Everything you always wanted to know about a government shutdown

January 19, 2018

Now that the specter of a government shutdown is (once again) upon us, it’s probably a good idea to review what that actually means. I’ll do it question and answer style, hopefully in a way that seems natural.

What the heck is a “shutdown”?

The actual term is “funding gap” or “lapse in appropriations.” According to Article I, section 9 of the Constitution, no money can be drawn from the Treasury, except under appropriation made by law. That is, to say, the government can only spend money that it has been authorized to spend by law. And laws must be passed by Congress. So if the current appropriations expire and no new ones have been passed by Congress, then no money can be drawn from the Treasury. And that means, in the broadest sense, the government can’t pay for anything — salaries, supplies, etc. Which means, more or less, that the government has to cease operations, or shut down. As Matt Fuller reminded everyone yesterday, “shutdown” is a noun, don’t use it as a verb.

What do you mean “expire”?

Whenever Congress appropriates money, they indicate what period of time the money can be used. The vast majority of appropriations are annual, meaning they are for the period of one fiscal year. Some appropriations, such as money for construction projects, might be appropriated as multi-year. And some money appropriated by Congress is “no-year” money, meaning it can be spent at any time in the future, so long as it is used for its lawful purpose.

Annual appropriations are almost always provided by Congress for a period that runs from October 1 to September 30 of the following year. This is know as the fiscal year. Fiscal years are designated by the calendar year through which the appropriations provide for. So October 1, 2017 was the first day of Fiscal Year 2018, or FY2018.

Because Congress has not passed annual appropriations for FY2018, there may be a shutdown.

Wait, it’s January. Why are we dealing with this now?

Because Congress has been providing temporary FY2018 appropriations since October 1. There is another way to avoid a shutdown besides passing annual appropriations. And that is to pass what is called a continuing resolution (or CR), which is just a fancy term for a law that says, in effect, “money can be continued to be spent for a certain period of time while we work to get the annual appropriations bills passed.” Such a law can be written to cover any amount of time Congress desires. Indeed, a CR is just an appropriations bill of a different form.

CRs generally provide agencies with funding at the same rate they were receiving it in the previous year, in an across-the-board fashion. Sometimes an across-the-board rate reduction is included, or so-called anomalies that adjust individual accounts. But a CR, in principle and practice, is a very short law that works at an aggregate level and doesn’t consider details or changes in agency programs.

Congress has passed three such CRs this fiscal year. The first one provided funding from October 1 through December 8. The  second one provided funding through December 22. And the third one provided funding through January 19. It’s the expiration of the third one—at midnight tonight—that creates the possibility of a lapse in appropriations.

Note that Congress isn’t even considering passing actual FY2018 appropriations today; they are just considering another CR that would fund the government through February 16, with the hope that the appropriations bills could be completed by then.

So you could, in theory, have a CR that prevents an October 1 shutdown and goes through November 13, at which point a shutdown could start that lasts until a CR is passed on November 19, but then starts again on December 15 when that CR expires and goes until January 6 when full-year a appropriations are finally approved.  Indeed, this is exactly what happened in FY1996.

So when there is a shutdown, the whole government just stops operating?

Not exactly. Under the Constitution, no money can be drawn from from the Treasury. That is, no outlays of actual money to creditors. But the Constitution doesn’t prohibit the government from incurring obligations; the government is theoretically still free to enter into contracts, hire and employ labor, etc. They just can’t pay off these obligations. Kinda like if you had a credit card, but no ability to pay it at the end of the month because your checking account was frozen.

But my friend is a federal employee, and he’s not going to be allowed to go to work during a shutdown.

That’s right, because while the Constitution only prohibits disbursement, there’s a federal law (the Anti-Deficiency Act) that prohibits the obligation of federal money in the absence of an appropriation, with criminal penalties for agency heads who violate it. In effect, the ADA freezes the credit card, whereas the Constitution freezes the checking account. So if your friend’s agency had him come to work, it would be in violation of the Anti-Deficiency Act, because the agency would be obligating money without an appropriation, but it would not be in violation of the Constitution, because your friend’s salary would not be disbursed from the Treasury.

I don’t get this obligation / disbursement business. Explain.

When Congress appropriates money to an agency, it gives it to them as budget authority. That simply gives the agency an amount on a piece of paper, which is the amount of money that can legally obligate for lawful purposes. Say Congress provide $100 million in budget authority to an agency. It’s not like Treasury goes and dumps $100 million in cash or gold off at the agency. All the money is at Treasury.

