Selectoral College

For the third time in a century (and the fifth time in US history) we have another election in which the candidate who won the popular vote did not gain enough electoral votes to win the presidency.  This probably leaves you scratching your  head, wondering how that’s even possible?    After all, the number of electors each state has is based on the size of that state’s population, right?  If a candidate gets the most votes in that state, that candidate wins all of the electors for that state.   If you sum up all those votes the winning candidate should have the biggest total in both the popular vote and the electoral vote counts.   Right?  Yet, we have two recent examples where the candidate who won the popular vote LOST the electoral vote.  (Gore in 2000, and Clinton this year.)

You don’t need to have a degree in math or political science to understand how this can happen.   It looks complicated because there are so many states involved and the outcomes in those states are determined not just by votes cast, but by the percentage of voters who actually vote.   If we look at a simpler system, and just assume everyone who can vote does, electoral math – and weird outcomes like we’ve just seen – are much easier to understand.

An Example

Let’s imagine a country that has just 6 states.   One state has a population of 100, the other five have populations of 10 each.   Each state is allotted one electoral vote for every 10 people.  (We round up to the next 10, so a state with 13 people would be treated as though it had 20 and thus get 2 electoral votes.)  Electors are awarded on a winner-take-all basis:  whoever wins the most votes in that state, even if only by a single popular vote, wins all of the electoral votes.

State Population Electors
Big State 100 10
Small State 1 10 1
Small State 2 10 1
Small State 3 10 1
Small State 4 10 1
Small State 5 10 1

Now, suppose you have an election to decide between candidate Jim and candidate Nancy for the next president.   Even if all of the Small States vote unanimously for Jim, giving him 50 popular votes, he’ll only get 5 electoral votes.   But if Jim loses in the Big State, even by only a few votes, Nancy gets all 10 of that state’s electoral votes, and thus beats Jim.  All Nancy needs to do to win is get 51 votes (Jim would presumably get the  other 49.)

Candidate Big State Tally Small State Tally Popular Total Electoral Total
Nancy 51 0 51 10
Jim 49 50 99 5

Nancy’s electoral tally is 10, but Jim’s is only 5.  Yet, the popular vote CLEARLY favored Jim, giving him a total of 99 (50 from the Small States plus 49 from the Big State) with Nancy only receiving 51.  Nancy wins with the most electoral votes even though she lost the poplar vote.  Jim could lose by a very wide margin in the Big State — as much as 26 to 74 — and still win the popular vote (76 to 74), but lose the electoral college the way we’ve laid this out.  This system is quite obviously biased in favor of the state with the most (voting) people.

Unbiasing the Bias

Let’s see if we can fix that the same way representation in the US’s legislative branch (Congress) was fixed.   We’ll start by giving every state just one more electoral vote.  We end up with Big State having 11 votes and each Small State having 2.  Together the small states have 10 votes, which is better than before but still not enough to overcome Big State’s voting “power”.

So, let’s give every state two additional electoral votes and see what happens.

State Population Electors
Big State 100 12
Small State 1 10 3
Small State 2 10 3
Small State 3 10 3
Small State 4 10 3
Small State 5 10 3

Now each Small State has 3 electoral votes for a total of 15, and  the Big State has 12.   Recalculating the tallies …

Candidate Big State Tally Small State Tally Popular Total Electoral Total
Nancy 51 0 51 12
Jim 49 50 99 15

Nancy now has 12 electoral votes, but Jim has 15, so Jim wins both the popular vote and the electoral college.  We can all agree this is a fair and decisive outcome.

Or, is it?

In fact, this doesn’t eliminate the bias at all; it just shifts it to the smaller states.   Sure, it gives the Big State 20% more voting “power”, but it gives each of the Small States 200% more voting power.

Let’s go back to our example and change the vote counts so that Nancy gets 80 votes in the large state and Jim only 20.  Nancy still gets no votes in the Small States like before and Jim gets all of the popular votes there and so wins those electoral votes.

Candidate Big State Tally Small State Tally Popular Total Electoral Total
Nancy 80 0 80 12
Jim 20 50 70 15

Nancy wins the overall popular vote with a tally of 80 to Jim’s 70 (20 from Big State plus 5 x 10 from the Small States), but loses the electoral college to Jim with only 12 votes to his 15.   In fact, Nancy could completely trounce Jim in the Big State, even winning it unanimously in the popular vote, and get 4 votes in every small state,  giving her a whopping 120 votes to Jim’s 30.  Jim would still win the most electoral votes and thus win the election.

A more recent, up-close-and-personal example

Our example isn’t all that far off from what the electoral map actually looked like in the first US election, held in 17881.  In that election, John Hancock (Federalist) soundly defeated George Clinton (anti-Federalist).  This map shows how the distribution of slave states and free states or industrial vs agrarian states was more or less even for both candidates.   Worth noting, 51 out of the 96 total electoral votes rested with just 5 of the `13 states.  That is, more than half the electoral college — clearly enough to carry any election — rested with less than half of the states.    If electoral votes were simply one-state-one-vote, the 8 smaller states would have the greater power.   Left to a one-(land-owning)-man-one-vote system, the more populous states have the upper hand.   Rather than pick one or the other, the Framers of the Constitution came up with a system that combined these two extremes.

