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The Senate is a much bigger problem than the Electoral College

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Here at Mischiefs of Faction, we are running a series of articles debating which parts of the US Constitution have aged the least well. Two parts in the original Constitution, written in 1787, that are often criticized by pundits and political scientists are the Senate and the Electoral College. It is easy to conflate the two, but here I want to point out they have important differences and thus pose distinct challenges in adapting to the modern world.

The Electoral College is a strange, patched-together constitutional contraption. But it poses a smaller long-term threat to American democracy than the Senate, because the problems is causes are less serious and there are plausible ways to address them. In contrast, the Senate undermines principles of equal democratic representation and we have no viable way to address most of these problems within our constitutional framework.

On the surface, these institutions seem to have similarities. They are both state-based institutions, reflecting the larger political importance of the states, less mobile population, and lower level of interstate economic integration in the 1780s. They both also allow states to use their political power on a winner-take-all basis, unlike the House of Representatives.

As the Electoral College operates now — except in Maine and Nebraska where some electoral votes are allocated by House district — the candidate who wins the plurality of a state’s popular votes receives all of its electoral votes. A state’s Senate representation is determined by two winner-take-all elections, now by popular vote, but before 1913 by state legislatures.

But that’s where the similarities end. They do not advantage the same states. They are not equally serious threats to democratic representation in the future. And they are not equally challenging to reform.

The Electoral College

The first thing to know about the Electoral College is that, as originally designed, it was a disaster. It very quickly stopped working at all. The Electoral College as written in 1787 assumed presidential and vice presidential candidates would not run together on party tickets. Under the original rules there is only one Electoral College vote, in which each elector gets two ballots, and the second-place winner becomes vice president.

In America’s first contested election in 1796, to succeed George Washington, the problems became apparent. Long story short, the Democratic-Republican Party nominated Thomas Jefferson for president and Aaron Burr for vice president and the Federalist Party nominated John Adams for president and Thomas Pinckney for vice president. In this system, if all the winning party’s electors voted for both candidates on its ticket, those candidates would tie, sending the decision to the House of Representatives.

In 1796, a substantial number of Jefferson’s and Adams’s electors voted for various other candidates with their second ballot. As a result, Jefferson got the second-most votes behind Adams. Neither running mate was elected to office.

In 1800, Jefferson ran with Burr again, opposing Adams’s bid for reelection. This time, Jefferson’s Democratic-Republican Party had more supporters in the Electoral College, but the Democratic-Republican electors all voted for Burr with their second ballot, throwing the decision to the House of Representatives. The House, which, as specified in the Constitution, votes by state, fell one state short of giving Jefferson a majority, with the other states voting for Burr or casting blank ballots because their representatives were evenly divided. Only on the 36th ballot did several Federalist representatives in Maryland and Vermont change their votes, throwing their states to Jefferson, leading to his election.

This system simply did not work. The original Electoral College wasn’t just a poor method of selecting a president and vice president. It was considerably worse than that. It couldn’t make any selection at all.

The system that we have now is not what was planned by the authors of the 1787 Constitution. It is that failed system after being patched up by the 12th Amendment, which in 1804 established separate ballots for president and vice president, and also after the winner-take-all method of assigning a state’s electoral votes spread to almost all states by the mid-1800s after initially being used by only Pennsylvania and Maryland.

For most of American history, the Electoral College has rarely mattered. Presidential candidates are more likely to campaign in, and cater to, close states (more on that later), but most of the time this strategizing ends up being unnecessary because the Electoral College selects the same winner as the popular vote would have. The exceptions are 1824 (where third parties threw the election to the House of Representatives), 1877 (where President Hayes might have won a majority of the popular vote if not for rampant suppression of the black vote in the former Confederacy), 1888, 2000, and 2016. Obviously, these last two examples loom large in our thinking.

The Senate

The Senate has also gone through various iterations. Its members were chosen for six-year terms by state legislatures under the 1787 Constitution and, since the 17th Amendment took effect in 1913, by direct election. However, the way Senators vote in the chamber has evolved over the years not according to any coherent plan.