So when the agency spends money, it doesn’t literally hand over cash to its employees or creditors, it simply enters into an obligation to pay them (be it salaries for employees or funds for capital purchases). The agency then notifies Treasury, and Treasury ultimately transfers the funds to the creditor.  I think the credit card / checking account analogy, while not actually perfect, is the best way to think about it. Congress gives each agency an amount on a credit card, which they are allowed to spend. But it’s all linked to one checking account, which is controlled by Treasury. The Constitution shuts off use of the checking account when no appropriation exists funding it. The Anti-Deficiency Act shuts off the credit card.

But now we’re back to the question: does the whole government just stop operating?

Nope. The Anti-Deficiency Act includes an exception for the “safety of human life or the protection of property.” Subsequent opinions of the Attorney General (found in appendices here), opinions of the DOJ Office of Legal Counsel, and guidance of GAO / Comptroller General have clarified what does and does not fall under this exception. In past shutdowns, OMB opinions have considered the following types of things to fall under the exception: military and national security, public safety such as air traffic control, care of patients in hospitals and prisoners in prisons (and wildlife at the national zoo), things necessary to protect federal property and continue the functions of the Treasury, and disaster relief, among other things. Under common sense interpretations, the heat can also be left on at federal buildings.

Don’t let all these exceptions distort the bottom line: if no appropriations bills have been enacted, the vast majority of  federal agencies will largely shut down, and sizable portion of the federal civilian workforce will be furloughed. You can see the percentages here.

Has this always been the case?

No. Prior to the Attorney General opinions in 1980 and 1981 (known as the Civiletti decisions), most agencies didn’t stop operating at all when there was a funding gap; they just liberally interpreted the ADA and decided Congress didn’t intend for them to cease operating. The 1980 and 1981 opinions took a much stricter view of the ADA; that’s really when the modern shutdowns began.

So some federal employees keep working and some do not?

Right. Those who must continue to go to work are called “excepted” (sometimes referred to as “essential.”) All others (“non-excepted” or “non-essential”) are furloughed.

Of course, this only applies if there is a lapse of appropriations; if a federal agency has a non-appropriated source of funding—such as a revenue stream they are, under law, allowed to draw money from—they can use that funding to avoid the need to shut down.

So the excepted employees still get paid?

Not during the shutdown. Remember, the exception only allows the government to obligate the money (i.e. put it on the credit card) without violating the Anti-deficiency Act. Until an appropriation is passed by law, the Constitution prohibits disbursement of the money by the Treasury. So yes, the soldiers will continue to work and continue to earn money, but they will not receive a check until an appropriation is passed by law. In effect, the government legally owes them money, but can’t pay them.

And the non-excepted employees will not get paid?

Yes and no. The government will not be incurring an obligation for the non-excepted employees, so they do not legally owe them anything. But in past shutdowns, Congress has typically passed legislation retroactively paying non-excepted federal employees for the period that they were furloughed.

What about transfer payments like Social Security?

Social Security is funded through a permanent appropriation, meaning that the benefits themselves are not affected by a shutdown. However, employees at the SSA could theoretically be non-excepted. In past shutdowns, OMB opinions have considered SSA employees required to process recipient benefits as excepted, and all checks have been sent out.

I thought there were usually 12 appropriations bills in Congress. What if half of them have passed?

You’d have a partial shutdown. The Constitution doesn’t require or concern itself with how Congress divides up its appropriations bills. If the State Department appropriations for FY2018 have been passed into law, then the shutdown doesn’t affect them whatsoever. This is not an uncommon situation; during the second shutdown in FY1996, some of the bills had been passed already. During the FY2014 shutdown in October 2013, some individual departments were funded and thus the shutdown ended for them.

Does the legislative branch operate during a shutdown?

If the Legislative Branch Appropriations Act is not passed, then the legislative branch is subject to the Anti-Deficiency Act and, of course, the Constitution. Under the 1980 and 1981 opinions of the Attorney General, and subsequent interpretations by GAO, there is an ADA exemption for employees involved in the performance of Constitutional duties of the president and Congress. This makes sense: it would be ridiculous to say the bill reading clerk in the House or the sergeant-at-arms in the Senate could not work when the reason they would be working would be to support the ending the shutdown and providing  the appropriations.

Members of Congress salaries’ are provided for by a permanent appropriation, so they never experience a funding lapse.

In the FY2014 shutdown, Congress left the decision of whether Hill staffers were necessary to the constitutional functioning of Congress to individual employing authority, which is most cases were the individual Members (in their offices) or committee chairs (for committee staff). Support services, such as the cafeterias, were not open. The Committee of House Administration provided detailed guidance on the matter in FY2014.

