Category: reason

Long-running MSNBC primetime host Chris Matthews announced his retirement during his show’s opening on Monday night—implicitly due to allegations of sexual harassment recently revisited by critics and purported victims, as well as scrutiny over his questioning of Sen. Elizabeth Warren (D–Mass.) and wariness of Sen. Bernie Sanders (I–Vt.).

“After conversations with MSNBC, I decided tonight would be my last Hardball,” said Matthews. “Compliments on a woman’s appearance that some men, including me, might have once incorrectly thought were okay, were never okay. Not then and certainly not today. And for making such comments in the past, I’m sorry.”

Chris Matthews announces — on a Monday — he’s retiring and that today’s “Hardball” will be the last.

"After my conversation with NBC, I decided tonight will be my last Hardball. I’ll tell you why. The younger generations are ready to take the reigns." pic.twitter.com/Y3HV9Qy35l

— Tom Elliott (@tomselliott) March 3, 2020

His resignation followed days of criticism from various corners of the internet: from female journalists taking note of his alleged history of making sexist remarks toward female guests, from those in Warren’s camp who thought his recent questioning of her was too sharp, and from Sanders supporters who took umbrage with a World War II analogy that was unflattering toward their candidate.

On Saturday, GQ‘s Laura Bassett noted that Matthews “has a pattern of making comments about women’s appearances in demeaning ways,” and listed several of the accusations: calling co-worker Erin Burnett a “knockout,” saying Sarah Palin was “very attractive,” and allegedly making sexually-charged comments about female guests on his show—including Bassett, who claimed that he once told a makeup artist to keep putting makeup on her because “I’ll fall in love with her.”

“This tendency to objectify women in his orbit has bled into his treatment of female politicians and candidates,” she wrote.

There’s enough here for a reasonable person to be perturbed, and Matthews himself admitted that he said things he should not have said. Even so, the sudden resignation shows the punitive power of a #MeToo movement that has often failed to draw important distinctions between genuinely disturbing behavior and mere boorishness.

Moreover, the other two recent criticisms of Matthews—his handling of Warren, and a comment about Sanders—were incredibly overblown. Indeed, the Warren episode is a great example of why some people are justifiably concerned that #MeToo overreach will render important and necessary conversations between men and women impossible.

After the South Carolina debate, Matthews grilled Warren over her contention that former New York City Mayor Michael Bloomberg, a rival for the 2020 Democratic presidential nomination, had told a pregnant female employee to “kill it.” Bloomberg denied making this remark, and Matthews pressed Warren to state whether she thought he was lying. Here was how Bassett framed this exchange:

MSNBC host Chris Matthews, whose long history of sexist comments and behavior have somehow not yet gotten him fired, tested the boundaries of his own misogyny again on Wednesday night. After the tenth Democratic presidential debate, the Hardball anchor grilled Elizabeth Warren about one of her lines of attack against Mike Bloomberg during the debate: that a pregnant female employee accused Bloomberg of telling her to “kill it.”

“You believe he’s lying?” Matthews asked Warren of Bloomberg’s denial.

“I believe the woman, which means he’s not telling the truth,” said Warren, who recently had to defend her own credible story of pregnancy discrimination.

“And why would he lie?” Matthews said. “Just to protect himself?”

“Yeah, and why would she lie?” Warren responded pointedly.

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In 2018, the Trump Administration declared that possession of “bump stocks” was illegal under federal law. This was a legally questionable move, but was apparently more politically palatable than imploring Congress to enact a bump stock ban. Nonetheless, in Guedes v. Bureau of Alcohol, Tobacco and Firearms the U.S. Court of Appeals for the D.C. Circuit upheld the Trump Administration’s action.

Today, the Supreme Court denied certiorari in Guedes v. BATF. There was no recorded dissent, but Justice Gorsuch wrote a brief statement on the cert denial that was quite critical of both the Administration’s action and the rationale of the D.C. Circuit’s opinion. Specifically, Justice Gorsuch raised an eyebrow at the abrupt change in the federal government’s interpretation of the applicable statute, questioned the D.C. Circuit’s conclusion that an agency could receive Chevron deference even if the agency affirmatively waived any Chevron claim, and reiterated his view that Chevron deference is inappropriate in the criminal law context.