The biggest aberration is the filibuster. The authors of the original Constitution intended both Houses of Congress to vote by majority rule. James Madison specifically mentions this in Federalist #22 and #52. A previous question motion was removed from the Senate’s rules in 1806 in a move to clean up unnecessary and unused portions of the rules.

Despite the Senate’s rule for forcing an end to debate being removed in 1806 in a move to clean up various unused portions of its rules, the chamber still proceeded on a majoritarian basis in the 1800s, with minorities occasionally able to delay things but not permanently block bills. In 1817, the Senate adopted a “cloture rule” under which two-thirds of senators present could end debate. Only a few bills were blocked by a minority of Senators in the mid-decades of the twentieth century, although those were mostly crucial civil rights and anti-lynching legislation.

In 1975, the cloture threshold was lowered to three-fifths of all senators. In the decades following this, the prevalence of bills and nominations blocked by filibusters greatly increased. At the same time, Congress has created several exceptions to the filibuster rules, most notably the increasingly used “reconciliation” rules, which allow bills affecting the budget to be passed by majority vote, and, in the past decade, the abolition of supermajority requirements for all presidential nominations.

The Senate and the Electoral College give advantages to different parts of the country

Because of their similarities — they are both unusual, state-based, winner-take-all constitutional features — it is easy to assume that the Senate and Electoral College both distort democratic representation in similar ways. But this is not the case. The Senate gives a big advantage to voters in small states, because every state gets an equal number of Senators.

Thus, California’s 39 million people get two senators in Washington, while two Senators also represent states like Wyoming (577,000 people), Vermont (626,000 people), and Alaska (737,000 people). In 2013, the New York Times pointed out that the six senators from California, Texas, and New York represented the same number of people as the 62 senators from the smallest 31 states. (Florida has since passed New York to be the third-biggest state, but the pattern persists.)

The people in overrepresented states are not the same as the people in underrepresented states. While there are a few small states on the coasts (hello, Rhode Island and Delaware!), many more small states are inland and rural. The coasts, and the many large cities that reside there, tend to be in larger states. This means that the economic and infrastructure needs of cities get less representation in the Senate.

America’s nonwhite population tends to be overwhelmingly in large or medium-sized states. The 10 biggest states (by 2018 Census estimates) all have nontrivial percentages of nonwhite voters, while the 10 smallest states mostly consist of rural, overwhelmingly white states.

10 largest states:

  1. California
  2. Texas
  3. Florida
  4. New York
  5. Pennsylvania
  6. Illinois
  7. Ohio
  8. Georgia
  9. North Carolina
  10. Michigan

10 smallest states:

  1. Wyoming
  2. Vermont
  3. Alaska
  4. North Dakota
  5. South Dakota
  6. Delaware
  7. Rhode Island
  8. Montana
  9. Maine
  10. New Hampshire

While the Electoral College is also winner-take-all at the state level, each state’s representation is much more proportional to population. Each state is given electoral votes equal to its number of House members plus its two senators. House seats are allocated to the states proportional to population. Only the extra two votes contribute to disproportionality.

When states have lots of House seats, these two extra electoral votes don’t have much effect on their overall share. But for small states, the two extra votes do give them some boost, the biggest being in the states that have only three electoral votes (one House member plus two senators), when in a strictly proportional allocation they would have less. Yet overall, this boost to small states over strict proportionality is much smaller than the benefit small states get in the Senate.

Rather than small state voters, the Electoral College gives really disproportionate influence to voters on the winning side in close states, and less influence to voters on the losing side in close states and those in states where one party dominates. Evaluating which voters have an advantage in the Electoral College is similar to evaluating a gerrymander. In both, you are looking at the outcome of a series of winner-take-all “districts.” In a gerrymander, voters have more influence (and fewer wasted votes) if they win a lot of districts by a small amount, while their opponents are packed into a small number of districts where they win overwhelmingly. In the Electoral College, voters get more influence if they win states with a lot of Electoral Votes by small margins, while their opponents are packed into states where many votes are wasted because they win by huge margins.