What about the Courts?

In general, the federal courts are subject to the Anti-Deficiency Act and obviously the Constitution. On a practical level, however, the courts have not had to deal with shutdowns because they have a large stream of non-appropriated funds: the filing fees paid by litigants and others accessing the court system. These fees provide enough of their annual budget such that even in the absence of an appropriations, the courts can go about two weeks without any disruption in activites. In FY2014, the courts operated more or less normally during the shutdown. If a prolonged shutdown occurred, court staff would ultimately have to be furloughed, which could result in postponement of litigation and also raise constitutional questions about due process and the speed of trials in criminal matters. The courts are obviously also affected by how a shutdown impacts the Department of Justice.

Federal judges are in an interesting situation in regard to a shutdown. Article III of the Constitution provides that judges shall “receive, for their Services, a Compensation, which shall not be diminished during their Continuance in Office.” This potentially creates a paradox in the constitution: treasury cannot constitutional disburse money, but the judges—in theory—must be paid. This has never been tested; because of the non-appropriated funds, no shutdown has ever affected the federal courts such that a payday for judges occurred under a lapse of judicial appropriations. It is actually pretty funny to imagine a federal judge bringing suit under the Article III and having the case being heard by … a federal judge. One obvious statutory fix for this would be to create a permanent appropriations for federal judge salaries. They are mandatory money anyway—constitutionally mandatory, that is—so it’s not like you’d be reducing any congressional power-of-the-purse authority.

How often have there been shutdowns?

There have been 16 lapses in appropriations of a day or longer since FY1977. The last three were two in FY1996, that lasted 5 and 21 days, respectively, and one in FY2014 that lasted 16 days. It’s not clear how many actual shutdowns there have been.

Wait, there’s a difference between a lapse in appropriations and a shutdown?

Yes, a pretty dramatic one.

Now you’re just fucking with us.

No, this important. A lapse in appropriations occurs as soon as Congress has not provided budget authority and Treasury cannot constitutionally disburse funds. But prior to the Civiletti opinions in 1980 and 1981, agencies generally continued to operate as normal during periods of expired appropriations. And even after the Civiletti opinions, many of the short lapses in appropriations did not result in agencies shutting down; the combination of the lapses occurring on weekends and the expectation that they would be resolved shortly led many agencies to take no action. It’s actually pretty hard to tell form the historical record what happened in most of the short funding lapses in the 1980s; some agencies began earnestly shutting down, others did nothing, some did something in between.

The only actual widescale shutdowns in the post-Civiletti era are two FY1996 shutdowns (5 days and 21 days) and the FY2014 shutdown (16 days).

Ok, so what does an agency do to actually “shut down”?

OMB provides clear guidance on the procedures for this in Circular No. A-11 and other public and non-public documents provided to agencies. Agencies are required to maintain contingency plans for funding gaps including decisions about what activities are exempt from the ADA and what employees will be furloughed or designated as exempted; OMB provides guidance for both short (less than 5 days) and longer lapses in appropriations. Once a lapse has occurred, agencies are not allowed to perform activities that would violate the ADA but must perform activities related to the orderly shut down of operations, including the formal furloughing of employees and the securing of federal records.

For many agencies, these orderly shutdown activities don’t occur until Monday if the lapse occurred after close of business on Friday.

Where can I learn more?

As always, my recommendation is to go the most recent CRS report on the topic (I used to be a co-author of it.) It has all the citations and links you could ever dream of to lead you to the primary source material you need to keep yourself busy for a whole weekend reading about this stuff.


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The debacle of the old congressional calendar or: how you know the Constitution wasn’t divinely inspired

January 3, 2018

Today is the start of the second session of the 115th Congress. Under the 20th amendment to the Constitution, Congress is directed to assemble at least once a year, at noon on January 3rd, unless by law they appoint a different day. The 20th amendment also specifies that the terms of the Representatives and Senators will henceforth begin at noon on January 3rd of odd-numbered years.

Why were all these changes necessary? What calendar did they use before the 20th amendment? What was wrong with that old calendar?

Put simply: the Framers screwed up the calendar. Badly. And their error had enormous consequences for 19th century politics.

There’s a tendency in popular political culture to assign the Framers a laughably extreme degree of reverence, one way or another. In one popular view, they’re treated as god-like figures who could do no wrong and wrote an infallible Constitution. In the other view, they’re or a bunch of rich elites who designed a self-serving barely-democratic government, which rigged the system against the common man and completely sidestepped the obvious moral question of the day.