Wrote Gorsuch:

Does owning a bump stock expose a citizen to a decade in federal prison? For years, the government didn’t think so. But recently the Bureau of Alcohol, Tobacco, Firearms and Explosives changed its mind. Now, according to a new interpretive rule from the agency, owning a bump stock is forbidden by a longstanding federal statute that outlaws the”possession [of] a machinegun.” 26 U. S. C. §5685(b), 18 U. S. C. §924(a)(2). Whether bump stocks can be fairly reclassified and effectively outlawed as machineguns under existing statutory definitions, I do not know and could not say without briefing and argument. Nor do I question that Congress might seek to enact new legislation directly regulating the use and possession of bump stocks. But at least one thing should be clear: Contrary to the court of appeals’s decision in this case, Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. 467 U. S. 837 (1984), has nothing to say about the proper interpretation of the law before us.

In the first place, the government expressly waived reliance on Chevron. The government told the court of appeals that, if the validity of its rule (re)interpreting the machinegun statute “turns on the applicability of Chevron, it would prefer that the [r]ule be set aside rather than upheld.” 920 F. 3d 1, 21 (CADC 2019) (Henderson, J., concurring in part and dissenting in part) (noting concession). Yet, despite this concession, the court proceeded to upholdthe agency’s new rule only on the strength of Chevron deference. Think about it this way. The executive branch and affected citizens asked the court to do what courts usuallydo in statutory interpretation disputes: supply its best independent judgment about what the law means. But, instead of deciding the case the old-fashioned way, the court placed an uninvited thumb on the scale in favor of the government.

That was mistaken. This Court has often declined to apply Chevron deference when the government fails to invoke it. . . . Even when Chevron deference is sought, this Court has found it inappropriate where “the Executive seems of two minds” about the result it prefers. . . . Nor is it a surprise that the government can lose the benefit of Chevron in situations like these and ours. If the justification for Chevron is that “‘policy choices’ should be left to executive branch officials ‘directly accountable to the people,'” . . .  then courts must equally respect the Executive’s decision not to make policy choices in the interpretation of Congress’s handiwork.

I would actually go farther than Justice Gorsuch here. Under SEC v. Chenery, an agency action may only be upheld on the rationale relied upon by the agency. Therefore if the agency did not conclude that the statute was ambiguous and did not make an affirmative decision to resolve the ambiguity in a particular fashion, then the agency’s action should not be upheld on that basis.

The underlying logic of Chevron, as interpreted and expounded upon in subsequent cases such as Mead, reinforces this conclusion. As I explain in my essay “Restoring Chevron‘s Domain,” Chevron deference is premised upon the idea that Congress has delegated to an agency the power to resolve an ambiguity in the statute at issue. Moreover, as Mead and related cases make explicit, for an agency to take advantage of such deference, it  must actually exercise the power that Congress delegated in the course of reaching and declaring its interpretation of the statute. Thus it should follow that if an agency does not seek to exercise such delegated power, and disavows any reliance upon Chevron, then Chevron deference should not be available.

Gorsuch goes on:

To make matters worse, the law before us carries the possibility of criminal sanctions. And, as the government itself may have recognized in offering its disclaimer, whatever else one thinks about Chevron, it has no role to play when liberty is at stake. Under our Constitution, “[o]nly the people’s elected representatives in the legislature are authorized to ‘make an act a crime.'” United States v. Davis, 588 U. S. ___, ___ (2019) . . . . Before courts may send people to prison, we owe them an independent determination that the law actually forbids their conduct. A “reasonable” prosecutor’s say-so is cold comfort in comparison.That’s why this Court has “never held that the Government’s reading of a criminal statute is entitled to any deference.” United States v. Apel, 571 U. S. 359, 369 (2014). Instead, we have emphasized, courts bear an “obligation” to determine independently what the law allows and forbids. . . . That obligation went unfulfilled here.