Electoral Map of 1st US election, 1988.
Electoral map of 1788 — first US election. Hancock vs Clinton.

In the 2016 election cycle, Donald Trump won the most electoral votes and thus won the presidency even though Hillary Clinton won the popular vote by nearly three million more than Trump.   Let’s look at how electoral math  figured into this by looking at one of the two, electorally-large blue bastions, New York, which has 29 electoral votes, and a handful of small (by population), red states that have a total of 29 electoral votes between them.  The following table2 depicts just such a collection.

Red State Clinton Trump Electoral
Idaho 189,765 409,055 4
Iowa 653,669 800,983 6
Montana 177,709 279,240 3
Nebraska 284,494 495,961 5
South Dakota 117,548 227,721 3
West Virginia 188,794 489,371 5
Wyoming 557,93 174,419 3
Totals 1,667,772 2,876,750 29

Both the popular vote and electoral vote tallies indicate Trump to be the clear winner among these states.   New York, on the other hand went unambiguously for Clinton with 4,547,562 votes to Trump’s 2,814,589.  Clinton absolutely demolished Trump in New York’s popular vote and thus gained its 29 electoral votes.   But, take a look at what happens when you add the New York popular vote with that of the red states:

State(s) Clinton Trump
Blue (NY) 4,547,562 2,814,589
Red 1,667,772 2,876,750
Totals 6,215,334 5,691,339

In the overall totals, Clinton wins over half a million more votes than Trump in this subset of states — a margin of about 4.4% —  yet they come out dead even in the electoral count.

Let’s throw in just one more small red state — Alaska, for example, which has only three electoral votes — Clinton still beats Trump by nearly half a million votes, yet loses the electoral count 32 to 29.   Or, try this with Maine, which splits its electoral votes:  Two went to Clinton, one to Trump.   Clinton wins this electoral match-up by just one point, which hardly reflects the popular tally in which she wins by over a half million.

What are those “bonus” electoral votes really worth?

Suppose we paired up as many red and blue states as we could and subtracted two electoral votes from each of these states.   In our example (before throwing in Alaska), we would discount New York’s two “bonus” electoral votes along with another two votes from one of the red states.  That leaves 12 bonus from the other six red states.  Now, divide the difference in the popular vote count (around 500,000) by these remaining 12 electoral votes and you find that they are worth just under 44,000 popular votes EACH.  (This number would vary, of course, depending on actual voter turn out in a given election.)  In other words, without this electoral bonus, for Trump to have matched Clinton in terms of the popular vote in these red states, he would have had to win an additional 87,000+ votes in each state, on average.   If you subtract that number from the vote tallies for Trump in each of the red states and then recalculate the totals (including New York), Clinton beats Trump by more than a million popular votes, yet still ties him in the electoral count, 27-273.

I said on average rather generously.  In fact, electoral votes aren’t “averaged”, so if we want to be truly strict about this, we’ll insist that Trump would have needed at least 87,000 more votes per state, for each of those six states.   Where the popular margin was clearly in his favor, as it was in this sample, he still wins both the popular and electoral counts.  If we include Alaska and apply this arithmetic,  we have roughly 34,000 popular votes per bonus electoral vote.  Subtracting twice this number (~68,000) as we did before, from Alaska’s popular count for Trump actually has Clinton winning Alaska in both the popular vote and electoral counts, 30-27.

If we apply this same arithmetic to all 50 states, Trump’s electoral edge of 77 electoral votes versus Clinton’s popular margin of 2,865,075 means each of those “bonus” electoral votes had the equivalent of 37,200 popular votes for Trump.  Since he didn’t have to actually win those votes, he in effect won the election at a discount of sorts.

Is there a better way?

One solution that is regularly (and often) proposed is to do away with the electoral college completely and have just a popular vote.  This would work fine when there is a clear choice or when a large enough part of the electorate is behind one of the candidates to make the vote clearly decisive.  When voters are more or less evenly split, the system becomes highly vulnerable to ballot-box stuffing, voter intimidation and other types of fraud, or even counting errors or the rare loss of ballots from just one polling station.   The electoral system makes this sort of rigging extremely difficult, and is highly fault-tolerant against slip-ups whether they are deliberate or accidental.   It is also unlikely to produce a tie, in which case the Constitution says the election is decided by a vote in the House of Representatives.   This has happened twice, the last time being nearly 200 years ago.  In every election since the electoral college has delivered a very clear decision.

Another solution is to eliminate the additional two electoral votes per state.   This sounds especially appealing when you realise that the whole reason we even do this relates indirectly to slavery being legal early in our history.  I’m not going to go into the specifics of this, here.  It’s sufficient to say that taking away those two electors from each state just puts us back to the first scenario where states with larger populations have the electoral edge.   (Click here for a more detailed explanation of the link between slavery and the electoral college.)

