Procedural Fuckery

Quirks of our "Democracy."

SUMMARY: We love to promote our democratic principles. We love to spread them across the globe as well. But there are three procedural quirks in our system that are so laughably undemocratic it’s surreal. The Electoral College, filibuster and gerrymandering have been such integral parts of our system for so long that we barely recognize them for the travesties they are. Right now, Democrats have tenuous control over the system and the ability to change the course of democracy for decades to come. So why don’t they? Today’s episode digs into the racist history of these three significant aspects of our republic, the Republicans who will do anything to protect them, and the feckless Democrats who maintain the status quo. 

LISTEN TO THE FULL EPISODE HERE


Hey Subf*ckers. Last week was appropriately heavy because we talked about the great tragedy of our occupations abroad and what happens when we leave. We got some really strong feedback on the show because obviously you feel the same level of shame that we do in our behavior. The larger point we made was about the budget and why it would just be assumed by both parties that it can and should continue at the same level it had when we were litigating two massive wars in the Middle East. 

So while we’re talking budget, which you know I love, it brought me back to what needs to happen if we’re going to restore some sanity into our political process. That’s where we left off at the end of the episode. 

We love spreading democracy. We’ve covered the planet in our democracy like a hotel bedspread under a blacklight. And while we’re spreading it all over the world, here at home we have some arcane procedural nonsense responsible for some pretty undemocratic outcomes. 

One is an original sin by design from our founding and the other two were developed along the way to protect the interests of racist assholes. The Electoral College, filibuster and gerrymandering are three significant characteristics of our democracy and totally unique to us. Are these examples of procedural fuckery design flaws or integral parts of the whole that maintain the balance of power in the republic?


Electoral College

Let’s start by talking about the concept of a representative democracy. The grand idea behind our republic is that the people would have a say in elections, we would have a balance of power that prevented any one branch of government from having too much power, and that our representation would be periodic and not subject to the tyranny of monarchical rule. 

Specifically, I want to start with our original sin, the Electoral College, because there have been five presidents in our little history who actually lost the popular vote. John Quincy Adams, Rutherford B. Hayes, Benjamin Harrison, George W. Bush and Donald Trump. The first two were mired in conflict to a far greater extent than anything we’ve seen since and were ultimately decided by Congress. 

Andrew Jackson, who ostensibly had the election stolen from him, would exact his revenge at the polls and win by a huge margin the next time around. Later, Benjamin Harrison would lose to Grover Cleveland, which led to the only time a sitting president was defeated and then came back to win again. But those were different times and our democratic process matured greatly. 

More recently, the losses of Al Gore and Hillary Clinton stung more because we theoretically had a far more representative system with voting rights extended to all and not just white dudes with land. So in these cases, we truly had a popular vote going one way and our archaic system of the Electoral College going against the will of the people. 

Depending upon who winds up on the losing end of the Electoral College - in both modern cases the Democrats - the arguments for abolishing it are pretty loud and consistent. The first part of the argument is that it’s not fair. 

It’s not fair because the majority isn’t supposed to answer to the minority. It’s exactly the opposite of what democracy should look like. And the second part is usually that this is not what the founders intended. Let’s take a look at the second part first, however, because it illustrates why this is more fraught than one might imagine. 

Bear with me on this next part, Unf*ckers because we need to go back a bit and hear directly from the founders themselves. 

I Hear Dead People

I’m going to lay out a couple of passages from The Federalist Papers as I’ve done before, because these papers are really the crib notes to our republic; the closest thing we have to truly ascertaining the intent of the founders. And the reason I like to quote from them directly is because the final product is often misinterpreted or twisted to fit a particular dogma - done by both sides of the aisle mind you. So why not just go to the source?

I’m quoting from Madison’s paper Number 39 specifically, as Madison did much of the heavy lifting on separation of powers. First, let’s talk about Congress. In this section, Madison writes:

“The Senate derives its appointment indirectly from the people. The president is indirectly derived from the choice of the people, according to the example in most of the States.” 

