Good morning,
THE LAW OF UNINTENDED CONSEQUENCES OF LAWS
I have mused before about laws with unintended consequences. Even the most well-meaning of legislators often cannot predict how their legislation might be used by those seeking personal advantage. One such circumstance is the California Environmental Quality Act (CEQA), which has become a farce, only sometimes relating to its original intent. As envisioned, CEQA would provide a means for evaluating the impacts a proposed development might have on air, water, traffic and noise pollution. Mitigating measures could then be imposed for unreasonable impacts. Instead, neighborhood groups utilize CEQA as a means for tying up undesired developments for years.
There also is a fundamental intellectual flaw in the intent and application of the lofty goals of CEQA. CEQA fails to view the environment as wider than a mere neighborhood. In order to adequately measure the impact of a particular project, one must also take into account the alternatives and perhaps greater impact of those alternatives if the need is satisfied elsewhere. By not taking into account not just the impacts of a proposed development, but balancing these against the impact the same development might have if located elsewhere does not necessarily reduce the overall impact of a development on the region. In other words, CEQA neglects to consider the basic fact that, for example, there is a need for housing and a person willing to build it. If it isn’t built at Point A because of its environmental impact, is it better for the environment that it’s pushed to Point B, where there are different (and perhaps greater) impacts? And what is the effect on the environment of not building the desired housing project at all? Logic would conclude more homeless, more disease, more crime, and a worse environment.
Then there is campaign finance reform, like McCain/Feingold. The laudable attempt to limit the impact of money on our democracy failed to effectively do the job. It has always been a benefit that political parties push their candidates toward the middle, in order to garner greater support and win the election by “winning the middle.” Campaign finance reform limited contributions to political candidates and political parties (weakening the moderating effect of the party system). In doing so, it failed to limit contributions to political action committees, which typically focus on negative advertising and single issues. So funding for candidates trying to garner votes “from the middle” and parties seeking broad support has been limited, while contributions to PACs, focused on single issues and negative campaign advertising, remain unlimited.
GIVING A FRINGE CANDIDATE A LEG UP
Harvey Englander has pointed out another example of where addressing a particular policy objective can yield unanticipated and potentially damaging consequences. This is what’s happened with “winner take all” primaries and primaries. These primaries disproportionately award delegates to the candidate garnering 32%, when another attracts only 31% of the vote. When this method of allocating delegates is used in elections that already have low voter turnout, bizarre results can ensue.
Way back, the Democrats tried to make their primaries “fairer” by deciding to have proportional primaries (though often allowing for a disproportionate allocation to the “winner” of a plurality). This allows the field to be slow in coming together and allowing voices to have longer to make their case to the electorate. With this, however, comes the fact that the candidate is not known until late-Spring or early-Summer. The Republicans, on the other hand, want to limit competition early, get to an early result and then concentrate on the general election. In order to accomplish this, Republicans have many “winner take all” primaries and primaries that provide widely disproportionate numbers of delegates to the candidate who may only have a plurality that is 1% more than the second place finisher. What this accomplishes is to dilute the votes among “mainstream” candidates, allowing a mere plurality to capture all the delegates in a state. By way of example, if the South Carolina primary result is that Donald Trump were to get 32.5% of the vote and Marco Rubio, Jeb Bush, John Kasich, Ted Cruz and others received 67.5% of the vote, Trump would get all 50 delegates. This is exactly what happened in 2016. An outlier can beat down a large “mainstream” field.
The danger of the winner take all primary is that a single random candidate can capture a plurality of, say, 28%, while three other candidates might have 20% of the vote each (together, a clear majority). The result of this perverse system is that a Donald Trump-type figure (like Donald Trump!) can garner the nomination with a minority of the votes cast.
HOW DONALD TRUMP CAME TO POWER
Donald Trump got the Republican nomination for president due to the odd workings of the Republican primary system and how delegates are allocated. A mere plurality will cause one or more candidates to emerge from the pack quickly, even though they never demonstrated that they persuaded a meaningful number of voters.
In the first four primaries of the 2016 season, Trump won three of them. He got 32.7% of the vote (in only one state was he over 40%), but got 89 of the 133 delegates (translating to 67% of the total). As for the 11 states who had primaries on Super Tuesday, Trump had a similar result, capturing 34.4% of the popular vote. But he received 255 of the 595 delegates at play that day (translating to 43% of the total). He had a commanding lead in the delegate count by March 1st and the nominee was essentially decided by March 15th. He was a candidate who couldn’t attract a majority of the party’s voters in the primaries, yet he nonetheless received the nomination. The more traditional Republican candidates together received a commanding majority of the votes, but canceled each other out. The Democrats had a longer process that didn’t yield a clear leader for several more months, during which time they continued to “tenderize” each other before facing the Republican nominee.
DEMOCRATS BEING DEMOCRATS
This is another example of Democrats trying to be, well, democratic, while the Republicans chalked up a win. But as opposed to some of the mechanics of our system, where change is hard (e.g., the electoral college, the makeup of the Senate, the methodology for certifying an election), this one is capable of an easy solution.
In order to respond to the vicissitudes of the current election cycle and media cycle, the Democrats need to shift gear. They must award disproportionate numbers of delegates to the first and second place finishers in the early primaries, in order to clear the field earlier and identify a candidate earlier, as the Republicans already have figured out. Otherwise, too many candidates will survive for too long, weakening the ultimate candidate when they face a Republican nominee that has been known longer and has been raising money for the general election longer.
Have a great day,
Glenn
From the archives:
Read "How American Politics Went Insane" by Jonathan Rauch in the July/August 2016 edition of The Atlantic. Great example about how shining the light on the process has lead us to this point. As an analogy, the two things you never want to see being made are sausages and legislation...and these changes over the years have allowed us to see how legislation is being made, resulting in precious little legislation actually being made.