Rigged?

According to Merriam-Webster the definition of “rig” is (1) to manipulate or control usually by deceptive means, or (2) to fix in advance for a desired result.

 

Since Donald Trump is almost certainly headed for a well-deserved shellacking on November 8, he has taken to traveling around the country complaining that the election is “rigged”. The “riggers” include everyone in the press with the exception of Sean Hannity; the Republican Party establishment, any pollster showing Trump is likely to lose, the growing collection of women who say that Trump did to them what he bragged about doing, and the great majority of people who live on this side of sanity.

 

On its face, the Trump charge is nonsense. It is obviously designed to challenge the legitimacy of the eventual victor and perhaps provide a post election platform for Trump and his army of aggrieved voters. But it would be a disservice to leave the issue at that. It is entirely legitimate to consider whether the rules governing elections in the United States are neutral in their intent and implementation.

 

Are the Rules Neutral?

 

It is perfectly obvious that the rules are not neutral. Right off the bat, election rules in the U.S. are designed to support a two-party system, which is to say a two-party duopoly. Scholars can (and do) argue about the wisdom of this, but it is indisputable that there is a bi-partisan thumb on the scale designed to protect the two major parties from external competition.

 

This was made glaringly evident by the recent decision of the Presidential Commission to exclude Libertarian candidate, Gary Johnson, from participating in the Presidential debates. Johnson, it should be noted, was polling in the 8% to 10% range in national surveys, and is on the ballot of all 50 states. In addition, a Morning Consult poll taken in early September found that a majority (52%) of respondents thought that Johnson should be included in the first debate.

 

The Commission responded that Johnson did not meet the threshold for participation required by the rules. But of course the Commission, created in 1987, consists of Democratic and Republican partisans who wrote the rules. And the rules protect the incumbent parties because they require that candidates be on enough state ballots to win 270 electoral votes and attain an average 15% standing in the polls prior to the debates. That is a steep (and expensive) hill to climb for new potential entrants. As constituted, the Debate Commission, a private non-profit entity, is a significant barrier to entry for competitors.

 

It doesn’t stop there. Not by a long shot. There are also barriers to entry down the ballot. And then there is the matter of apportionment. The Constitution specifies that state legislatures determine Congressional Districts, although Arizona for one, has defied that requirement by implementing a supposedly bipartisan (there you go again) Commission to exercise legislative powers. Is there anyone on the planet who believes that state legislatures do not protect their own as they hammer out bargains on apportionment? Or that their supposedly independent commissions don’t know who their masters are?  And, by the way, minority majority districts were created specifically for the purpose of electing minority members to Congress. These are textbook cases of “fixing rules in advance for a desired result.”

 

Then there are “independent agencies” some of which are required by law to be equally staffed by Democrats and Republicans. So let’s not kid ourselves. The rules of the system are written to achieve a desired result. The desired result is to protect the incumbent Democratic and Republican Parties’ duopolies all the way from the national level down to county commissioners and small town Mayors.

 

 

A Brief History of Electoral Corruption in the United States

 

Democrats and Republicans take turns making speeches about the sanctity of election results while charging each other with manipulating the electoral processes that produced those results. Consider the latest broadside from Senator Elizabeth Warren, Patron Saint of progressives. Never mind that Republicans are scrambling away from Trump’s rigging claim. In a Washington Post Op-ed Warren claims (without a shred of evidence) that for years the GOP has employed actual electoral fraud in the form of voter suppression, in addition to making up stories of ballot stuffing; the latter to de-legitimize Democrats and their appointees.

 

Warren says that 45% of Republicans polled believe that voter fraud is a serious problem because the GOP has served up a steady diet of stories about imaginary cheating. But, she says, there is no evidence that widespread voter fraud is a factor in modern American elections. Note the rhetorical sleight-of-hand with the inclusion of the modifier “widespread”. For fraud to be a problem it now has to be “widespread.” Well, bank robbery and kidnapping are problems but they are not particularly widespread.

