Of Rules and Fairness

When I was in my early teens I remember playing a game (I can’t remember what) with a younger cousin. I was old enough that my idea of fairness was that you followed the rules and that was fair. It didn’t matter how many wins each person had. My younger cousin, after losing a few times, told me that I was not being fair. He should win as often as I did. I was obviously not wise enough to realize that fairness might also involve my being older than he was, and that perhaps I should have introduced a handicap. But he would have been satisfied with nothing other than an even number of wins and losses.

I was reminded of that incident when I read this poll in which there is a substantial, and perhaps significant dip in Barack Obama’s popularity against John McCain in Florida. The article suggests that his stance on Florida delegates might just be to blame.

I live in Florida, but I’m registered independent, so I don’t have a dog in that particular hunt. Nonetheless, it’s interesting to watch. Americans have very little tolerance for procedures and rules. Like my young cousin, they like fairness (evenness?) in the results. Our court system is more interested in procedure, in following the rules. Justice has to take a back seat. On first look, that tends to offend many people. But you should consider the opposite. Supposing that the rules could be set aside so that a particular judge’s idea of justice or fairness would prevail. What would happen then? We would certainly not have much fairness in the way different people were treated before different judges.

This kind of attitude comes into play in the issue of Florida’s Democratic delegates. We have too basic arguments that clash. The first argument is that the rules were set, everyone knew them, and Florida didn’t follow those rules. I have great sympathy with that particular argument. The second, however, is not at all like the first. It says that everyone’s vote should be counted, that people have a right to be heard, and that the process has left Florida’s Democrats without a voice in their party’s convention.

It is not coincidental, either, that the campaign that would benefit most from Florida’s delegates is advocating their inclusion, while the other campaign, well, not so much! It might be that one or the other campaign is arguing from principle, of course, but self interest is fairly obvious. Clinton is not arguing that the delegates should be seated. It’s funny that she and her staff didn’t make that argument in Iowa or New Hampshire, where it would not be well received. In fact, we don’t hear about seating those delegates until she has won both Michigan and Florida, and is behind in the delegate count.

But there is a large constituency for that type of fairness argument. Government campaign financing involves it. Spending limits for campaigning, which I regard as egregious violations of free speech (in principle–the Supreme Court seems to think otherwise, and for some reason people listen to them instead of me, go figure!), are also based on the idea of the getting the fairest results. The better fundraiser is limited in the benefit he can get from his better fundraising. At the last election there were people prepared to roll out arguments on both sides if someone didn’t win the popular vote and yet won the electoral college. The electoral college is one of those procedure things. It doesn’t seem “fair” to many Americans.

Of course, we could go back behind the rule that Florida violated, and ask whether that rule itself was fair. But for that we have to ask the same question. Are we concerned with whether it was properly proposed and passed, or whether it adheres to some other standard of fairness, such as “count all the votes.”

I don’t think these issues are very easily resolved. Despite being a Florida resident, my own feeling is that the rule that Florida violated was a bad rule, but it was the rule nonetheless. Florida’s politicians would have done well to try to get it changed, but violating it was a bad idea. I wouldn’t seat the delegation. That’s my feeling, but I can think of many arguments against my own position.

More importantly, I think that Americans need to learn more about procedure and process, and their importance in producing reasonable fairness and justice. They may not work all the time, but their absence would result in much less fairness. We may have little patience for procedure. We laud the person who cuts through the red tape and gets the job done. But sometimes those hoops we have to jump through have a purpose. Even if the system looks troubling, consider what might happen without it.

Let’s reform the rules and procedures wherever they apply, but let’s not just bypass them in the interest of the moment’s notion of fairness.