I understand Justice Gorsuch’s disquiet with the application of Chevron to statutes that impose criminal penalties, but denying Chevron deference in such cases is not so simple. The U.S. Code is filled with regulatory statutes with provisions that may be applied both civilly and criminally. It would be quite odd to conclude that these provisions can have one meaning when applied by an agency to a civil violation, but another when applied in a criminal context. Thus to deny Chevron deference where criminal sanctions are on the table would be, in effect, to deny Chevron deference across a wide range of subject matter, if not to throw Chevron out altogether. As I am not (yet) convinced Chevron deference is at the root of the problems with the administrative state, I am not convinced this is the wisest course.

Gorsuch continues:

Chevron‘s application in this case may be doubtful for other reasons too. The agency used to tell everyone that bump stocks don’t qualify as “machineguns.” Now it says the opposite. The law hasn’t changed, only an agency’s interpretation of it. And these days it sometimes seems agencies change their statutory interpretations almost as often as elections change administrations. How, in all this, can ordinary citizens be expected to keep up—required not only to conform their conduct to the fairest reading of the law they might expect from a neutral judge, but forced to guess whether the statute will be declared ambiguous; to guess again whether the agency’s initial interpretation of the law will be declared “reasonable”; and to guess again whether a later and opposing agency interpretation will also be held “reasonable”? And why should courts, charged with the independent and neutral interpretation of the laws Congress has enacted, defer to such bureaucratic pirouetting?

Despite these concerns, I agree with my colleagues that the interlocutory petition before us does not merit review. The errors apparent in this preliminary ruling might yet be corrected before final judgment. Further, other courts of appeals are actively considering challenges to the same regulation. Before deciding whether to weigh in, we would benefit from hearing their considered judgments—provided, of course, that they are not afflicted with the same problems. But waiting should not be mistaken for lack of concern.

Indeed, while the Court did not take this case, it could well take another raising similar issues, if not one actually challenging the bump stock ban itself. To be continued.

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One advantage of using primaries to select nominees for President is that when the selection process takes place over time, it is easier for similarly-minded voters to coordinate on nominees. Today is a good illustration, as the departures of Pete Buttigieg and Amy Klobuchar from the race for the Democratic nomination facilitate the coordination of moderate Democrats, presumably to the benefit of Joe Biden. Whatever one’s politics, it may seem perverse that the more candidates who cluster around a particular set of issue positions, the greater the advantage for candidates outside the cluster. And it may also seem perverse that candidates sometimes must drop out to best address the ideological interests of their supporters.

Social choice theorists have identified alternative approaches to resolving elections in a single round that in theory avoid imposing a disadvantage on clustered candidates. These mechanisms require voters to rank either all candidates or some of their favorites in preference order. The mechanism that seems to receive the most attention these days is ranked-choice voting. This algorithm, sometimes referred to as instant runoff voting, eliminates candidates one by one based on who has the fewest first-place votes; when a voter’s first-place candidate is eliminated, the second-place candidate assumes the top spot.

Ranked-choice voting, however, does not have a desirable property, known as the Condorcet criterion. An algorithm meets this criterion if it guarantees that it will always select a candidate who beats all other candidates in pair-wise comparisons, should such a candidate exist. For example, suppose 45% of voters have the preference ordering (1) Left (2) Center (3) Right, 40% have the preference ordering (1) Right (2) Center (3) Left, and 15% have Center as their first choice. Then, a majority of voters prefer Center to Left, and a majority prefer Center to Right, so a Condorcet method would choose Center. But ranked-choice voting would eliminate Center, ultimately selecting Left instead.

Defenders of ranked-choice voting suggest that this is highly unlikely in practice. For example, an analysis of 138 elections in the Bay Area using ranked-choice voting found that each election of the 138 had a Condorcet winner and that the ranked-choice mechanism in fact selected this winner. This may seem surprising, given the simplicity of the example above in which a Condorcet winner exists but ranked-choice voting does not select it. Another surprising result is that only 7 of the 138 elections chose a candidate trailing in the first round, indicating that ranked-choice voting rarely produces a result different from that of a system that simply chooses the candidate with the most first-place votes.