The name “Electoral College” didn’t come about for many years after our founding. But the idea that presidential power is “indirectly derived from the choice of the people” is the important part of this. Hold on that as we go through a longer passage later in the 39th paper:

“The next relation is, to the sources from which the ordinary powers of government are to be derived. The House of Representatives will derive its powers from the people of America; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular State. So far the government is NATIONAL, not FEDERAL. The Senate, on the other hand, will derive its powers from the States, as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress. So far the government is FEDERAL, not NATIONAL. The executive power will be derived from a very compound source. The immediate election of the President is to be made by the States in their political characters. The votes allotted to them are in a compound ratio, which considers them partly as distinct and coequal societies, partly as unequal members of the same society. The eventual election, again, is to be made by that branch of the legislature which consists of the national representatives; but in this particular act they are to be thrown into the form of individual delegations, from so many distinct and coequal bodies politic. From this aspect of the government it appears to be of a mixed character, presenting at least as many FEDERAL as NATIONAL features.”

We spend a lot of time in the debate over the Electoral College talking about fairness. But you’ll notice the absence of this concept in Madison’s words. That’s because the founders were trying to assuage the southern states who understood that the north was going to someday win the population battle and that their interests would be diminished as time went on. Of course, there was the major battle over how exactly to count the population since enslaved people made up such a large percentage of the southern population at the time. 

The words I want to focus on here to settle the idea of fairness is how Madison states, “the executive power will be derived from a very compound source.” So this was intentional. The argument that what would be known as the Electoral College is somehow against the wishes of the founders doesn’t hold if you want to be an originalist and use their exact words. In other words, it was indeed deliberate in order to appease the growing concern of southern states that they would be edged out of both the representative house and the executive branch. 

But inherent in this argument is also the counterpoint and the answer. The Senate, as was clearly stated by the founders, was always intended to be the ultimate cooling power in our legislative branch. In concept and in practice, the Senate possessed enough legislative power to cause greater deliberation and compromise in any pertinent legislation that affected the nation and impacted the states. In fact, Madison didn’t get the one thing that was most important to him during the constitutional convention, which was the ability of the federal government to veto any state legislation, which would have placed far too much power in the hands of the federalists. 

So if the framework of a “compound source” to determine presidential elections was done to appease southern slave states, then I think it’s entirely reasonable to argue on grounds of fairness that this be eliminated in a society that now exists without the institution of slavery. 

Moreover, the protections that individual states required still exist within the powers of the Senate. Ultimately, you can still use the founders intent behind the words to argue that this compound source concept is no longer valid because the very thing they were trying to protect no longer exists. And that the protection of states beyond slavery is very much intact due to the existence of the Senate. 

In terms of what to do with the Electoral College, there are three camps. One is to leave it the fuck alone. That’s largely a Republican stance these days because of population trends and, of course, the outcome of Bush v. Gore and Trump v. Clinton. The other two camps are to either reform the Electoral College or abolish it altogether. Both require constitutional amendments yet something called the National Popular Vote Interstate Compact provides another way, and would bypass the Electoral College system altogether - an agreement between states to award all their electors to whomever wins the popular vote nationally.  

The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states and the District of Columbia. It has been enacted into law by 15 states and DC with 195 electoral votes. It needs an additional 75 electoral votes to go into effect. 

It’s interesting to note that over the history of our country, there have been at least 700 proposed amendments to modify or abolish the Electoral College - more than any other subject of Constitutional reform. 

We’ll return to the Electoral College at the end of the episode to talk through the validity of abolishing or reforming the system. Next, let’s look at more procedural fuckery, specifically creepy old uncle Gerry. 


Gerrymandering

In 1812 Massachusetts, Governor Elbridge Gerry created a redistricting plan in his state that included a district that looked like a salamander. Gerry made a salamander district and that’s how the term gerrymander was born. Very similar to the term earmark, which comes from the old story of a fella named Mark who cut off his own ear for some government toilet paper. Or the term swing state, which earned the nickname after a drunken night of spouse swapping in Ohio.  

Well, the official definition of gerrymandering is, “the intentional manipulation of district boundaries to discriminate against a group of voters on the basis of their political views or race.” (And the Elbridge Gerry story is true, by the way. The others, not so much.)  