The Republican Party won the Electoral College in 2000 and 2016, despite losing the popular vote. In these cases, the Republican candidates won narrow victories in states holding a lot of electoral votes. In 2000, George W. Bush won Florida, Ohio, Tennessee, New Hampshire, and Nevada all by less than four points — Florida famously by only a few hundred votes. In 2016, Donald Trump won Florida, Pennsylvania, Michigan, and Wisconsin all by less than two points, while Hillary Clinton ran up massive majorities in big states like California and New York (30- and 22-point wins, respectively). The Democrats’ Electoral College disadvantage was caused by narrowly losing states with a lot of electoral votes and running up large margins in states they won.

But these circumstances came about because of the very specific electoral patterns in these elections They are not signs of a permanent disadvantage for coastal, urban, nonwhite voters, or liberal voters generally, in the Electoral College. There will probably be a lot of votes from these groups wasted in California for the foreseeable future. However, if Democrats could flip Florida, the Pennsylvania-Michigan-Wisconsin trio, or Arizona into to narrow wins, the efficiency of their vote distribution improves substantially. In 2012, for example, very narrow wins in Florida, Ohio, and Virginia led Barack Obama to win a much larger percentage of the electoral vote than the popular vote. And, of course, if there is a bit more of a regional realignment and Democrats ever narrowly win Texas, they could potentially have a big Electoral College advantage.

Because relatively small shifts in the location of the voting strength of the two parties can lead one party or the other to perform better in the Electoral College than the popular vote, it makes more sense to think of the Electoral College as introducing unpredictable random changes to election outcomes, rather than consistently favoring certain types of voters. This is not a good system. I certainly wouldn’t advise any country designing their constitution to adopt a system like this. But, with the distribution of voters and the trends we have now, it is not likely to consistently advantage some types of voters over others in the future.

Our Senate problem is harder to fix

Both the Senate and the Electoral College are strange constitutional relics, whose problems would be hard to fix. But the difference is that, for the Electoral College, there is a viable plan for curing its pathologies. Currently, 15 states with 189 electoral votes have passed the National Popular Vote Compact (NPV), under which states set in state law a policy that they will give all their electoral votes to the national popular vote winner. The NPV’s text says it will go into effect if enough states join to constitute a majority of Electoral College votes. The Compact is only 81 electoral votes short of a majority.

This plan seems constitutionally and legally viable. States have the legal power to set the rules for allocating their electoral votes, which is why Maine and Nebraska now don’t use the winner-take-all methods and allocate their votes partially based on congressional districts. Article 1, Section 2 of the Constitution says, “No state shall without the consent of Congress … enter into any agreement or compact with another state.” The National Popular Vote Compact needs to be approved by a majority vote in Congress to be constitutional, but this is much easier than trying to pass a constitutional amendment.

Seth Masket worries that state legislatures would pull out of the NPV when their electoral votes have to be given to a candidate who received less than a majority of their state’s popular votes. For instance, would Colorado’s legislature allow its votes to go to Donald Trump if he won its popular vote in 2020, or would they vote to pull out of the NPV? It is always hard to make predictions like this. Yet I think it is very possible that states would allow the NPV to govern their electoral votes even in this circumstance.

The key is changing expectations. Most ordinary voters don’t think about the Electoral College. Hopefully, they will think about it less and less the longer the NPV is in effect. The NPV will be the legal status quo in the states. Once the national popular vote system becomes the new norm among elites and the mass public, the national popular vote winner will have much more legitimacy than the losing candidate among the mass public and elites. I think it is plausible to expect state legislators to leave that status quo alone.

Compared to this, the challenges to fixing or abolishing the Senate are much bigger. There is no plausible fix like the NPV without a constitutional amendment. Furthermore, Article 5 of the Constitution states that “no state, without its consent, shall be deprived of its equal suffrage in the Senate.” This appears to imply that even an ordinary constitutional amendment couldn’t change the way Senate seats are allocated or abolish the body.

One reading of this is that, rather than the three-fourths of states that must approve regular constitutional amendments, every state would need to approve a change to Senate seat allocation. Given these limitations, we are left to nibble at the edges of the main problem. Here is a list of what could be done to improve the Senate and what would be required to implement the reform.

First, you could abolish the filibuster super-majority requirement in the last realm where it still exists: regular legislation not eligible for reconciliation. This could be done by a majority vote of the Senate in the same way that the filibuster on presidential nominations was ended in recent years.