 

Leaving that aside is there any evidence that electoral fraud in the U.S. is or has been a problem in recent history? Well, let’s posit that systematically denying likely opponents the right to vote is electoral fraud. It should be obvious that denying legitimate access to voters has the same effect as ballot stuffing. So it turns out that apparently unbeknownst to Elizabeth Warren, Elizabeth Warren actually argues that voter fraud is a problem. In a speech she delivered at the Edward M Kennedy Institute as recently as September 27, 2015, she said the following.

 

“And what about voting rights? Two years ago, five conservative justices on the Supreme Court gutted the Voting Rights Act, opening the floodgates ever wider for measures designed to suppress minority voting. Today, the specific tools of oppression have changed-voter ID laws, racial gerrymandering, and mass disfranchisement through a criminal justice system that disproportionately incarcerates black citizens. The tools have changed, but black voters are still deliberately cut out of the political process.”

 

So Elizabeth Warren, who says election rigging is not a problem, also charges that minority voters are systematically deprived of their voting rights as a result of decisions reached by “five conservative justices on the Supreme Court”. That would seem to meet the definition of setting the rules to achieve a desired result. More than that, she is also implicitly accuses the conservative justices of seeking that result. Remember that when she complains about attacking political legitimacy. She is attacking both the Supreme Court as well as the electoral process.

 

If we compare Warren’s speeches to her actual record on racial justice we see what we can politely call a divergence. Take the case of Laquan McDonald, in which McDonald was unjustifiably shot by a Chicago policeman on video: and remember it was on video. However Democratic Mayor and Obama confidant Rahm Emanuel suppressed the existence and contents of the video for almost 1 year for electoral purposes. Here’s what Senator Warren had to say about that in an interview on NPR.

 

MCEVERS: Let’s talk of this video of the shooting of Laquan McDonald. Doesn’t the buck stop with the mayor?

 

WARREN: Yeah. I mean, I think so. I mean – and this, again, is all a window onto very systemic problems – the police code of silence, using endless alleged investigations as some bone-wearying way to cover things up, private financial settlements by governments to avoid a larger public scrutiny. That’s all stuff that’s part of the governmental fabric in Chicago, which he inherited. And while he didn’t create the basic problems in the department, it’s still verged on the absurd to stand up, as he did, at a press conference after that video was disclosed, and say, I’ve never seen this video. He knew exactly what was in that video, whether he’d actually watched it or not, which is why he got the Chicago City Council to approve a $5 million payment to the victim’s family just a few days after his own reelection runoff victory this year.”

 

 

So Warren acknowledges that Emanuel knew what was on the video, acknowledges he arranged a $5 million settlement for political purposes; acknowledges a cover-up and describes Emanuel’s claim not to have seen the video as “absurd”. And where does she place accountability? Not on the Democratic party that has run Chicago roughly forever.

 

She refers to systemic problems; a cover-up; private financial arrangements to avoid public scrutiny, which she describes as the “part of the governmental fabric of Chicago”. No kidding. And who has been running Chicago for the last 50 years or so? Hint: it wasn’t Republicans. It was (and is) a corrupt Democratic machine. Or as the old joke has it, Dan Rostenkowski became a Congressman because he wasn’t smart enough to be an alderman

 

Somehow or other even though Warren acknowledges a systematic and ongoing government failure, she doesn’t seem to be too exercised about it. Perhaps that’s because Chicago is the epitome of corrupt Democratic Party machine politics; and a  reliable supplier of Democratic votes, particularly in Cook county, historically one of the most efficient practitioners of electoral fraud in the United States.

 

Chicago is not an isolated example of electoral fraud and the misuse of State power to achieve desired electoral outcomes, although along with New Jersey, it is a serious contender for the Gold Medal of bad governance. For example, there is a substantial body of evidence that John Kennedy stole the 1960 Presidential election through the machinations of Richard Daley of (surprise) Chicago, and Lyndon Johnson of Texas. Then there was Richard Nixon’s Watergate scandal, which in the end was all about the misuse of government power to achieve preferred electoral outcomes. It ultimately led to the resignation of then President Richard Nixon and the jailing of Attorney General Mitchell.

