Making Policy By Choke Point is Cheating
And we should all at least pretend to be against cheating
Let’s talk about shenanigans. Shenanigans are a hot topic right now because the Texas abortion law dials the shenanigans up to 11. Even people who oppose abortion should be troubled by a law that skirts judicial review by turning everyone in Texas into a vigilante. Outsourcing enforcement to the public is insane. I think insider trading should be illegal, but I wouldn’t enforce it by giving everyone in the state a bag of meth and a switchblade and saying: “Keep an eye peeled.”
If you oppose shenanigans, you need to oppose them even when your side does them. That’s not always easy; remember the 2013 Wendy Davis filibuster to stop a different Texas anti-abortion bill? That was the one where she was wearing pink sneakers -- the pink sneakers were the detail that caused liberal brains to go into total meltdown.
That was a rough moment to be a pro-choice, anti-filibuster liberal. Most Democrats were losing not only their shit, but also their children’s shit and their children’s children’s shit over what a kickass quasi-deity Wendy Davis was (oh: The bill passed). At dinner with friends one night -- in Brooklyn, so go ahead and let your brain conjure up the ugliest possible stereotypes of Brooklyn progressives and you’ve pretty much nailed it -- I had to be the Founder and President of the Fuck Your Fun Society and meekly say “yeah I just don’t support filibustering.” My friends reacted as if I had expressed deep regret that I never got to eat the dog from Frasier.
But you either oppose shenanigans, or you don’t. Probably very few of us have a perfect record of enforcing standards of fairness in an objective way, but we should at least try. So, in the interest of talking about rules of fair play before those rules become synonymous with specific policies, I’d like to talk about a type of shenanigan you see fairly often: Trying to make policy by applying pressure to a choke point in the process.
Consider pornography (…please!). I’ve written about sex work and the thorny issues surrounding it before, but for now let’s talk specifically about consensual pornography. Pornography is legal. It’s also a gigantic industry; porn reportedly makes more money than the NFL, NBA, and Major League Baseball combined. Porn makes more money than mainstream Hollywood ($15 billion to $10 billion), which makes you wonder why no studio ever gets halfway through making a disaster like John Carter and decides: “Let’s just turn this into a skin flick.”
So: Outlawing pornography is not going to be easy. People who think porn should be illegal are free to try to pass laws that do that, and they do try, but it’s a tough sell. They can barely get laws passed in Utah, a state where tracking down a Budweiser is like trying to find the Holy Grail. Which is probably why the anti-porn movement has developed a different tactic: Pressuring credit card companies to stop payment to porn sties. They’ve had some success with this tactic; it was a big part of campaigns against PornHub and OnlyFans. There are other reasons why payment processors are skittish about working with porn companies, but public pressure has definitely made a difference.
Consider what’s happening here: You have a group -- people who want to outlaw porn -- who can’t summon a majority. The democratic process won’t work for them, so instead they apply pressure to a weak point in the system to achieve their goals.
And, it’s sort of worked. One thing we’ve learned from the past few years is that companies really hate getting bad press. I would love to see an analysis of whether companies that get caught up in media shitstorms make rational decisions; I suspect that they often don’t. I think many times, what’s happening is that a company has a Department of Avoiding Bad Press. 364 days a year, the Department of Avoiding Bad Press sits around the office day-drinking and playing Mario Party Superstars. But one day a year, they’re called into action and immediately go to DEFCON Six Billion. They fire people. They issue a statement so self-flagellating that it makes the minister from The Scarlet Letter look like a member of the Sex Pistols. They throw ungodly amounts of money at Some Dumb Training Bullshit, Inc. to prove that the office culture has changed. Was this the right move for the company? Who knows? The Department of Avoiding Bad Press’ job isn’t to do what’s right for the company, it’s to avoid bad press. And the company’s leadership thinks “Why do we even have a Department of Avoiding Bad Press if we’re just going to ignore their advice?” So, basically, companies might be even more risk-averse than they should rationally be, which makes them an excellent pressure point.
Let me give an example from “my side”: Death penalty opponents are trying to restrict access to the drugs used in lethal injections. They’ve had some success convincing companies to stop making certain drugs and convincing the EU to restrict their export. The plan is to: 1) Restrict access to certain drugs, and then 2) Argue that alternate methods of execution are cruel and unusual punishment.