Second, you could reduce the bias in Senate representation toward rural and white voters by admitting the District of Columbia and Puerto Rico as states. Both could be admitted by majority votes in both houses of Congress.

(There is some constitutional challenge with admitting DC, in that the admitting legislation would have to allocate a very small portion of DC as the remaining seat of government, because Article 1, Section 8 of the Constitution says there is space set aside for the seat of government, although it doesn’t set a minimum size. Legislation could leave just the footprint of the Capitol Building as the seat of government. The legislation would also have to state that the District that is referenced in the 23rd Amendment, which gives DC electoral votes, refers to what is now the new state, not to the new smaller seat of government. A more detailed discussion of how this might work is too long for this article. Needless to say, there could be some challenges.)

After these first two reforms, the level of difficulty jumps considerably.

Third, even though changing Senate representation requires the unanimous consent of the states, you could pass an ordinary constitutional amendment that leaves the allocation of Senators the same but strips the entire Senate of some (or most) of its authority. The amendment could say that responsibility for judicial confirmations would switch to the House and some bills would no longer require Senate approval. However, an Amendment like this would require approval of two-thirds of both houses of Congress (including the Senate itself) and three-fourths of the states.

The fourth and ultimate way to solve the problem of the Senate would be to abolish it altogether or turn it into a body that, while smaller than the House, also allocates seats according to state population size. But as mentioned above, this is impossible. According to Article 5, this would require the approval of every single state.

The bottom line

The Electoral College is a constitutional nuisance that created big problems in 2000 and 2016 but poses fewer problems in the long run, even as it is now. We have plausible ways to reform it out of existence. In contrast, the Senate is a massive democratic problem with no plausible solution within our constitutional framework.

The Senate’s representational biases make it harder to do many things, including continuing to reduce systematic unequal treatment of nonwhite people in American society and trying to mitigate climate change. The most plausible reforms — ending the filibuster and admitting DC and Puerto Rico — only begin to reduce the problem. Anyone working to improve American public policy needs to think hard about the vexing problem of Senate reform, because without such reform, adequately addressing the most serious problems facing the United States is impossible.

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Special counsel Robert Mueller’s congressional testimony is set for July 17

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After weeks of speculation about whether special counsel Robert Mueller would testify before Congress, House Judiciary Committee Chair Jerry Nadler (D-NY) and House Intelligence Committee Chair Adam Schiff have announced Mueller will appear in front of their committees in July.

On Tuesday night, Nadler announced Mueller had agreed to testify, after his committee and the House Permanent Select Committee issued subpoenas. Mueller will testify in open session on July 17, according to the chairs.

“We look forward to hearing his testimony, as do all Americans,” Schiff and Nadler’s statement reads. “Americans have demanded to hear directly from the Special Counsel so they can understand what he and his team examined, uncovered, and determined about Russia’s attack on our democracy, the Trump campaigns acceptance and use of that help, and President Trump and his associates’ obstruction of the investigation into that attack.”

But don’t expect too many bombshells from the special counsel’s testimony. Mueller has been very clear about what he will and will not talk about publicly in front of Congress: He will talk about what is already in his report on Russia’s meddling in the 2016 election and President Donald Trump’s alleged obstruction. He won’t talk about what he thinks about how Attorney General William Barr handled the report’s rollout, or anything else not in the report’s 448 pages.

“The report is my testimony,” Mueller said in a rare public statement last month. “I would not provide information beyond that which is already public in any appearance before Congress.”

House Democrats want Mueller to give more information. They are deeply suspicious of the way Barr and the Trump administration handled the Mueller report rollout this spring and want to hear Mueller’s side of the story. But Mueller, seemingly afraid of politicizing the report and his role in it, has clearly said he has no desire to speak on it.

Democrats had hoped Mueller would willingly agree to testify in front of Congress, but House Judiciary Committee chair Jerry Nadler also floated the option of subpoenaing the special counsel last month if Trump tried to claim executive privilege to block it. “We will subpoena him if we have to,” Nadler reiterated in a CNN interview earlier this month.

Given the fact Mueller said his decision not to testify was his and his alone, committee chairs were hesitant to take the step of subpoenaing him, but eventually chose to. Mueller was easier to persuade than Trump administration officials, many of whom have chosen to ignore Democratic subpoenas.

