"Pack the court" is another good example of the limits of shenanigans. While we could certainly add 5 justices to the court right now, what would stop Republicans from then adding 5,000,000 the next time they come to power? Normalizing the behavior would make it even easier for them to justify doing exactly the same thing. Do we really think they'd just sit there and say "Damn, you got me."? I think in this case "Well we deserve to use shenanigans because we're right" really blinds people to what should be a very obvious constraint to what you can achieve from our position.
On the general point about shenanigans, I agree. If you can't get a majority to do something, you shouldn't be able to do it, if you can't get a majority to block it, you shouldn't be able to block it (though the minority should be able to slow it down and force the majority to reconsider a bit, otherwise there's no point having minority representation).
On filibusters, I think there are two sorts, one where a minority gets to completely kill legislation and that's bad, and another where a minority gets to say "this particular piece of legislation is one we particularly object to and we're going to go to a load of effort to make the majority work extra hard to pass it". If the majority still wants to jump through those hoops, then they can and the law will still happen. But the minority has been able to make the point that they really don't like it, and also if it's something the minority are passionate about and the majority - while in favour - are not all that bothered about? Then the majority can decide to back off and stop it.
As I understand Texas procedure, Texas filibusters work like the second sort. The law passed, but the Texas Republicans had to do a bunch of extra work to pass it because of Wendy Davis and her pink sneakers.
I'm surprised you didn't reference the recent heroic walkout by the Texas Democrats, which differed from an earlier, underhanded walkout by Oregon Republicans because, you know...
On a separate note about the death penalty, the big difference in the EU (and here in the UK where we used to be in the EU) is that it's not seen as a legitimate political disagreement, but as an unarguable crime. EU companies selling substances that will be used to poison people are aiding and abetting a crime, which is why they aren't allowed to do it.
There is a proposal knocking around to start treating judicial murder as a "crime against humanity", which would mean that anyone who perpetrates that crime anywhere could be prosecuted in any country, ie so executioners, and politicians who have voted for the death penalty (or against abolition), and presidents and governors who didn't commute every sentence they could, and judges who pronounced sentence, and jurors who convicted on a capital crime, and so on - so all of these people would be arrested and imprisoned if they ever visited Europe.
I've been thinking about this for a few days now and I think I've come around to a slightly different conclusion. It seems to me these choke points are only a viable strategy BECAUSE the political channels in Congress are not functioning all that well.
I agree pressuring Visa or the clearing banks to clamp down on porno and weed is a strange perversion of the role Visa and the clearing banks see themselves playing. (Not that strange! We use it for international sanctions and anti-drug/terrorist roles very aggressively!) However these strategies are only useful because Congress doesn't either step in directly by (1) banning payment processing of objectionable content themselves or (2) ordering Visa to process all transactions and ignore everyone else.
The more I think about it, the more I find that pattern repeats. All of these choke point strategies are working policy in a second-best world, where Congress can't take appropriate action to either do the thing activists want OR stop the thing executive branch actors are doing.
So what is to be done? Filibuster reform is a good idea and trying to channel these arguments through the political process is another. I also think there's probably room to find was to narrow how these choke points work. Section 230 of the CDA is an attempt to do this in one form or another. But I dunno, I just think Congress should be more representative and nimble. Not sure that's really possible.
Re: additional columns. There is apparently a way to have multiple "sections" of your substack and the people can pick and choose which ones they want to get emails about. That might be a way to let people get the twice-weekly if that's all they want, or the full monty if they prefer getting everything you have to offer.
I partially disagree. All else equal it's often better to play within the spirit of the rules, not just the letter of the rules, but ultimately I care about the substantive consequences of policy as well.
At least sometimes I'm happier with rules-lawyering for a good cause than rules-lawyering for a bad cause. Both proceduralism and actual outcomes enter into my consequentialism. (And probably the consequentialism of whoever's reading. Imagine, as an extreme example, if 60% of the electorate voted in a referendum to have the other 40% of the electorate dragged into the streets and shot in the mouth!)
On filibusters specifically, I think Richard Gadsden is onto something: it depends on exactly what sort of filibuster we mean, and low-power filibusters can be a legitimate way for a staunch minority to register an intense preference. If 51% of representatives weakly support X but don't care much about it, and 49% of representatives absolutely hate X and see it as a mortal threat, it's not necessarily outrageous if the 49% can prevail by demonstrating that they care that much more.
Which is one issue with the US Senate filibuster in particular. It's not a talking filibuster, so a minority can obstruct without putting in real effort. And a second issue makes Senate 'busters still more galling: non-proportional representation. When 59 Senators were Democrats in 2009, the Republicans weren't just a mere 41% of the Senate; their 41% in the Senate represented only 38% of the 50 states' population (https://www.dailykos.com/stories/2021/2/23/2013769/-How-minority-rule-plagues-Senate-Republicans-last-won-more-support-than-Democrats-two-decades-ago). In effect, representatives of 38% of the population could overrule representatives of the remaining 62%.
On top of supermajority requirements, veto points and counter-majoritarian biases in general help block legislation. As well as the Senate and its disproportionality, bills have to make it past the House, which suffers from gerrymandering, and the presidency, decided by the Electoral College. Even I think that's too much!
Your last paragraph may happen sooner than you think... The good guys are pressuring ISPs to refuse to serve the "whistleblower" site and, so far, it's working, a version of the porn example. Justified?
So the discussion deepens into the prospect of an open warfare in which the left promotes the same tactics on its issues and the legal and communications infrastructure is immobilized by opposing forces on each side.
Seems to me that the question of OKness - is it OK if we do it - gets submerged in much bigger issues of how to stop the slide toward authoritarianism.