Obviously, both of those views are silly. But it takes a fair amount of looking to find a more honest assessment of the Framers; that they were reasonably noble but still self-interested representatives, struggling to adjudicate complicated multi-dimensional issues of political power, with little precedent to guide them and no crystal ball to see an utterly unfathomable future, and through part skill and part luck they landed on a pretty darn good constitutional design, which turned out to have a pile of flaws but a basic stability that allowed a modern nation to emerge mostly unscathed, despite being born in the age of both industrial and democratic revolution.

But given the importance of today—the Constitutional meeting day of a new session of Congress—I’m going to focus on one of the flaws.

The ridiculous old federal calendar

Prior to the 20th amendment, the calendar was frustratingly out of sync, with serious consequences. In Article 1, section 4 of the Constitution, the framers wrote that the Congress “shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.” December was chosen, in part, because it was compatible with the agricultural calendar.

The problem arose when the terms of the Representatives, Senators, and President began on March 4, 1789. This created a peculiar situation: the first session of each Congress was set to begin in December of the odd-numbered years, with the Members having been elected a full 13-months prior, in November of the prior even-numbered year. Even worse, the second session of any Congress did not begin until December of the even-numbered year, after the elections had been held for the next Congress (generating the concept of the “lame duck”). Furthermore, the second session was known as the “short session” because it was only 3-months long, leaving little time to do anything besides the appropriations bills.

This had enormous ramifications in the 19th century: during any two-Congress presidential administration, both second sessions were lame ducks, and the first session of the second Congress was conducted with the presidential election looming. As David Potter has written, this tended toward the first-session of the first Congress of an administration being the only real chance for major legislative successes. Dilatory actions in the second session could produce large concessions, as the hard-deadline of March 3 loomed; indeed, an enormous amount of second-session legislation was signed on March 3, often with the President sitting in the Capitol racing to beat a midnight deadline.

Consider the 1860 election: Lincoln and the GOP won in November, with South Carolina seceding on December 20th, 1860. But Lincoln would not be inaugurated until March 4, and the new Congress was not scheduled to meet until December of 1861! (They actually met in special session called by Lincoln on July 4). Instead, a month after the election, Buchanan’s state of the union message was read in the early days of the second session of the 36th Congress, which was left to try to broker a solution to the secession crisis. And a repudiated administration was left to try to solve the winter crisis and developing stare down in Charleston harbor.

How did the Framers screw this up so badly?

So where did the March 4th date come from? Why didn’t the terms of the members coincide with the start date of the session, as they do now?

The framers screwed up.

Thy did not specify on which date the new government of the United States would begin, in part because it was not known how long the ratification of the Constitution would take in the states. Most likely, they thought the ratification of the Constitution would be complete by spring 1788, such that elections could be held during the summer, followed by the selection of Senators and Presidential electors, all in time for the government to begin on the first Monday of December 1788. That way, the terms of the President and Members would correspond to the constitutional calendar, with the first session of each Congress beginning at the same time.

However, the ninth state did not ratify the Constitution until the end of June 1788 and only 11 states had ratified by September. Since there was not enough time to hold elections and begin the new government in December of 1788, the Continental Congress was faced with an unappealing choice:  either delay the start of the still-fragile new government for an entire year (and begin in December 1789) or set a start date for the new government that did not coincide with the constitutionally-set calendar. So on September 13, 1788, the Continental Congress — based on the practical need for time to hold elections and select Presidential electors in the states, as well as a desire not to delay the new government for an entire year — specified the first Wednesday in January 1789 as the day for electors to be appointed in the states, the first Wednesday in February 1789 as the date for the electors to assemble and cast votes for President, and  the first Wednesday in March  as the start day for the new government.

This is a worse problem then it initially appears. Once the new government began on March 4th, the date could only be altered by Constitutional amendment, since the terms of the Representatives, Senators, and President were fixed at exactly two, six, and four years, respectively. (They couldn’t simply shorten the 1st Congress and start the terms of the 2nd Congress in December).  The only plausible remedy would be Constitutional amendment. What the Continental Congress should have done was originally make the date of the terms of the first Members retro-active to December 1788, allowing the 2nd Congress to be elected in summer 1790 and begin in December 1790; instead, the 2nd Congress was elected in summer/Fall 1790, the 1st Congress had its second session beginning in December 1790, the 2nd Congress began its term in March 1791, and the 2nd Congress’s first session began in December 1791.

Had the original vision of the Founders been in place in 1860, Lincoln and the newly elected Congress would have taken control in December 1860, prior to South Carolina secession, and months before Fort McHenry had been rendered a showdown by the inaction of the Buchanan administration and the stalemate in the second session of the 36th Congress. This is not to say that calendar caused the war. But it certainly didn’t help.