Even if Mueller can’t speak to anything beyond the report, Democrats believe his testimony will be valuable as they slowly and methodically mount their campaign of investigations against Trump. Whether it will ultimately lead to impeachment is another question entirely — one House Democrats don’t appear any closer to tackling.

Mueller believes Congress should hold Trump accountable

Twice — once in his report and once in his public statement — Mueller has said he believes Congress is the body that should decide whether Trump obstructed justice by attempting to stop the investigations into his 2016 campaign.

Even with plenty of evidence, Mueller explained why his team did not charge Trump for obstructing justice, saying long-standing Department of Justice policy prevented him from indicting a sitting president. And as Vox’s Andrew Prokop wrote, Mueller went a step further, concluding he couldn’t even state whether Trump had broken the law because “it would be unfair to the president, because the fact that he can’t be charged means he can’t clear his name with an acquittal at trial.”

Mueller instead punted a fix to Congress. After examining Congress’ role through the lens of separation of powers in the US Constitution and past court cases, Mueller concluded in his report that lawmakers are the ones with the authority to act in cases in which a president may have committed obstruction of justice.

“With respect to whether the President can be found to have obstructed justice by exercising his powers under Article II of the Constitution, we concluded that Congress has authority to prohibit a President’s corrupt use of his authority in order to protect the integrity of the administration of justice,” Mueller’s report reads.

He added this critical line: “The conclusion that Congress may apply obstruction laws to the President’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.”

Mueller wrote that no person — not even the president of the United States — is above the law, and that the US Constitution doesn’t “categorically and permanently immunize a President for obstructing justice.” DOJ precedent effectively prevented Mueller from charging a sitting president but, as Prokop wrote, Mueller’s decision to investigate and lay out the potential for crimes and still not come to a conclusion one way or another sets another precedent for future presidents to act above the law — especially if they have confidence a politically split Congress won’t do anything about it.

Congress’s next steps will be critical because Mueller’s report explicitly states, “while this report does not conclude that the President committed a crime, it also does not exonerate him.”

Many Democrats viewed this as tantamount to an invitation to the House Judiciary Committee to open an impeachment inquiry — something House Speaker Nancy Pelosi and her top lieutenants have been hesitant to wade into. The Democratic leader has instead advocated for her party to continue investigating the president, even as a growing number of her caucus calls for an inquiry to be opened.

The number of calls for an inquiry grew even more after Mueller’s public statement. Even if he is simply talking about the already known conclusions of his report, there’s the potential to cause even more Democrats to back an inquiry.

The drumbeat on an impeachment inquiry is growing steadily, but whatever House Democrats do, it is a decision now out of Mueller’s hands.

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Tik Tok China Daily Trending Videos 20190602 抖音每日热门视频

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#涂磊 Parenting and children’s 52 things Children’s Day, personally light your care! #摇音小助手(#涂磊育儿之和孩子的52件事 六一儿童节,亲手点亮你的小心愿!#抖音小助手) – 涂磊

Blame me… didn’t choose well… Hey! !(怪我了…没选好…唉!!) – A.燁煬(拳师犬阿卢)

This is quite fun(好好玩哦) – 陈乔恩

After 90, the old Timo will have to pass 6.1! I also sang a short paragraph of Deng Ziqi’s “The Devil from Heaven” #魔的天堂鬼# Today is a child(90后老提莫也要过6.1哼!我也唱一小段邓紫棋的《来自天堂的魔鬼》#来自天堂的魔鬼 #今天就做个孩子) – 冯提莫

200w powder thank you for giving you a peach blossom in the June 1st ~ Song pants is good for jumping this! I loved ~#original national wind plan(200w粉感谢❤️在六一给大家来一首桃花笑~宋裤好适合跳这个!我爱了~#原创国风计划) – Fofo酱

Is the June 6 unfair to me? ! ? ! Is my mom fake? !(六一节对我这么不公平吗?!?!我妈是假的吗?!) – 陈赫

Teacher Lang said: If a meal can’t be solved, then… two meals(浪老师说:如果一顿饭解决不了的,那就…….两顿) – 慕容瑞驰