Vote-splitting — allocating a states electoral votes in proportion to the popular vote — is yet another popular idea.   Where there are only two candidates this amounts to nothing more than the system I described at the beginning of the example.  Furthermore, suppose a state had only two electoral votes.  How would you split these between two candidates when one of them had a significant majority in the popular vote?   If there were more candidates, there would still be two major ones, leaving the other, minor candidates to function as little more than spoilers.  It doesn’t really solve the problem; it merely “kicks the can” down the road a bit further.  (You can begin to see why the Framers left this up to the states.)

You Can’t Fix “Stupid” … or  “Lazy”

I believe that the real problem isn’t the electoral college; it is the electorate — the voting public — themselves.   Any system that puts such important decisions to a vote as we do REQUIRES participation in that system for it to work properly.   That means that eligible voters MUST VOTE, at the very least.    When too few show up, the system becomes unstable, “wobbly” and decisions like electing a new president become about as random as flipping a coin.   The electoral result will still be quite definite, but it is just as likely to disagree with the popular vote as it is to agree with it.

The electoral college is designed to ensure a decisive victory one way or the other.   In fact, it quite purposely punishes poor voter turn-out by often handing the election to the least popular candidate.  And, for those who say, “But I did vote!  For a third-party candidate.”, I would answer that the electoral college also punishes poor understanding and willful ignorance.   To vote in the general election you must understand or at least accept that, like it or not, there are two main candidates and only one of them will win.  Voting for a third party candidate because you think you shouldn’t have to choose between the “lesser of two evils” will almost certainly result in your vote helping to elect the greater of the two.

Summing it Up

This last example is a simplified version of  precisely what happened in the 2016 election.   Instead of just six states, we have 50 (plus DC) and there are far more combinations of state populations and electoral vote tallies.   But, the underlying mathematics is the same.    You only need to know how to add numbers and compare them to see which is larger.  It is tempting to say that anyone who can’t understand such basic arithmetic probably shouldn’t be voting.    It is much more accurate to say that those who don’t vote can’t count.

Rules of Enragement

During a discussion over the merits of Obama’s presidency the other night, my correspondent heatedly insisted that the military hates Obama and that a major reason for this is the changes he’s made to the Rules of Engagement or ROE, which spell out when and how US military forces may “engage with” (i.e. open fire on) enemy forces. It was my friend’s opinion that under Obama, these have become more restrictive, in essence allowing the enemy (e.g. Taliban or ISIL combatants) greater latitude before US forces could deem returning fire justified.I researched the broader (the military hates Obama) claim, and this specific (ROE) claim and I would like to point out the following:

First of all, despite how much control you might think a president has, he (or she) doesn’t usually have any direct say in such details as ROE. That’s what generals and diplomats are paid to do. In the region in question, it was McCrystal and, later, Patraeus who developed those, based on their knowledge of counter insurgency and the intricate political and military workings of the region. Obama’s role in this amounts to, perhaps, hearing briefs on them, but, probably not much more than signing off on them.

Secondly, as of January of this year, the ROE have actually become LESS restrictive. For example, whereas before US troops had to actually see hostile intent (someone had to shoot at them before they could return fire, say), current ROE in Afghanistan allow them to fire on someone who’s doing nothing more than wearing an ISIL T-shirt.
What’s telling, however, is that in spite of this change, nearly all of the sites that come up when you do search for “Obama” and “ROE” are historically right-wing mouthpieces (e.g. Washington Times, Fox News, Breitbart, &c), repeating the clearly specious claim that Obama has made things more dangerous for our troops. What they conveniently omit is that Generals McCrystal and Patraeus both had more restrictive ROE, which they based on the their experience that showed counter-insurgency or COIN operations don’t use the same calculus as all-out combat. Expending huge resources to kill just a few of the enemy makes you look weak in their eyes. And even if you take out many of them, because these are “locals”, the more you kill, the less support you have among the population and, consequently, the better it is for your enemy. Sometimes, you “win” more (or lose less) by not fighting. At least not directly.

In fact, Obama ordered more drone strikes during his first month in office than did GWB during his entire presidency. That is to say that, rather than send troops into harms way, Obama has opted to use alternative methods. You may question (as I do) the morality of doing that on other grounds, certainly. But, in terms of trying to limit troops exposure to danger, I think Obama has done a better job than he’s being given credit for.

This brings me to the broader claim that the troops hate Obama. While “hate” is a rather strong word, it seems that Obama does indeed enjoy the lowest approval ratings. among the military, of any president in recent memory. But, on closer examination, this has nothing to do with ROE or anything about soldiering or military strategy. It has more to do with career choice, gays, and the role (and treatment) of women in the military.

According to a recent survey conducted by the Military Times, The main gripe you hear from those service persons who voice disapproval of President Obama is that their career opportunities and benefits — promotions, pay increases, posting preferences, &c — aren’t coming as often or as easily as they once did. One article even used the term “military EMPLOYMENT” (as opposed to military service) when describing the elevated levels of dissatisfaction. In other words, this is about job dissatisfaction, rather than matters of foreign policy, rules of engagement, or the price of tea in Mosul.
The other gripe is about the change in the military policy toward gays. And, as it happens, there’s a pretty clear divide in terms of who cares and who doesn’t. Most of the grumbling on this point comes from those who have been in the military the longest. You don’t hear it so much from newer, younger men and women. And, when pressed, regardless of career longevity, most if not all will tell you that it has made little or no difference to those who aren’t gay.

