#2. Who Decides if the Supreme Court Has a Conflict of Interest? They Do
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At the very end of this whole process in the U.S. you have the Supreme Court. Congress can pass a law, and the president can sign it, but if the Supremes decide it is unconstitutional, it's dead. So the idea is that, regardless of all of the political chicanery that might get bad people elected and bad legislation passed, these nine impartial judges, the greatest legal minds of their time, are able to keep things from going too wrong.
"A law letting the government quarter soldiers in American homes? That sounds above board."
As you can imagine, this means these judges have to abide by an incredibly strict set of ethical standards: For instance, they must recuse themselves from presiding over cases if they have a conflict of interest (like if they stood to personally gain or lose a bunch of money based on a ruling). For all of the lower judges in the system, this code of conduct is enforced by the higher courts -- from the lowliest backwater judge all the way up to the judges directly under the Supreme Court, everyone has someone watching over them.
But hey, who's watching the top dog judges on the Supreme Court?
Sadly, they don't combine into a giant justice Voltron to enforce the code. It's up to each individual judge to decide on their own whether they have a conflict of interest. Of course, if a Supreme Court justice clearly has a conflict of interest but fails to step down from the case, the consequences are dire ... and by "dire," we of course mean "nonexistent." There are no consequences. Legally, no one else is required to give a shit.
Even the Galactic Court is powerless. America denies its authority.
Luckily, the Supreme Court judges are people of extremely good moral standing. It's not like they'd preside over a case argued by a partner at their law firm, or take a case they have personally worked on and publicly said should be dismissed, or go on a hunting trip with the subject of their case.
#1. The Minority Party Can Keep Anything from Getting Done
Yeah, you really can't talk about what's broken in the American system without talking about the filibuster.
If you've ever taken a civics class or finished reading this sentence, you know that passing bills in the U.S. Senate is fairly simple -- get the majority of 51 votes behind you, and BOOM! Legislation. That's the theory, anyway. In reality, a single senator can hold up legislation with a filibuster, a "pirate" move (that's literally the word's origin) where the floor is hogged with a marathon speech that keeps the Senate from voting on the issue.
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For example, Senator Blackheart from Florida used this move to defeat SOPA.
Basically, a long time ago somebody noticed that down in the fine print of the Senate's rules it said that, sure, you only need 51 of the 100 votes to get something passed, but you need 60 votes in order to hold the vote at all -- the separate vote to say, "OK, we're done debating this, let's hold the vote." So if your party only holds 41 seats -- like if, say, most of the country supports the other party -- all you need is one member to say, "Hey, I'm not done debating this, and to prove it, I'll just stand up here and talk until we all keel over from starvation."
So in the old days they would literally stand up there and keep talking, forever, whether they achieved this by singing or reciting oyster recipes. It's no mean feat of endurance, and it came to be recognized as the absolute last-ditch effort to stop legislation that the majority of the elected senators approve of.
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Well, they could also shut the whole government down. But that chance only comes every so often.
Today there is a thing called silent filibuster, a handy way to prevent more work in less time. It's essentially just a threat of a filibuster -- one that can conveniently be sent in via email if the senator in question is feeling particularly lazy. No days-long speaking marathons, no impassioned speeches by defiant senators on the verge of collapse from exhaustion. What used to be a rare, eleventh-hour effort by the minority party has become routine, to the point that now almost all legislation is held up by it at one point or another.
So once again -- the people go to the polls and elect representatives. The majority supports X, so those representatives create legislation to pass X. But because of this loophole, the minority can stop it cold. They don't even have to argue their views, as with a normal filibuster; they can just type a sternly worded letter, click "send," and watch the bill die. It's like a cheat code, only instead of letting you win, it crashes the game.
Here's a handy graph to show how often this is suddenly being used:
So if the bar representing uses of this blocking tactic is getting longer, what would it look like if we had bars showing the number of bills actually getting passed? Well, the Pew Research Center has made one:
Whether this is bad for democracy depends on whether you think the government should actually, you know, do things.
While the party getting their legislation blocked screams about how unfair it is, their screaming stops the very moment they are in the minority and want to use the tactic themselves. This is why you can't get dirty tricks written out of the rules -- ultimately, both sides want to reserve the right to pull the same tricks themselves down the road. Which, we suppose, kind of sums up the problem with everything.
Related Reading: Democracy is broken. If you need more proof, check out these petitions. And while we're near the subject, let's talk election myths. Did you know angry partisan rhetoric ISN'T at an all-time high? The holidays are coming up. So before you start any relationship-ruining arguments with your family, read this.