state. Guess how many of New York State’s 29 Congressional districts currently represent people outside of NYC/Long Island/Westchester/Buffalo

. If you guessed 9, you win the prize.

So I can’t figure out whether Bennett simply doesn’t understand proportional voting, hasn’t bothered to actually do any math, is shockingly stupid, or has some other agenda. I mean, I don’t want to get too deeply into assigning motives to anyone. But Bennett made it pretty clear that while he often dislikes both parties for failing to be sufficiently libertarian, when push comes to shove, his sympathies are with one of the two major parties. And, shockingly enough, it turns out that that same party happens to perform better…where was it again…oh, yeah, in rural areas. Indeed, as it turns out, in our current SMD system, Republicans are vastly overrepresented in the U.S. legislature. Hrm.

So what, then, was Bennett’s solution? Repeal campaign finance reform.

Yes, that’s the solution of the social scientist. Apparently repealing campaign finance reform will also repeal Duverger’s Law. There was no discussion of how exactly that causal mechanism is supposed to work. It probably involves underpants.

Unfortunately, the other members of the panel weren’t much better. There was Theresa Amato, who (a) ran Ralph Nader’s 2000 presidential campaign (thanks again, Ralph) and then (b) ran Ralph Nader’s 2004 campaign anyway. I could maybe even forgive four years of temporary insanity, if only she hadn’t wasted part of my afternoon arguing that the media is responsible for the meme that Nader spoiled the 2000 election for Gore. Now I don’t want to let Gore off the hook for having run a terrible campaign, but still, it strikes me as at least vaguely possible that the fact that Nader campaigned aggressively and won 10,000+ votes in a state that Gore lost by 537 votes might be at least partially responsible for the meme that Nader cost Gore the 2000 election. Just a thought.

Then there was Hans von Spakovsky, whose main contribution to the event was taking exception to Bennett’s claim that members of the FEC tend generally to be partisan hacks. Von Spakovsky assured us that was false. He then went on to tell us that the failures of the electoral system are all due to the machinations of Democrats while good Republicans like him fight their efforts. Later today, von Spakovsky willl be appearing at the National Association of Dramatists to deliver a keynote lecture on irony.

So, to sum: Terrible lecturer. Ignored principles of social science in favor of preferred political hobbyhorse. Even worse commenters. Hours of my life that I can never get back. /rant.