Coincident with this is the lifting of restrictions on women in combat roles. Women can now fly combat missions in fighter aircraft, and participate in combat on the ground. Those who object say that it distracts the men who, they claim, will “instinctively” try to protect the women first. Most, however, quickly point out that women have always been in combat zones: this is just a different way to be in those zones.

Lastly, and perhaps most significantly, is the reaction to Obama’s crackdown on sexual assault in the military.   Obama has instituted a very strict, zero-tolerance approach to this and the “old boys” don’t like it one bit.  Their claim is that it has made their work environment uncomfortable, that the flow of communication among co-workers is hampered by the sense that saying the wrong thing will land you in hot water more easily now.   Try as I might (and I have to admit, I’m not trying all that hard) I just can’t feel alot of sympathy for their “discomfort”.   Incidents of rape and sexual misconduct have, for too long, gone unreported or the accuser has wound up being assaulted by their rapist and then by the military justice system seeking to make the matter go away without holding anyone accountable.   That has changed and continues to change and it comes as no surprise that the ol’ boys don’t like the new rules  one bit.  Small wonder they hate the guy who has spoiled their fun and their “workplace camaraderie”.

The military has changed a great deal over the past two or three decades, both in terms of its mission and composition. Some of the larger changes have come during if not as a direct result of Obama’s administration.   Change is never comfortable and anyone who has been a part of any large organisation undergoing major changes knows these are always accompanied by much grumbling and dissatisfaction among those who preferred the “old ways” of doing things, who want things to remain the way they “always were”.   The same hold true for the military.   Their disapproval of Obama can generally, if not entirely be summarised as resistance to change.   Blaming Obama for changes in ROE, or saying the troops hate him for being a “bad CIC” are simply unsupportable by fact. This of course doesn’t stop right-wing pundits, repeating lies big and small,  as often often as it takes until they are accepted as truth.

References:

The Higher Cause

Recently, a comment appeared in response to this article. Quoting: “… as McDonald’s had the law on its side, it was time for the protesters to turn their attention into lobbying for a greater cause, to get the law changed for the benefit of the greater hills community in the future.”

In fact, we ARE protesting for greater cause. This protest is NOT soley about having or not having a McDonalds here in Tecoma. It’s really about the way they trampled the Democratic Process to bully their way in. Their request for a permit was clearly and unambiguously turned down by our local council in a unanimous decision, following the submission of an unprecedented number of written objections to their application, having deemed it “unacceptable” and inappropriate. The planning laws in Victoria, specifically clause 65, constitutes the local council’s authority to make this determination.

McDonalds, not satisfied with the democratic outcome, took their case to VCAT, which is comprised of “members” who are appointed by the queen’s representative in Victoria. They are not elected. They need not be judges. They need not even be lawyers. In fact, VCAT, strictly-speaking, isn’t even a court. And yet, it has the power to override any local council decision, so long as it is “legal”. What constitutes a “legal” VCAT decision is so over-broad that they can do pretty much anything they like so long as it isn’t clearly criminal.

And, just to make sure you understand how undemocratic VCAT is, how little your voice, my voice, and the voice of all or friends and neighbours matter anymore, the recent VCAT decision against Stonnington confirmed their stance that community objection is “irrelevant”, regardless of how many object.

THIS is the larger issue: Our democracy in Australia is being replaced with unelected, unaccountable institutions that can decide the fate and composition of OUR communities, forcing us to bear the consequences of their bad decisions.

This may be “legal” in a strict sense, but it is by no means moral. Despots throughout history have always claimed to be acting within the law — that is fundamental to what a dictatorship is, law as dictated by one person. But, we live in a democracy, and our Law is meant to be a reflection of the norms and mores of the community who live by it. WE say what the law is, WE give the government power to author it and enforce it. When that reflection becomes distorted, it isn’t the community that must adapt; it is the Law which must be changed.

NRA: The Pros and the Constitution

The NRA’s stated purpose is the defense of Americans’ Constitutional (Second Amendment) right to keep and bear arms, and they zealously maintain that this right is both absolute and inviolable and all but natural. In its landmark 2008 decision, District of Columbia vs. Heller , the US Supreme Court held that self-defense is a natural right and that a 31-year-old ban on handguns in DC violated the Second Amendment. The NRA and gun rights supporters would have us all believe that the Second Amendment — and the right to bear arms –was somehow written on different paper than the rest of the Constitution and that it can thus never be changed. History simply does not support this position. In fact, it provides two Constitutional examples that support repeal — or at the very least, clarification — of the Second Amendment: Prohibition, and Slavery.