One possible explanation for these phenomena is that voters ranking their preferred candidates are not doing so in a vacuum, but instead are placing some weight on other voters’ preferences. Political scientists have long noted the possibility of bandwagon effects, and it is plausible that a voter might want to vote for the election winner, or at least for a candidate who is the obvious alternative to the winner. Voters might do this even with a voting system in which they rank all their choices. A related possibility is that a voter does not want to “waste” a vote and seeks to act strategically, even though ranked-choice voting and Condorcet methods greatly limit (without eliminating) the possibility of strategic behavior. A voter who deep down prefers Elizabeth Warren, for example, might mistakenly believe that placing her near the top of the ballot will limit the voter’s ability to make a choice between Bernie Sanders and Biden. We can think of this as a bandwagon effect too, though the motivation is quite different.

If voters change their heart-of-hearts rankings to favor candidates who are more popular among other voters, adoption of ranked-choice voting might make little difference. Consider, for example, a ranked-choice poll from about a week ago of Democratic primary voters. Given the rankings of voters, Sanders was the Condorcet winner and also would have won a ranked-choice vote, though with only a narrow head-to-head edge over Biden. This is in part because 27% of Sanders voters had Biden as a second choice and 38% of Biden voters had Sanders as a second choice. These results may seem surprising given the conventional wisdom that Sanders and Biden are in separate lanes, but makes perfect sense if there are some voters who will tend to place the candidates who have the best chance of winning at the top of their ranked-choice ballot.

To what extend do bandwagon effects undermine Condorcet methods? As a quick back-of-the-envelope approach, I ran a simple simulation many times (C# source code here). The gist is that I assumed that there are 10 candidates, each of whom has two attribute values randomly distributed from 0 to 1. Each voter also has a preferred value for each attribute and ranks candidates based on the sum of the absolute difference from the voter’s preference to each candidate’s attribute value. However, half of voters are susceptible to a bandwagon effect, in which they give some benefit to the two candidates who have the highest number of first-place votes overall. I then varied the size of this bandwagon effect.

This simulation allows us to distinguish latent Condorcet winners from apparent Condorcet winners. A latent Condorcet winner is a candidate who beats all other candidates in pair-wise comparisons when there are no bandwagon effects. An apparent Condorcet winner is a candidate who beats all other candidates in pair-wise comparisons when bandwagon effects exist. Arguably, we would like an election method to tend to choose latent Condorcet winners, even though voters’ revealed rankings factor in bandwagon effects.

This simulation can help us answer whether bandwagon effects explain why apparent Condorcet winners seem to exist so often and why ranked-choice voting picks these so often. The figure immediately below shows how often the simulation produced latent and apparent Condorcet winners. With no bandwagon effects, Condorcet winners exist around 90% of the time; the other 10% of the time, some form of the Condorcet paradox emerges. But as bandwagon effects increase, the proportion of the time that a Condorcet winner emerges rises to 100%. Unfortunately, these are apparent Condorcet winners, reflecting how the voters vote but not necessarily the assumed latent preferences. This helps explain the result above that a Condorcet winner almost always appears to exist.

Similarly, the next figure demonstrates that the probability that ranked-choice voting chooses the apparent winner increases with bandwagon effects. Of cases in which an apparent Condorcet winner exists, ranked-choice voting succeeds at identifying that winner only 80% of the time in our simulations without bandwagon effects, but 100% of the time when the bandwagon effects are large. Again, this helps explain the result that ranked-choice voting seems to choose Condorcet winners, despite the absence of theoretical guarantees that it will do so.

Changing from ranked-choice voting to a Condorcet method will not much improve the voting system’s chance of selecting the latent Condorcet winner. The next chart illustrates the probability that a voting method selects the latent Condorcet winner. Condorcet methods are better than ranked-choice voting in the absence of bandwagon effects, but both are equally bad given bandwagon effects.