"Pack the court" is another good example of the limits of shenanigans. While we could certainly add 5 justices to the court right now, what would stop Republicans from then adding 5,000,000 the next time they come to power? Normalizing the behavior would make it even easier for them to justify doing exactly the same thing. Do we really think they'd just sit there and say "Damn, you got me."? I think in this case "Well we deserve to use shenanigans because we're right" really blinds people to what should be a very obvious constraint to what you can achieve from our position.
On the general point about shenanigans, I agree. If you can't get a majority to do something, you shouldn't be able to do it, if you can't get a majority to block it, you shouldn't be able to block it (though the minority should be able to slow it down and force the majority to reconsider a bit, otherwise there's no point having minority representation).
On filibusters, I think there are two sorts, one where a minority gets to completely kill legislation and that's bad, and another where a minority gets to say "this particular piece of legislation is one we particularly object to and we're going to go to a load of effort to make the majority work extra hard to pass it". If the majority still wants to jump through those hoops, then they can and the law will still happen. But the minority has been able to make the point that they really don't like it, and also if it's something the minority are passionate about and the majority - while in favour - are not all that bothered about? Then the majority can decide to back off and stop it.
As I understand Texas procedure, Texas filibusters work like the second sort. The law passed, but the Texas Republicans had to do a bunch of extra work to pass it because of Wendy Davis and her pink sneakers.
I'm surprised you didn't reference the recent heroic walkout by the Texas Democrats, which differed from an earlier, underhanded walkout by Oregon Republicans because, you know...
On a separate note about the death penalty, the big difference in the EU (and here in the UK where we used to be in the EU) is that it's not seen as a legitimate political disagreement, but as an unarguable crime. EU companies selling substances that will be used to poison people are aiding and abetting a crime, which is why they aren't allowed to do it.
There is a proposal knocking around to start treating judicial murder as a "crime against humanity", which would mean that anyone who perpetrates that crime anywhere could be prosecuted in any country, ie so executioners, and politicians who have voted for the death penalty (or against abolition), and presidents and governors who didn't commute every sentence they could, and judges who pronounced sentence, and jurors who convicted on a capital crime, and so on - so all of these people would be arrested and imprisoned if they ever visited Europe.
I've been thinking about this for a few days now and I think I've come around to a slightly different conclusion. It seems to me these choke points are only a viable strategy BECAUSE the political channels in Congress are not functioning all that well.
I agree pressuring Visa or the clearing banks to clamp down on porno and weed is a strange perversion of the role Visa and the clearing banks see themselves playing. (Not that strange! We use it for international sanctions and anti-drug/terrorist roles very aggressively!) However these strategies are only useful because Congress doesn't either step in directly by (1) banning payment processing of objectionable content themselves or (2) ordering Visa to process all transactions and ignore everyone else.
The more I think about it, the more I find that pattern repeats. All of these choke point strategies are working policy in a second-best world, where Congress can't take appropriate action to either do the thing activists want OR stop the thing executive branch actors are doing.
So what is to be done? Filibuster reform is a good idea and trying to channel these arguments through the political process is another. I also think there's probably room to find was to narrow how these choke points work. Section 230 of the CDA is an attempt to do this in one form or another. But I dunno, I just think Congress should be more representative and nimble. Not sure that's really possible.
Re: additional columns. There is apparently a way to have multiple "sections" of your substack and the people can pick and choose which ones they want to get emails about. That might be a way to let people get the twice-weekly if that's all they want, or the full monty if they prefer getting everything you have to offer.
I partially disagree. All else equal it's often better to play within the spirit of the rules, not just the letter of the rules, but ultimately I care about the substantive consequences of policy as well.
At least sometimes I'm happier with rules-lawyering for a good cause than rules-lawyering for a bad cause. Both proceduralism and actual outcomes enter into my consequentialism. (And probably the consequentialism of whoever's reading. Imagine, as an extreme example, if 60% of the electorate voted in a referendum to have the other 40% of the electorate dragged into the streets and shot in the mouth!)
On filibusters specifically, I think Richard Gadsden is onto something: it depends on exactly what sort of filibuster we mean, and low-power filibusters can be a legitimate way for a staunch minority to register an intense preference. If 51% of representatives weakly support X but don't care much about it, and 49% of representatives absolutely hate X and see it as a mortal threat, it's not necessarily outrageous if the 49% can prevail by demonstrating that they care that much more.
Which is one issue with the US Senate filibuster in particular. It's not a talking filibuster, so a minority can obstruct without putting in real effort. And a second issue makes Senate 'busters still more galling: non-proportional representation. When 59 Senators were Democrats in 2009, the Republicans weren't just a mere 41% of the Senate; their 41% in the Senate represented only 38% of the 50 states' population (https://www.dailykos.com/stories/2021/2/23/2013769/-How-minority-rule-plagues-Senate-Republicans-last-won-more-support-than-Democrats-two-decades-ago). In effect, representatives of 38% of the population could overrule representatives of the remaining 62%.
On top of supermajority requirements, veto points and counter-majoritarian biases in general help block legislation. As well as the Senate and its disproportionality, bills have to make it past the House, which suffers from gerrymandering, and the presidency, decided by the Electoral College. Even I think that's too much!
Your last paragraph may happen sooner than you think... The good guys are pressuring ISPs to refuse to serve the "whistleblower" site and, so far, it's working, a version of the porn example. Justified?
So the discussion deepens into the prospect of an open warfare in which the left promotes the same tactics on its issues and the legal and communications infrastructure is immobilized by opposing forces on each side.
Seems to me that the question of OKness - is it OK if we do it - gets submerged in much bigger issues of how to stop the slide toward authoritarianism.