Prohibition

 

The ratification of the Eighteenth Amendment (18A) in January, 1919 ushered in the brief era of prohibition against the manufacture, sale, and transporation of alcoholic beverages in the United States, enforced under the Volestead Act of 1920. It was repealed just thirteen years later by the Twentyfirst Amendment. Its passage was mainly supported by Republicans, who hypocritically portrayed themselves as “dry”, tea-totalling moralists, and by Women Suffrage groups, who were themselves engaged in the long-running struggle to recognize women’s right to vote in the US. The third bedfellow were conservative and/or fundamentalist Christian groups, particularly the Methodists and Baptists. Women Suffrage groups believed that consumption of alcohol promoted domestic violence, concluding that it’s prohibition would greatly reduce such violence. One can easily imagine they’d be willing to do a bit of political horse-trading: that is, agreeing to support prohibition in exchange for support in their battle for voting rights. That the Nineteenth Amendment was ratified just a year and a half after 18A makes this seem all the more likely.

Slavery

 

Some gun rights advocates will quickly point out that neither 18A nor 21A were part of the Bill of Rights and are therefore somehow less a part of the Constitution itself. Aside from the fact that this is a patently specious claim, the Thirteenth Amendment (13A) changed something that was originally codified in the Constitution itself, that is, slavery.

Slavery is mentioned three times in the main body of the US Constitution. It first appears in Article 1, Section 2, which lays out the “math” by which the number of representatives from each state are to be determined. So-called “other persons” (which included slaves) would count as three-fifths of a person for these purposes. This clause was inserted as a compromise between slave-holding (and also less populous) states and the more industrial, more densely-populated “free” states. The slave states, ironically, wanted their slaves to be counted as whole persons to help boost their alotment of representatives; free states felt that slaves shouldn’t be counted at all. Slavery is mentioned a second time in Article 1, Section 9, which prohibits the importation of slaves. Notice that this didn’t make slavery itself illegal. It simply meant that slave holders had to “buy American”. Slaves could still be bought and sold so long as they were born and bred in the US. It was not only legal to own slaves; it was constitutional!

The third and probably most damning codification of slavery in the Constitution is found in Article 4, Section 2, which established that run-away slaves caught in a free state must be extradicted back to the state — and the owner — from which they had escaped. There is neither question nor doubt that slavery was very much a part of and explicitly supported by the US Constitution.

It is historical fact that Founders such as Jefferson, Washington, Franklin, and Madison, though slave-holders themselves, abhorred slavery and recommended that slavery be abolished. Yet, it was so strongly entrenched in the national economy and psyche that it would take nearly a century, culminating in what still remains our most lethal war to excise it from our laws and our land.

And yet, the fact is that slavery in the US — somthing that was even more “Constitutional” than the right keep and bear arms — was abolished.

Then and Now

Over the past 226 years since the Constitution was first ratified, much has changed in the world and in the United States. The country has grown in land, population, and world presence and influence. Things we take for granted today didn’t exist in 1787: Flight, computers, space travel, the marvels of modern medicine come quickly to mind. There was also no such thing as a police department anywhere in the US. We had volunteer fire departments since colonial times, and hospitals had already been around, in various (sometimes rather gruesome) forms long before the Revolution. And, even though the US had no standing — that is, regular — army, we could (and out of necessity, on many occasions DID) call up volunteers to form well-regulated militias. These could take the form of rag-tag groups of citizens with guns or farm implements assembled into a posse to track down a wild animal or a criminal that might be serving grief to a town or hamlet. Or, it could be a larger, more highly regimented mustering of “troops”, under a chain of command who had, at some point, received formal training in the arts of war, such as during the Revolution.

But, with the possible exception of Philadelphia, no city had a police force. Police work, as such, was done by local sheriffs and their deputies, who were usually elected by the localities they served. These duties were about as limited as their resources and amounted mostly to process serviing, evictions, and handling the occasional “civil disturbance” (i.e., Friday night down at the local becoming a bit too energetic.) New York didn’t even have a police department until well into the nineteenth century. Same for Boston. Police departments that did exist were more constabulary than para-military. The highly-organized system of ranks and chain-of-command was something that didn’t really appear until after the Civil War.

To be able to handle situations that required more than a sheriff and a deputy or two, citizens (read: male land-owners) would be called upon to volunteer for deputization to address the issue at hand. Once the matter had been resolved, these deputies would then be dismissed. Obviously, having an armed citizenry to call upon was necessary in such times and circumstances.

We have long since outgrown the ability of a single sheriff or a handful of constables to keep watch and maintain order when the “boys” get a little to worked up. We now have highly-organized, well-armed law enforcement at local, city, state and federal levels. We also have the most expensive, well-armed, well-trained military on the planet. It is painfully clear that need for an armed citizenry so that we can form “well-regulated militias” no longer exists. To suggest that the purpose of keeping citizens well-armed is to prevent the government from getting too much power is to ignore one simple fact: GOVERNMENT ALREADY HAS FAR, FAR MORE FIREPOWER THAN ANY WELL-ARMED CITIZENRY COULD EVER HOPE TO OVERCOME. (I’ve already covered this point in an earlier post, so I won’t belabor it here.)