So every ten years, state legislatures or independent panels - depending upon how the state has determined the process - take the data from the most recent census and draw new district maps. The more fucked up the shape of the district the more it has been “gerrymandered.” The process has been abused by both sides, so don’t let anyone tell you it hasn’t. Of course, the most blatant and extreme examples of it have typically been done by Republicans. And Republicans have gerrymandered twice as many districts as Democrats. Sorry, it’s just true. 

There have been several examples over the years where districts were drawn to deliberately squeeze out, or squeeze in voters based upon race. In fact, in 2010, courts found that maps in four different states were improperly drawn by race and party affiliation and wound up redrawing them to be more accurate and representative. Dig this, had they not done so the House would actually be in Republican control right now. 

Today it’s getting even crazier because big data is entering the picture so these maps are getting ever more specific instead of broad and representative. The court battles have already begun and because the census data was late due to the pandemic, the pressure is on to get this done. Adding even more pressure to the Democrats is the Supreme Court’s 2019 ruling that gerrymandering cannot actually be challenged in federal court. Another example of how presidential elections have consequences and the composition of the Supreme Court matters. (As if we needed the reminder.)  

If Democrats are unable to properly reapportion districts to be more representative, then they’ll continue to struggle for the next decade in state legislatures and in the House of Representatives. There are a couple of more effective ways to fix this stupid, partisan and too often racist process that was never intended to be this broken. 

One is an effort put forward by a handful of Congress People in the 116th Congress called Ranked Choice Voting. It’s possible that many Unf*ckers have heard of it because it has been gaining traction over the past several years in municipal and lower stakes elections. Even by me in New York City we just came through our ranked choice voting experiment in the Democratic primary. It was actually a little fucked up at first, but they eventually got it down and it worked the way it was supposed to. 

And how is it supposed to work, you might ask? 

Basically, it’s math. Whether it’s a one v. one or multiple candidate election, Ranked Choice Voting ensures that every vote counts. Essentially voters fill out their first, second, third - however many options there are - choices and once the top candidates cross a particular threshold, the bottom votes are thrown out and their second choices are awarded to the top and so on.

If ranked choice were introduced federally as law it would essentially do away with the ridiculous number of districts we currently have and limit them in every state, broadening the area that candidates would be trying to represent. Same total number of Congress People, just fewer districts with more competition. And most importantly, no more gerrymandering. 

A couple of bills like the Fair Representation Act backed by smart motherfucker Ro Khanna and Ranked Choice Voting Act sponsored by Jamie Raskin haven’t and won’t go anywhere anytime soon because you’re talking about completely reshaping our entire democratic process. However, as Rank Choice rolls out in districts and municipalities across the country, the more used to it we’ll become over time. 

There’s a more immediate and realistic way to attack this issue, which we’ll cover shortly. And we’ll leave some great sources to understand voting reform attempts and the concept of Rank Choice Voting in show notes. It’s fascinating to think what we might look like replacing the winner-take-all, gerrymandered process we live with now. It’s amazing just how undemocratic it actually is. 


Filibuster

Enlightenment philosophers from John Locke to James Madison believed in majority rule. Though, as we pointed out in the Electoral College section, to the extent that it was among a particular class of people. But the idea that the majority of this class of people - the elected officials of our main governing body - could be overpowered by the minority was 100% anathema to our founding principles. From a practical and philosophical standpoint, perhaps no other procedural fuckery would stink as badly to the founders as the filibuster. 

Recall from a prior episode the anecdote that southern racists created the filibuster to prevent the north from changing laws regarding slavery and invoked Madison’s own words. Except that Madison was still alive and was all like, that’s not what the fuck I said." Again, in terms of the framers’ mindset, Madison is still the guy who had the most influence over procedural issues. And as much as he was forced to accept the great compromise to create two legislative bodies, he eventually came around the idea as being a positive one because the Senate truly did perform a cooling function to hotbed legislative items and populist agendas. 

What he never advocated for or supported was the idea of endless debate, which is what most of us still think of when we hear the term filibuster. 

Filibuster was a procedural move perfected by the likes of John Calhoun, perhaps one of the most influential and racist members of congress who ever lived. This original loophole came about with the elimination of something called the “previous question” rule, which allowed the Senate supervisors to essentially tell the minority or opposition to a motion to wrap it up and shut the fuck up. The idea to get rid of this came from none other than Aaron Burr, who was really just trying to clean up the Senate rulebook. 