This suggests that when implementing some form of preference balloting in elections with many candidates, the most important challenge is to persuade voters that they should reveal their true preferences and shouldn’t worry about wasting their votes. Perhaps this information might be easier to convey with ranked-choice voting than with more complex Condorcet methods, because the dynamics of ranked-choice voting are more intuitively understood. If so, ranked-choice voting might be preferable to Condorcet methods, despite the latter’s stronger theoretical properties. On the other hand, the superficial very strong apparent performance of ranked-choice voting may reveal that it is not easy to convince voters to express their true preferences. If that’s so, seemingly more primitive voting systems, such as our own Presidential primary system, could be preferable.

This analysis doesn’t tell us much about whether some type of Condorcet method might make a difference in a general election with a very small number of candidates. It seems plausible that adopting such a method might allow for the emergence of a centrist third party in the United States. Ranked-choice voting would be unlikely to make a difference, since the centrist candidate would have the fewest votes. But it seems plausible that a centrist candidate might be able to convince many voters to place her second on the ballot, and a Condorcet method could then choose this candidate as the winner. Precisely for this reason, ranked-choice voting, which makes little difference, may be much more politically feasible than a Condorcet alternative.

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This morning, the Supreme Court granted California’s petition (19-840), as well as Texas’s cross-petition (19-1019).

However, the Court did not grant the House of Representative’s petition (19-841).Why? Bethune-Hill v. Virginia State Board of Elections killed legislative standing–especially where only a single House brings the suit. There were not even four votes to grant the House’s petition.

The House will likely request argument time as an amicus curiae. The podium will already be quite crowded. California, the Solicitor General, and Texas will get argument time. The private plaintiffs from Texas may also request argument time. And the Court limited the case to a single hour. I think it is unlikely that the House gets time. Don Verrilli no doubt would have loved another round to defend Obamacare before the Supreme Court.

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The Conservative Political Action Conference (CPAC), a large annual gathering of the American Right, promised to wage war at this year’s event: “America vs. Socialism” was the theme. It’s a strategically savvy move when considering that democratic socialist Sen. Bernie Sanders (I–Vt.) is leading the delegate count for the 2020 Democratic presidential nomination. But notably absent from the CPAC agenda was anything pertaining to the debt, deficit, or current levels of absurd government spending—an odd choice for a conference that sought to position itself as a banner carrier for responsible fiscal policy.

There was plenty of time allotted for main stage performances by incendiary characters like Diamond and Silk, Charlie Kirk, and Candace Owens, who do more to caricature the Right than provide constructive policy ideas. Also present were panels on immigration restriction, impeachment, social media, and a live reading of FBI Lovebirds: UnderCovers, a new play about the Peter Strzok-Lisa Page FBI scandal. And there were a few meetings on the ills of socialism. But if you wanted to hear people talk about our immediate slide into deficit hell, you were at the wrong conference.

Perhaps that’s because President Donald Trump is helping drive up America’s debt despite campaigning in 2016 on a promise to eliminate the $19 trillion debt within 8 years.

Trump has “fully embraced the idea that deficits don’t matter,” writes Steven Greenhut for Reason, with fantastical budget proposals that fail to right America’s fiscal ship. His 2021 budget, for instance, requests $4.8 trillion in spending—a 21 percent increase from when Trump took office.

Republicans have often criticized Democrats for their expensive policies and rallied behind spending cuts, but now that Trump is in the White House, many conservatives seem to have abandoned the idea entirely. Rush Limbaugh, the inflammatory right-wing radio host and recent recipient of the Presidential Medal of Freedom, regularly railed against former President Barack Obama for his reckless approach to fiscal issues. In July, he appeared to have changed his position.

“How many years have people tried to scare everybody about [the deficit]?” he said on his show. “Yet here we’re still here, and the great jaws of the deficit have not bitten off our heads and chewed them up and spit them out.”

“America vs. Socialism,” it turns out, was real-life clickbait.

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