Making Amends

 

There is, therefore, no longer a need for militias to maintain the security of a free state. We have police departments and our military. There is also clear and unequivocal precedent for modifying the Constitution itself, as well as amending the amendments. There is nothing “sacred” about any one particular word, phrase, or sentence in our Constitution. What makes it important is something more than the sum of its parts, or the durability of any one of its parts. Our Constitution lays the foundation for a government that is empowered by the governed — We, the People. But, we are not frozen in time. We are born, we live, we die, our way of life continued by those who come after us. Neither, then, is the Constitution frozen in time, nor should it be. The Framers knew this and made provision for it to be amended, even expected, encouraged, and authored such amendments right from the start. To suggest that any part of it is “sacred” or otherwise immutable is not only silly, it demonstrates a poor grasp of the Constitution itself as well as a disregard for the principles embodied therein.

If any part of the Constitution should be held in highest regard, it should be the opening words — the Preamble.

We, the people, in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution of the United States of America.

The NRA and gun rights adherents will tell you that an armed society is a polite society. In fact, however, societies in which politeness — domestic tranquility, if you like — is maintained by the threat of lethal force is called prison. Allowing anyone to purchase a gun without so much as a simple background check, or allowing anyone to own weapons that can fire more than a handful of bullets without reloading, does far, FAR more to undermine the general welfare than to promote it. We invest our trust and our treasure in providing for our common defense against those who would seek to destroy that which we hold dear, who would seek to take away those blessings of liberty from ourselves and from our children. The NRA can shout and carry on all it likes about the “sanctity” of their precious Second Amendment. What is becoming clearer with every mass killing, with each new incident of a child or some innocent bystander being gunned down by weapons the NRA has actively encouraged everyone to own, carry, and use, is that the NRA and the Second Amendment are out of step with the rest of the Constitution, and with the values of the people who wrote it, and all who are sworn to uphold it and abide by it. We, the People, have long since outgrown our need — or our use — for both of them.

An Open Letter to Catriona Nobel, CEO, McDonalds Australia

Dear Ms. Nobel,

You have a golden opportunity to turn McDonalds Australia into a shining example of corporate responsibility and good citizenship by doing somethng very simple: Give up on building a store in Tecoma or anywhere in the Dandenongs. Now, I know, you’ve already bought the land there, made all these plans, and so forth. Let me point out that by donating that land to the town and buliding a park there — JUST a park, now — and using it as a sort of “rainbow” to tell all of Victoria — promise to all of Victoria — that you won’t build any stores in the Dandenongs, ever, you will score mega-tonnes of community love and appreciation that would otherwise cost BILLIONS. It’s cheap advertising, and a win-win for you and for us here in the Dandenongs (especially those of us in Tecoma.)

I’m writing this not because there’s Buckley’s chance of you ever reading it, let alone taking it to heart. But, I just wanted it to be out there, in writing, that you had your chance to make this all come out right. You had the power and the opportunity, and, so far, you’ve simply squandered it.

I’m sure your board of directors will be very, very impressed come the next shareholders meeting.

Warmest Regads,
Nick Seidenman
Tecoma VIC

In response to a question on McDonalds rubbish …

The following was posted on the No Maccas in the Hills facebook page today:

No matter how many signs you put on a product and all of them request that you dispose of your garbage responsibly. It is ultimately the person who choses to discard what is not wanted and the manner of its disposal. As is with alcohol companies that request you to drink responsibly, yet many people still chose to get blind drunk. Do they force people to that outcome and are they the ones to blame for countless of alcohol related incidences. It is inherently the choice of the individual to behave in a responsible manner and no one is to blame but themselves

Ps is it the fault of maccas or c.u.b. for the accompaniment of empty stubbies that often is discarded in the same place?

I offered the following response:

I think this is a strawman argument. I don’t think anyone is suggesting that McDonalds is somehow responsible for where and how their customers choose to dispose of their rubbish. The fact remains, however, that even without a McDonalds in Tecoma, we have McDonalds rubbish being discarded here, be it by customers carelessly or deliberately leaving it anywhere but a bin, by animals fossicking in bins where it has been discarded, or simply carried by the wind. In all cases, the proximity of a McDonalds is more or less directly proportional to the amount of McDonalds-branded rubbish that you’ll find within a given area.

Rubbish is but one of several (strong) reasons why we didn’t want a McDonalds in Tecoma, all of which were put forward to our council and to VCAT. The issues now go beyond these, and pertain to the strong-arm tactics used by large corporations such as McDonalds when they don’t get their way through democratic means. We’re not talking about not wanting, say, a home for indigent aboriginals, or a mosque, or some other basis that can be considered on philosophical or even legal (as in constitutional) grounds. This is about whether or not we as a community have a say in who or what does business here — WHATEVER the reason.

Were this a matter of, say, a couple hundred of us against it, but the rest of the community not caring or being in favor, and were this a matter of a council vote that was split, or even 5-4 or 6-3 in favor, we wouldn’t be having these discussions. There’d be some room for debate on the issues. This is not the case, clearly. The community turned out by the hundreds, sent in over 1,100 written objections to the proposed permit, and the council voted UNANIMOUSLY against issuing that permit. There was no ambiguity here. None. Those who truly wanted a McDonalds here had just as much access and opportunity to say so. To be sure, there were perhaps a dozen or so such proponents at the meeting where 600 of us watched proudly as our council voted it down.