 

Currently we have the “Bridgegate” scandal brought to us by the Administration of NJ Republican Governor and Trump acolyte Chris Christie. In this sad tale, the Administration shut down a few lanes leading to the George Washington Bridge to punish the Mayor of Fort Lee for not endorsing Christie’s re-election bid. In New Jersey, misuse of government power is not restricted to the Governor’s office. In October of 2002 the New Jersey Supreme Court ignored what the relevant election law clearly said in order to allow the Democratic Party to substitute Frank Lautenberg on the ballot for Robert Torrecilli so as to avoid an impending Democratic defeat in the general election.

 

Then there is the recent case of Lois Lerner and the IRS. It is now beyond dispute that the IRS, using Obama political appointees, systematically and largely successfully shut down the funding of conservative and Tea Party operations to render them ineffective for the 2012 elections. And they did this at the behest of senior Democratic operatives and elected officials including Dick Durbin of – where else—Illinois. (For full account see Kimberly Strassel’s excellent book The Intimidation Game.)

 

 

While we are on current scandals let’s not leave out how the DNC worked hand-in-glove with the Clinton campaign to stack the rules to make sure that Bernie Sanders never had a chance to win the Democratic nomination. It got to the point that Clinton had some of the questions she would be asked given to her in advance of the Democratic debates. Now that Wikileaks is leaking a treasure trove of damaging material about the DNC and Hillary Clinton, Ecuador has cut off the Internet access of Julian Assange, insisting that it was not at the request of John Kerry. It is quite the coincidence though. And the denial is plausible if you believe in the tooth fairy.

 

Political Legitimacy

 

We are now told that the latest Trumpian meltdown (they are pretty much a daily occurrence) in which he claims that the election is rigged is “dangerous for our democracy.” It is dangerous because in challenging the legitimacy of the election (that he is bound to lose) he is challenging the very idea of democracy. Nonsense. This is nothing but hysteria. We have been here before, cheered on by people with far more intellectual gravitas than Donald Trump, which admittedly is not a very selective club.

 

Consider Yale Law Professor Bruce Ackerman. In the wake of Bush v. Gore in 2000 he didn’t just question the legitimacy of Bush’s election. He called into question the legitimacy of the Supreme Court as well, and said that the Senate should refuse to confirm any justices nominated by George W. Bush. Two salient paragraphs from an article Ackerman published in The American Prospect in February 2001 follow below.

 

“This is not the first time in history that the Supreme Court has made a decision that called its fundamental legitimacy into question. But on past occasions, the normal operation of the system provided a remedy. As the wheel of mortality turned and justices were replaced, the Court regained credibility as an independently elected president and Senate appointed new members. But this time, the president has not been independently elected. He is in the White House as a result of an unprincipled judicial decision that brought the electoral contest to a premature end. If such a president is allowed to fill the Court, he will be acting as an agent of the narrow right-wing majority that secured his victory in the first place.

 

In our democracy, there is one basic check on a runaway Court: presidential elections. And a majority of the justices have conspired to eliminate this check. The Supreme Court cannot be permitted to arrange for its own succession. To allow this president to serve as the Court’s agent is a fundamental violation of the separation of powers. It is one thing for unelected judges to exercise the sovereign power of judicial review; it’s quite another for them to insulate themselves yet further from popular control. When sitting justices retire or die, the Senate should refuse to confirm any nominations offered up by President Bush.”

 

Note the conspiracy accusation.

 

Let’s take a brief look at the historical record. Thomas Alan Schwartz of Vanderbilt University says that questioning a President’s legitimacy was a common albeit nasty habit in the 19th century. President Tyler was known as “His Accidency” because he was the first to assume office as a result of the death of the President. Rutherford B. Hays was called “His Fraudulency” because he lost the popular vote in the election of 1876.