Extended, annoying debate to wait out the majority beyond reasonable thresholds of time was more powerful than one might imagine. And almost every instance was used to defend against the smallest or biggest attempts to chip away at the institution of slavery. It was a bizarre way for the minority of southern states to exercise their will against the majority of northern states and that’s the way it continued to play out from Calhoun’s day on. 

Though today senators don’t actually have to take to the floor, call emergency sessions to make a quorum secretly, or other procedural attempts to forestall legislation. Now they just have to send a fucking email. 

The filibuster story involves some really stupid Senate rules and norms made up by mostly old white dudes trying to protect the sanctity of this hallowed and horrific institution. LBJ, the “Master of the Senate” as Bob Caro has dubbed him for the ages, knew better than anyone how to push the buttons and pull the levers of the Senate to bend both people and process to his will. But before him, there was another master named Richard Russell who believed, “any southern white man worth a pinch of salt would give his all to maintain white supremacy.” 

Russell used the filibuster against civil rights legislation more than anyone else before him. In the right hands or the wrong hands, the filibuster was a weapon of mass obstruction. 

Turtlefuck 

In our time, it’s Mitch Turtlefuck McConnell who embodies obstruction through use of the filibuster while in the minority and holding back bills from the floor when leading the majority. In Kill Switch, Adam Jentleson maps out Turtlefuck’s journey from arguing for campaign finance reform and getting money out of politics in the ‘70s, to selling his soul to Roger Ailes and eventually leveraging the filibuster to block any attempts at campaign finance reform. Just fucking stunning. 

But one of the key points that McConnell himself was rather vocal about was what’s good for the goose is good for the gander. McConnell is an asshole, yes. But there was a time he could be reasoned with - the kind of time that Joe Biden likes to recall - though I would argue this is more myth than reality. 

Anyway, McConnell wasn’t alone. He didn’t invent the filibuster. Or obstruction. Robert Byrd and Harry Reid on the Dem side and, of course, the countless racist southern fucknostrils that preceded him had all guarded the filibuster once in power. McConnell had a front row seat for years learning how to weaponize the filibuster and other obstruction tactics, so when the time came for him to take a back seat during the Obama years, he was determined to become the ultimate backseat driver. 

From blocking nearly every domestic agenda item under Barack Obama right through to blocking Merrick Garland to replace Antonin Scalia, to passing Trump’s massive tax cut to the rich then blocking nearly everything else Professor Orange von Fucknugget tried to do, Mitch McConnell literally ran the country from 2011 to 2020. Whether we let him continue to dictate policy and craft the national agenda relies squarely on whether or not the Democrats have the intestinal fortitude to do away with the filibuster once and for all. 


Extreme Makeover: America Edition

So there is an answer on the table right now. At the beginning of the year, I talked about this and acknowledged that it had quite the road ahead but that it was possible. H.R. 1, For the People Act accomplishes a lot. The filibuster, that’s a procedural thing. Doesn’t need to be legislated. It’s literally the Senate changing its own rules of engagement. But it’s the key to passing the For the People Act, and any other important legislation that ever faces the nation. 

So we know that gerrymandering, the filibuster and Electoral College - three of the biggest structural and procedural quirks and traps of our democracy - have racist roots. Put them together and it makes sense why it took so fucking long to abolish slavery in this country. Oh, and just like our Economics of Racism episode illustrated, there’s a pretty strong case for including these important and fundamental narratives into our education system. If only we had some sort of…critical approach to race or a theory that tied it together. (Note: sarcasm.

Anyhoo, getting rid of the filibuster requires the participation of one dude primarily and that’s Joe Manchin. And even if he had an epiphany, there’s no guarantee he would be on board with the For the People Act. But let’s pretend he was an actual Democrat with a conscience who was more concerned about the future of our democracy than trying to put coal miners back into mines and getting re-elected. 

If he was concerned with democracy and saw fit to get rid of the filibuster to allow the majority to rule then we would have a real shot at putting humpty dumpty back together here because the For the People Act not only establishes independent commissions to draw districts, it overhauls campaign financing, expands voter access and registration and establishes clear ethics standards for sitting elected officials. 