I oppose the death penalty. Support for the death penalty is fading fast; Americans favored capital punishment by an 80 to 16 margin in 1994, but the numbers were down to 55 to 43 last year. The trend line is pretty consistent. Already, 23 states have abolished the death penalty, three are under a governor-imposed moratorium, and the federal government is under a moratorium as well. The number of people put to death per year has dropped by 83 percent since its peak in the ‘90s. I feel pretty confident that this issue will go the way I want it to go in the near future.
My beef isn’t with the companies, who don’t have to make any product they don’t want to make, or the EU, which can restrict exports of whatever they want. My problem is with the tactic of finding some quirk the in process that allows people to pursue an outcome that they couldn’t achieve through the legislature or the courts. It’s undemocratic. It’s like wanting to get into Harvard, and instead of studying hard and getting good grades, you decided to just shag the Dean of Admissions. Which would actually probably work, but the point is that it shouldn’t.
The worst version of this tactic is finding someone somewhere in the process and encouraging them to not do their job. Conservatives do this when they cheer county clerks who withhold marriage certificates from gay couples or pharmacists who won’t dispense drugs associated with abortion. Liberals and libertarians do it when they refuse to grapple with tricky issues surrounding government secrets and the role of the press and simply treat any leak of any documents as a blow for justice. Honestly: What sane person would decide that the best process for declassification of government secrets is “any rando in their 20s can leak whatever they want whenever they want and every time they do it, it’s awesome”? People in their 20s drink vodka that tastes like Mike & Ikes; they shouldn’t be making big, unilateral decisions about government secrets.
I don’t mean to imply that any political action outside the legislative process is illegitimate; there is, obviously, a time and a place for boycotts and other forms of direct action. But though the line between “legitimate” and “shenanigans” is blurry, there are clear instances in which a determined minority with little hope of legislative success focuses their attention on a choke point. And when that happens, we should recognize it as an attempt to subvert democracy.
I think this tactic is partly a symptom of Congressional paralysis. The legislature plays an ever-smaller role in lawmaking; Congress’ influence has shrunk to be roughly equivalent to that of a moderately-successful YouTube celebrity. So, people have gotten used to making policy by other means. Both sides make maximum use of the courts. Some issues (like DACA or Trump’s travel ban) are batted back-and-forth in early-presidency Executive Orders, the inevitable outcome of candidates realizing that they can use the “on my first day in office…” trope for dozens of issues. Foreign policy is mostly handled by the executive branch, including “executive agreements”, which have almost completely replaced “treaties”, because the Constitution requires treaties to be ratified by a two-thirds vote in the Senate. This eye-rolling semantic workaround is largely tolerated by both parties, because you’ll get 67 Senate votes for a major treaty the same day you’ll get 67 votes to change the national anthem to the Kars4Kids jingle.
Supermajority requirements make legislation close to impossible. Which means that the use of shenanigans, including choke points, is related to…wait for it…the filibuster. I have not dropped my obsession with the filibuster! The filibuster is anti-majoritarian weirdness that -- much like an ultra-orthodox Mormon family -- seems to be constantly giving birth to more weirdness. We need to repeal the filibuster both to restore legislative order and to make it unnecessary for me to devote entire columns to saying “I was right” in response to extremely-minor slights I suffered eight years ago.
I wonder how long it’ll be before I forget that I wrote this column, back some choke point-y nonsense for an issue I support, and get called a hypocrite. It’s hard to know, but I’m sure it’ll happen. I’m equally sure that in response, I’ll sputter out some bullshit about how actually, you see, this case is different, and it is, in fact, my critics who are the hypocrites. I should probably go ahead and pre-write that column now. But I’ll try to stick to majoritarian principles when possible, partly as a guidepost, partly as an ethic, but honestly mostly just to stick it to my friends who were at that dinner eight years ago.
***Poll***
I think I know what I want to write about for Friday, so instead of my typical “what should I write about?” poll, let’s do this one instead:
“If, in addition to the long Tuesday and Friday columns, Jeff started sending shorter stuff that is, for lack of a better term, more half-assed (a less-pejorative phrasing would be "more exploratory" or "less research-intensive"), my reaction would be...”
1. "What part of you thinks my inbox doesn't already have enough garbage in it? No." [VOTE FOR THIS]
2. "Sure. I mean, hell...it's free." [VOTE FOR THIS]
3. "I think I'd really like that"/"I am part of an FBI sting that's collecting information on you, so, by all means, Maurer: Help us dig your grave." [VOTE FOR THIS]
"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.