Jie Ge, I forgive you.(杰哥我原谅你了) – 小沈阳

You are really funny, jump up, wipe your mouth, and go to sleep right away. #看我多玩玩#猫#摇音小助手(你确实很搞笑,跳上去,擦擦嘴,马上就睡觉#看我多会玩 #猫 #抖音小助手) – 可可西里

For the history of urine, this last expression(为啥史尿多最后这个表情) – 哈K

Childhood is – will look at the rain like it grows up but will envy it so rain, 6.1 happy(童年就是——会像它一样看雨 长大却会羡慕它这样看雨,6.1快乐) – 十一

Don’t let her wear high heels when going out with friends, or you will be like me.(以后跟朋友出门千万不要让她穿高跟鞋,不然你就会像我一样) – 赵铁柱

The sneak shot of a man who is about to be a father. Are men all like this?(偷拍即将当爸爸的男人。男人是不是都是这样) – 娜娜有个别人家男友

The video was found out, and the tone was lowered. It was not shouted out. It was recorded once, and I was afraid of disturbing others. The certificate is a civilized dormitory.(视频呢找出来了,降调了,不是喊出来的,就录了一遍儿,怕打扰到别人。奖状是文明宿舍。) – 风浪才子

Eat a daughter-in-law’s mental weight loss and my action to lose weight … @ Zoo Band @音乐盒(吃货媳妇的精神减肥和我的行动减肥 …@动物园乐队 @音乐盒子) – Q朋克

Some of the Magic Fairy dialects that Grandma is learning on the way home, you guess who said it. I wish you all a happy day #六一儿童节#雨女无瓜(奶奶在回家的路上现学的一些魔仙堡方言,你们猜猜是谁说的。 祝大家六一快乐#六一儿童节 #雨女无瓜) – 淘气陈奶奶

What is this position? #邓超#Deng Chao Yinhe Tuition Class @摇音小助手(请问这是什么走位?#邓超 #邓超银河补习班 @抖音小助手) – 邓超工作室

On the Children’s Day, Children’s Day is so against me, should I endure it?(六一儿童节小歪居然这么对我,我该忍着么) – 开挂的猫二歪

Classmates, Happy Children’s Day! #Apple original camera #vlog日常#爱#六一 @摇音小助手(同学,六一快乐!#苹果原相机 #vlog日常 #爱情 #六一 @抖音小助手) – 土木一班姜同学

Happy Children’s Day(六一快樂) – 张庭

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20 Marvelous Behind-the-Scenes Shots That Are Sure to Make History

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When it comes to the magic of moviemaking, it takes a lot of work to make the impossible a reality. While special effects are nearly as old as film itself (it has even appeared in silent films), the industry has come a long way. You’d be surprised to see how some of your favorite action scenes became a reality.

We at Bright Side love sharing the scenes from our favorite movies and revealing how they were made, and we can’t wait for you to see it all!

1. To be fair, Sean Gunn is cuter than a talking raccoon.

2. No, Hollywood movies don’t usually set the actors on fire.

3. Who’s a good boy?

4. A stormy day may start out green and bright.

5. It’s like space is just a room away…

6. That said, I’m sure one day we’ll make it through the looking glass.

7. So, you’re saying you shouldn’t go out and pet tigers?

8. It’s never been this easy to get to the seashore.

9. We can put a man on the moon and have a war in the stars.

10. You’d think they’d use a green screen to get to Emerald City but to each his own.

11. The most impressive part is how the pillow and wall changed color.

12. Now, if we could just find a way to actually travel back in time to the ’20s…

13. It’s time to turn off the lights (and put up the sun)!

14. Being an action hero is much safer when using a harness.

15. Who knew that getting superpowers could be so easy?

16. Finally, after all these years, they tell us how to get some air on a broomstick.

17. Sadly, giant, talking turtles are hard to come by, so you’ve got to get creative.

18. Who knew it was so easy to make a monkey out of you?

19. It’s time to put on the air conditioner!

20. This has got to be the easiest way to lose weight.

Bonus: People can have fun even in-between shots.

Do you know any other tricks filmmakers use to make their movies even more impressive? Let us know!

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