David Crockett, a professor of history at Trinity University in Texas says that Thomas Jefferson was accused of not being a legitimate American because of his foreign ties. Teddy Roosevelt thought his successor William Howard Taft was illegitimate because Roosevelt disagreed with his (Taft’s) policies. Roosevelt called Taft “a fathead.” And then there was Martin Van Buren who was deemed unfit because it was alleged he secretly wore a woman’s corset.

 

Perhaps one of the most lurid accusations of illegitimacy was hurled at Lyndon Johnson. The argument was that Johnson was complicit in the Kennedy assassination and therefore not a legitimate successor. Roger Stone, a Trump sycophant, wrote a book on the subject.

 

The net of all this is: We’ve been here before and the world hasn’t ended. We’ll be here again. So it’s time to calm down.

 

And About That Rigged Economy

Bernie Sanders spent the better part of a year arguing that the economy is “rigged.” In this he was supported by (of course) Elizabeth Warren, which is a lesson about the dangers of combining high conviction with boundless ignorance. It is worth noting that in his defense of the U.S. electoral system, President Obama made the obvious but critical point that it would be extremely difficult to win the Presidency by ballot stuffing because the system is so decentralized.

 

That Obama made this point is interesting for two reasons. First, one of the many benefits of free markets over central planning is that there are many competing buyers and sellers. Millions of people execute freely negotiated transactions on a daily basis. And buyers and sellers adjust their expectations and behavior as prices change. Monopolies are a short-term phenomenon unless they are supported and protected by the State. The forces of competition that allow for Schumpeterian creative destruction see to that. In fact, decentralization is one of the reasons it is simply impossible to “rig” a free market economy.

 

There is a second reason why it is interesting (and a little amusing) to hear Obama defend the election process by citing decentralization. It is because his entire tenure as President has been to actively promote the centralization and concentration of power. He has done so through questionable executive orders; end runs around Congress both in domestic policy and in war making; and through rules written by the federal bureaucracy, including those written by supposedly independent agencies.

 

This has had two results. The first is to seriously undermine the Madisonian architecture of checks and balances that progressives so disdain, thereby increasing federal power. The second is to force consolidation in the private sector so that there are fewer but larger firms that can be more easily broken to the saddle of the State. Then more central planning can proceed apace. The process is currently underway with a vengeance in financial services, health care and telecommunications.

 

For example, the number of community banks (those with assets under $10 billion) shrank by 14% between 2010 and 2014 as Dodd-Frank went into effect. (See Dodd-Frank is Hurting Community Banks.) Or take the health care industry. According to the Alliance for Health Reform:

  • There were 1,299 mergers and acquisitions in the health care sector in 2014 at a value of $387 billion, both record highs.

 

  • Health care mergers and acquisitions were up 26 percent from 2013 to 2014, and the value of those deals rose 137 percent. The pharmaceutical sector, which accounted for 55 percent of spending and 14 percent of deal volume, drove much of the increase.

 

  • Activity in the provider sector slowed, although it picked up toward the end of 2014. Altogether for the year, there were 79 hospital mergers, down from 94 in 2012, and 58 physician practice groups merged or were purchased, down from 65 in 2013.

 

  • The estimated national market share for the five largest insurers in 2014 was 83 percent, up from 79 percent in 2010 and 74 percent in 2006.

 

  • Proposed mergers would combine the “Big 5” into three firms.

 

In the telecom industry the Times reported back in 2014 that the consolidation had progressed so far that bankers were running out of deals to pitch.

 

So here we are again. Economic and political power is being centralized in the federal bureaucracy.

We would be fine if the candidates were interested in good policy. But they are not. Instead, they each wish to expand the powers of the Imperial Presidency; neither could care less about protecting individual liberty.

 

Good policy would entail simplifying the tax code, flattening and lowering marginal rates, reducing spending, reforming entitlements and reducing regulation. Good policy is the last thing on their minds. They are both in the good old progressive business of handing out free stuff in exchange for votes. That represents a very real and ongoing threat to liberty.

 

And before long the electorate is going to realize just how expensive all that free stuff is. If we are lucky it won’t be too late.

 

JFB