The issue at this point is beyond the rubbish and the noise and the loss of amenity and the impact on well-being. The issue applies to all of us, regardless of where any individual or group may stand on McDonalds per se. This is about corporation showing utter disregard for the will of a community, clearly stated through democratically elected councillors voting unanimously, in accord with that community. Today it’s about McDonalds; tomorrow, it could be about gas drilling, or a scrap metal processing yard in your town. This isn’t just OUR issue; it’s everyone’s issue. We win this, we all win. If McDonalds wins; we all lose. All of us.

An open letter to the “Yes Maccas” proponents

To the Yes Maccas folks:

“If you don’t like Maccas, just don’t eat there.”

So say those who favor a McDonalds in Tecoma. But, is that really the issue? Do you suppoose that we’re afraid Ronald and his minions are going to come storming into our homes and force that McCrap down our throats? Of course not. It’s a correct answer, so it sounds reasonable. The un-asked question, however, makes it absurd.

The “why” of not wanting a Maccas isn’t really relevant. The fact is, we, the residents of Tecoma — and more generally, the Dandenong Ranges — simply don’t want one here, for whatever reason. And we, being residents here, owning property here, having a real vested interest here, as a community have a right to determine the character and composition of OUR community. We have MORE of a right to that than ANY individual or business has to say otherwise. This is especially true of a business that doesn’t currently exist there. We have spoken, in a voice that is loud and clear. We don’t want a Maccas here. Period.

That voice was not only ignored, it was silenced not by reason, but by corporate money and greed. McDonalds is only the latest example of an ongoing effort on the part of large, monied interests to neutralize the obstacles that stand between them and making ever more money — at our expense.

Those who wanted a Maccas in Tecoma had just as much time and opportunity to respond in favor of it as the more than 1,100 of us who filed objections to it. The council meeting during which the permit was unanimously voted down was attended by over 600 of us who objected; I counted no more than a dozen — and I’m being generous — in favor of it.

The council vote should have been the end of the story. Instead, Maccas sued in VCAT, not JUST to build in Tecoma, but … and here’s the really important part, folks … to show that they could nullify the will of the people, that they could silence our voices, to show that they were indifferent to, even spiteful of the quality of life we want in the Hills. To show that Democracy itself is
irrelevant to them and to anyone, any corporation with enough money. Why, again, is irrelevant. It’s simply what corporations do: they make money, as much of it as they can.

The voice of the community — thousands of us — was clearly heard by the council, and they responded appropriately in denying Maccas the permt to build in Tecoma. You had a voice, too. It wasn’t nearlly so loud. But you threw in with the folks with the big money, and, as they say, money talks. It talks, it shouts, and, in this case, it drowned out the voice of the clear majority of people. You may think that this went in your favor. Ultimately, it will not. Today you, who favor a Maccas in Tecoma, think that you’re on the “winning” side of this issue. I suspect that, before long, You will see that we all lost on this one, all of us. The voice you thought was yours was simply the Money talking — you were just mouthing the words for it. One day, soon, you will find your rights trampled, your voice silenced.

You don’t like having your rights trampled, don’t like being told to shut up?

Just give up your rights, and don’t say a thing.

Tecoma, McDonalds and the Corporatocracy

The gist of what I’ve been saying is that this isn’t really about McDonalds per se, nor is it about the people who choose to consume their products. That comes down to a matter of making personal choices, and I’m all for that.  Rather, this pertains to our fight in as much as we, as a community, were not allowed to choose whether or not McDonalds would be permitted to build here. The legal and regulatory (read: planning and environment scheme) framework to support that choice were obviated by TWO people — the VCAT members Megan Carew and Geoff Rundell — who heard our case. Our community solidly and unambiguously opposed the development for reasons that, honestly, did not include whether or not the food is objectively good or bad. The reasons DID include the impact the business would have on the local community, socially, environmentally, and economically. The strongest case McDonalds could make was in that latter category and even THERE it was at best specious (sounding plausible but, with closer scrutiny, found to be false.) McDonalds likes to tout the jobs and income it will bring to the community, yet it will not reveal any details about its supply chain (it will buy most of what it sells from outside Victoria), nor will it be candid about plans to replace counter workers with self-ordering stations, thereby reducing the number of actual humans it needs to run the joint.

In the larger scope, this is not something that is unique to McDonalds. Rather, they are behaving with the same sort of dearth of values and decency that is systemic to any corporation. Does this make corporations “bad” per se? I would argue, no, it does not, any more than not having such values makes a saw or lawn mower “bad”. What these all have in common are that they are TOOLS, the intent of which, ultimately, is to give us HUMANS a better quality of life. They do this by making tough jobs easier, or — and this applies to corporations — allowing us to accomplish things together in groups that would be highly difficult or even impossible as individuals.