The 20th amendment

There’s a folklore belief that the delay between FDR’s election and the his inauguration was what spurred the amendment into being, but that’s largely urban legend: similar proposed amendments had passed the Senate every Congress since 1923, and the successful amendment was out of Congress well prior to the 1932 election, with specific language that it would not go into effect, even if passed, in time for the 73rd Congress.

Why didn’t they fix the problem earlier? One possibility was the old Senate: prior to the ratification of the 17th amendment in 1913, action by the state legislature was needed to pick Senators. But virtually all state legislatures held their sessions early in the calendar year, after Fall elections. If the federal calendar was adjusted to pull the terms of Members back from March into December, there was a real possibility of a large number of absent Senators in the first session, the state legislatures having not yet met.

Well, what about adjusting the start date of the session to match the March 4 term date? That was not possible, either, for an even more basic reason: the weather. I’ll let the Senate Committee on the Judiciary explain that:

[It is true that you could have a session] after the 4th of March, but [this would] not give the new Congress very much time for the consideration of important national questions before the summer heat in the Capital City makes even existence difficult and good work almost impossible. it is conceded by all that the best time for legislatures to do work is during the winter months. Practically all the States of the Union recognize this fact and provide for the meeting of their legislatures near the 1st of January.

More evidence for Nelson Polsby’s air-conditioning theory of American politics!

When the 20th amendment was drawn up and ratified, it also fixed a nagging secondary problem of the old calendar: since the President’s term and the congressional terms were identical, in any case where no one got a majority of the electoral votes and thus Presidential selection was handed to the House, it was the old outgoing House that got to vote, which made little sense. Under the 20th amendment, the Presidential term begins 18 days after the term of the new Congress, allowing the incoming House to choose the President in such a situation.


Max Farrand and David Maydole Matteson, The Records of the Federal Convention of 1787, vol. 2 (New Haven: Yale University Press, 1966), pp. 197-202 (August 8, 1787).

Worthington C. Ford, ed.,  Journals of the Continental Congress, 1774-1789, vol. 34 (Washington, D.C., 1904-37), pp. 522-523.

Potter, David. The Impending Crisis, 1848-1861, Harper (1977).

United States Congress, Senate, S. Rep. No. 26, 72d Cong., 1st Sess. (Washington: GPO, 1932).

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Primaries, All The Way Down

September 28, 2017

Senator Strange will not be back in Washington next year. Senator Corker will not be here in 2019. And Senator Flake may not be either.

What do these three GOP Senators have in common?

The primary system. Senator Strange was beaten by it. Senator Corker got scared into retirement by it. And Senator Flake is gearing up to be challenged by it.

As Anthony King wrote 20 years ago in his wonderful article The Vulnerable American Politician, the U.S. electoral system is an outlier among democracies in creating unsafe incumbent politicians. American legislators face more elections than politicians in other countries, they are forced to raise their own money for campaigns, they must succumb to nomination challenges via ballot, and the weak American parties provide them little cover from constituents angry at their policy choices. King described many of the well-known consequences of this reality: members are hyperresponsive to consituents, have short 2-year time horizons for policy decisions, spend lots of time raising money, and often bring a risk-averse outlook toward tough policy decisions.

What is fascinating in the contemporary political environment is that many members of Congress occupy districts where their main vulnerability is not in the general election, but in the primary. The rise of so-called “safe seats” is a well identified trend going back over a generation; Mayhew identified his vanishing marginals in 1974. But the safe seat designation is a misnomer; the seats are only safe in the general election. Members are secure only to the degree they can forestall a credible primary challenger on the left (if they are a Democrat) or the right (if they are a Republican). And so Members vulnerable to these challenges spend a lot of time positioning themselves as solid liberals and conservatives.

The interesting developments are on the right. Since 2010, conservative politicians have increasingly run and won elections by tapping into voter and activist anti-Washington and anti-establishment sentiment in these safe districts. Sometimes they have defeated incumbents for nominations and won general elections (Mike Lee; probably Roy Moore); other times they have won open-seat primaries just to lose to Democrats in otherwise winnable seats (O’Donnell in Delaware; Angle in Nevada); sometimes they have unseated incumbents in primaries and gone on to lose general elections (Mourdock over Lugar in Indiana). The threat of such a challenge may also scare incumbents into retirement, who would rather go out on their own terms than face an embarrassing primary loss.

As the GOP base moves further to the right in its anti-Washington and anti-establishment thinking, the trend appears to be accelerating. After the victory by Moore over Strange this week, