I am about to turn in and let the vote-counting continue without me.  It will be a troubled sleep since the election was mostly a disaster.  (Universal preschool won in Oregon, and if everywhere were like here I would be happier.)

Meanwhile two questions:

1. What went wrong with the polls?  They didn’t do too badly in 2016; the popular vote was close to the consensus prediction, and the electoral college was a squeaker within the margin of error.  This time though the polls were apparently way off.  Yes, the votes are not all in, but it doesn’t look like we’ll see the massive popular victory for Biden they foretold.  In fact, as I fade away tonight, it’s still possible that Trump could pull out a legitimate electoral college victory, something that seemed almost impossible a day or two ago.  Take Wisconsin (my home state) for instance.  We saw numbers ranging from 5-13% for Democrats, and now it’s nip and tuck.  Meanwhile, analysts were giving the Dems a better than even chance of taking the Senate, but that looks out of reach now.  So what gives?  Supposedly the weights were adjusted to better reflect the role of education, and the “shy Trumpster” effect was taken into consideration.  But here we are.

2. And how do we understand the politics?  We’re dealing with a president whose failures were about as massive as could be, especially in the context of a pandemic.  He made a fool of himself in the first debate.  He is mired in corruption.  And the Republican senate has repeatedly blocked measures to support workers, small business,es and local governments devastated by the economic effects of the virus.  If this isn’t enough to expunge them from office, what is?

I hope the news is better when I wake up.

We took a trip this weekend, driving 180 miles each way on I-5 through Oregon and Washington State.  We kept our eyes peeled for bumper stickers relating to the upcoming election but counted only three for Trump and an amazing zero for Biden.

I’ve never seen anything like this before in the US.  (In Europe bumper stickers don’t seem to exist at all.)  Just four years ago you could see Clinton and Trump plastered on cars everywhere.

Is this your experience too?

And what does it mean?  This election is supposed to be attracting more interest than any in decades; why is it practically stickerless?  Is it because there are fewer non-virtual events and less door-to-door canvassing where bumper stickers can be handed out?

The originalist theory of legal interpretation holds that judges, in reviewing the implementation of a statute, should be guided by the “plain meaning” of its language at the time it was adopted.  This is in opposition to the notion of a “living law”, whose interpretation should evolve as the conditions it addresses evolves.  For instance, originalists are appalled by Supreme Court decisions like Roe v Wade, since nowhere does the Constitution establish a right to bodily privacy, nor could the framers have plausibly thought back in the eighteenth century that the language they drafted encompassed such a right.  It is one interpretation of the living law view, on the other hand, that, as governments increasing acquired the administrative power to regulate our intimate lives, the zone of restriction implicit in the first amendment should be extended to measures that impinge on the freedom to control one’s own body.

Until his death the most vocal supporter of originalism on the Court was Antonin Scalia; now we are looking at the nomination of Amy Coney Barrett, who describes herself as an acolyte of Scalia and a resolute defender of his philosophy.

Here is a case I would bring up if I were questioning Barrett.

The rules governing elections are established at the local and state levels, not federal, but the Supreme Court is the final arbiter of how they might be interpreted.  It is common for jurisdictions to have regulations prohibiting interference with or attempts to influence voters at voting sites.  In every instance I’ve seen this is expressed in terms of physical distance, something like “within 100 yards of the polling place”.  In enforcement this has always implied a radius extending from the door voters use to enter the building in which they will cast their vote.  You can’t hold signs and shout at voters, much less accost them, within so many feet of that door.

There are two general ways to reduce the transmission of the virus.  One is “engineering”, changing the physical environment, the other is “social”, changing behavior to keep people distant from each other.  Under engineering, we can include not only physical partitions, UV lighting and ventilation, but also mask-wearing and other PPE.  I know, there is a very large behavioral component to masking, but I want to focus on the distancing aspect, so let’s put everything else in the engineering box.

Now for distancing.  Suppose we know instantaneously and with certainty everyone who is infected.  In that case, we can selectively quarantine them, and this will cut off transmission.  That is possible only in rare circumstances, such as a country that has fully eradicated the virus but has occasional external visitors.  If you have a reliable test you can identify anyone arriving with the disease and isolate them.  The rest of the population, known to be uninfected and unexposed, can move freely and congregate as they want.

A more realistic case is that you know with near certainty everyone who is infected, but only with a delay.  Then those who came into contact with them during their potential spreading period are also suspect and need to be isolated.  This is the idea behind contact tracing, which imposes distancing on a small subset of the population who may not be infected but leaves everyone else free to go on with their life.

Trump is staggering.  He’s plunging in the polls, and his behavior has become erratic and unhinged.  I don’t mean he’s being crude, infantile and wrapped in a world of fantasy—he’s always like that.  Rather, I see him as suddenly incoherent, fumbling with threats and catchphrases as if he were locked out of his house at night, frantically trying one key after another to see if any will work.

Why?

Here’s my theory: throughout his career, Trump has been resolutely self-defining.  He selects his issues, positions and attributes (clever deal-maker, hardass boss, financial/sexual/political winner, tough guy warrior for patriarchal values, underdog rebel against the Establishment) to construct a persona of his own choice.  He takes the initiative.

2016 was a great year for him.  While much was wrong with America, none of it was urgent in a screaming you-can’t-look-away-from-this sort of way.  There was plenty of political space for Trump to define what he thought the country should be focused on and why he would be the one to fix it.  The media provided invaluable service, making a big deal of every tweet, boastful claim or rally-fueled hyperbole.  Through them, Trump told us what the election was about: the invasion of dangerous immigrants pouring through our undefended borders, the humiliation of the America by China, and the haughty, corrupt elitism of Democratic politicians.  Even by disputing his take on these things, the media reinforced the notion that these were the main issues facing the country.

What has collapsed for Trump, finally in 2020, is not just the economy, the health of the population or the racial order, but his ability to determine what the issues are: he has lost control of the narrative.  This is not because the Democrats have beat him at his own game.  On the contrary, they are as clueless about these things as they’ve always been.  His problem is that we are facing real crises that demand our attention whether we want them to or not.  Trump has almost no influence over what politics are about in an election year; the pandemic, the economy and the revulsion against racism and police violence define the political moment on their own.  This is why he seems to be flailing: his entire career has been based on his projection of his needs onto the world, and he has hardly any capacity to respond to the demands of others.

Bad news for Trump: we don’t know how long the current challenge to the racial order will last, but the pandemic and the economic crisis will be with us well beyond November.  They will call the shots.  Trump can blather about some other fantasy issue being the real problem, but few will listen.

This is an age of rampant conspiratorialism.  Bill Gates is behind the pandemic because he wants to shoot you full of vaccines.  No wait, it’s all those 5G cell towers.  Or maybe it’s bioterrorism from China.  Or just a hoax perpetrated by international capital to undermine Donald Trump, the people’s tribune.  The right wing disinformation machine cranks out this stuff constantly, but paranoid fantasies also emanate from the left/alternative world.

So to counter the conspiracy pandemic, mainstream experts have come forward to advise us on how to detect and puncture unfounded rumors.  The problem I see is that sometimes there really are conspiracies, and it isn’t immediately obvious how to separate the ones that might be true from the purely crazy.

In the public interest, I offer the following rule of thumb.  A conspiracy, of course, is an agreement by a group of insiders to keep something important secret from the public.  If the group is tightly organized, motivated and able to operate separately from those on the outside, it is capable of waging a conspiracy.  If you relax these assumptions, however, you need additional groups to hide the initial conspiracy—in other words, secondary conspiracies.  And if the secondary conspirators aren’t tight enough a third ring of conspiracies is required.  As soon as you find yourself imagining lots of interlocking conspiracies to keep the central one secret you’ve wandered over the line.

So Mitch McConnell and the senate Republicans want blanket employer liability protection as the price of another round of economic support.  They have this leverage because Democrats kept postponing their agenda until they were the only ones with a list of things they wanted to spend money on.

(This illustrates classic bargaining theory to a T.  Bargaining power depends on how much you think you will lose if the agreement is delayed [Rubinstein] or fails completely.  Democrats feared economic damage to the public if bailout bills weren’t approved immediately.  Once the financial markets were backstopped Republicans considered the rest to be low stakes.  Hence the strong tilt to McConnell et al.)

So here is a possible Democratic counter:

OK, you want liability protection.  Let’s give it to any employer, large or small, that sets up a health and safety committee to oversee protections on the job, elected by the whole workforce, one person one vote.  If protections are consensual, liability is waived.  Otherwise proceed at your own risk.

This would be good policy, and it has the political advantage of placing liability within a larger, readily communicable frame about participation and consent.