Things go pear-shaped when we, individually or corporately, lose sight of this very simple truth: we all just want to live the best life possible. We forget that this requires a balance between what’s “good” for us individually and what’s good for us collectively. When that balance is lost, when those responsible for the vision and guidance (call it governance) of a corporation lose their way, when their moral compass deviates from the optimal path to simply the fastest (i.e. get-richest-quickest one, we have a TOOL operating without an artisan in control, a ship — perhaps even a massive one — assundering all in its path. The fate of all such rudderless vessels can be found in the shoals and reefs of history, succumbed to the tides that are the “business cycle”, and driven aground by the winds of fashion they themselves may have helped to create.

A socially responsible corporation is a very powerful tool for good in this world. if McDonalds were to actually adhere to their own high-sounding statements, we wouldn’t be having this discussion, there would be no McDonalds in Tecoma or the Dandenongs, and they wouldn’t be such a huge contributor to childhood (and adult) obesity and diabetes in ‘western” (and westernised) countries.

The sad truth is that McDonalds, like so many corporations today, is not socially responsible. Instead of being guided by people, the corporate mantra — make money for the shareholders, all else be damned — is the guiding principal. The only thing standing in the way of any corporation simply robbing us blind or even killing us for the sake of profit is the body of law by which we — people — form them and by which they are regulated. The aim of corporations, that is, making money above all else, being what it is, has of late become one of undermining and eliminating these regulatory structures. To put it simply, corporations want to BE the government, not be restrained by it.

In despotic regimes, they do this by simple bribery, whch their great (and growing) wealth facilitates. Democracies, however, present corporations with a vastly different problem: Money is worthless in that realm; the voice(s) of the governed are what count, for it is THEY who empower democratic government.

So, what to do? Get rid of democracy, that’s what. But … how? You could try the direct method: hire armies of mercenaries and overthrow the government by force. This has been tried, and occasionally succeeds, but it more often than not proves to be costlier in the end than the less direct method. Disempower the government by disempowering the GOVERNED.

If you can, little by little, replace various, key elements of democratic government with ostensibly legal, but otherwise undemocratic, unelected, unaccountable ones that seem functionally equivalent, you can gradually close off all the avenues of remedy when those replacement elements begin to favor the corporatocracy. You don’t eliminate the democratic process; you put a price on it, and a high one at that, in currency that corporations have in seemingly endless supply, that we, as individuals generally do not — money.

Which brings us back to our fight against McDonalds. VCAT is a clear example of how a democratic process is replaced with one that is undemocratic and unaccountable.  VCAT was created to help “streamline” the lower court system in Victoria, which was, according to the MPs behind the legislation that created VCAT, “drowning” in small claims, tenant-landlord, falure-to-pay, and so forth cases. To be fair, it has greatly increased the speed and, arguably, the equity with which such cases are now dispensed. However, it can, and does, routinely overstep its bounds, as it did in our case. When this happens, the only recourse is to the Victorian Supreme Court. But this is, and always has been, a hugely expensive proposition for any litigant. It is made doubly so when such cases award costs to the “loser”.

We, of Tecoma and Shire of Yarra Ranges, used the tools of democracy — our elected, accountable council — to examine, debate, and finally turn down McDonalds permit. McDonalds lawyers were ready for this, knowing that it would go to VCAT and that there, they could put on a case that, for all its “legal” verbiage would come down to who could throw the more ostentatious party — who could spend the most. Clearly, that was McDonalds. They had literally NO case, legally; the VCAT members’ ruling never even questioned whether council had the right (and responsibility) to deny the permit. VCAT’s decision was all about finding a way to interpret planning law that would be favorable to McDonalds.

McDonalds, then, is merely the current battlefield on which a much, much larger fight is being fought: to bring corporations to heel, to do what they’re supposed to do, to be ruled by us, not be tools for the wealthy few to rule us.

What Our Protest Means to Me

Our protest isn’t about McDonalds per se. Our protest is mainly about protecting the democratic process by which we determine the character and composition of our community. Our local council spent months carefully studying the McDonalds application. They also received an unprecedented number of written objections from our community — over 1,100 of them — and carefully considered the application before finally, unanimously voting to deny it, as is their right and responsibility under planning scheme clause 65.

McDonalds took the game to a “court” where democracy is irrelevant, where the party who can put on the more expensive show stands the better chance of winning. McDonalds, having the bigger purse, won in that venue. Two people, who are not judges — they’re not even lawyers — who are not elected, but appointed by the governor general, overturned our council’s decision after just a few days of hearings and deliberation.

Our council considered an appeal to the Vic supreme court, but McDonalds had already threatened to sue for costs should that appeal fail. Afraid of the risk of having to pay perhaps as much as a million dollars or more in the event of such a loss, the council voted against pursuing it further. This was a matter of dollars winning out over democracy, plain and simple.

This isn’t just about McDonalds and why it may or may not be good for your health or for the community. This is about large corporations circumventing or altogether obviating the democratic process by using unelected, unaccountable decision-making entities such as VCAT. Today it’s about McDonalds in Tecoma. Tomorrow, it could well be about gas drilling or a landfill in YOUR town. THAT is what our fight is really about.