Unfortunately, Joe Manchin and now Kyrsten Sinema stand in the way of this happening. When asked why he would vote against the For the People Act, Manchin said he considered the bill to expand voter registration, make redistricting independent and restrict things like dark money in our elections to be “partisan” and that he’s confident he can work with Mitch McConnell. 

(Cue laughter.)

So many, many episodes ago I mentioned how I wasn’t necessarily on board with removing the Electoral College. Time to clarify this. Nothing in Washington happens in a vacuum. And very few pieces of monumental legislation ever wind up passing since the likes of Gingrich took over. And even then, they’re stuffed with unsavory compromises that wind up watering down the original bill. So I have felt for a long time that it was folly to try and simply eliminate the Electoral College. 

More importantly, those of us in blue coastal states like California and New York have a tendency to forget that there’s a very large swath of land in between us. 

So here’s the upside of the Electoral College. It really does force politicians to focus on the whole of the nation and not just where the most votes are. And the swing states that we know of today, weren’t always the swing states. Plus, with the new census numbers coming out and people on the move since COVID, there’s a chance this too will change over time. So what I like about it is that, true to its intent, the Electoral College ensures representation no matter how small. And that’s a very democratic thing to do. 

What I hate about it, is the same fucking thing. That some backwards turds in some place that’s not New York have the ability to sway an election. (Sorry. The NY in me is difficult to suppress at times.) 

So here’s where I land and why I wanted to go through the motions on today’s show to Unf*ck these procedural quirks. The Senate, as James Madison posited, will derive its powers from the States, as political and coequal societies. And given that so much power is in the hands of this body, the states will forever have a say. 

And yet, the idea that a minority of this body - or any body - has the ability to outmaneuver the majority is clearly undemocratic and was never intended to be how the system works. Our Tyson Principle, the part where we as Unf*ckers have a role to play in Unf*cking The Republic remains the same as last week’s episode. If you look closely at who in the republic is defending the rights of the majority, ensuring full participation in the democratic process, ending the racist procedural tactic of the filibuster and calling for the end of gerrymandering, is coming from one end of the political left: The progressive left. 

Republicans are holding to the filibuster, gerrymandering and the resulting corruption of the Electoral College because their numbers are dwindling. Establishment Democrats are balking as well because they are able to conveniently lay the inconvenience of an intractable congress at the feet of the Republicans, which gives them an easy foil. They’ve given into the concept of the lesser evil in all political matters, driving a clear path down the middle in order to preserve their jobs and ability to attract corporate dollars. There’s no other explanation for the behavior of centrist Dems in the face of clear miscarriages of justice and attempts by Republicans to sideline so many people in the democratic process. 

They’re no longer looking to win, just hold the line indefinitely. 

If we want a democracy that works for the majority of people on the most pressing issues of our time, the answers are right there. End the filibuster and pass the For the People Act. Forget the petitions. Forget hashtag activism. Pick up the phone and bug the shit out of your local Senate office and congressional office to do these two things. 

All of your other motivations - climate change, campaign finance reform, reducing the military budget, ending mass incarceration, ensuring that your vote counts, universal healthcare, child welfare protections, food security - all become possible if we do the boring stuff first and fix the procedural fuckery in our system. It ain’t sexy, but it works. 

End the filibuster. Make every vote count. And Fuck Mitch McConnell. 

Here endeth the lesson. 


Resources

Congress: For the People Act

Congress: Fair Representation Act

Congressmen Beyer: House Democrats Reintroduce Fair Representation Act

Brennan Center For Justice: Rucho v. Common Cause

Brennan Center For Justice: Gerrymandering Explained

Brennan Center For Justice: What Is Extreme Gerrymandering?

Fair Vote: Ranked Choice Voting Legislation

Fair Vote: 2021 State Legislation on Ranked Choice Voting

Fair Vote: Details about Ranked Choice Voting

Fair Vote: Gerrymandering Reform Innovations

The Hill: Replacing 'winner-takes-all' system would end gerrymandering

Common Cause: Fair Maps, Fair Representation and a Fair Say

Common Cause: Gerrymander Gazette Newsletter


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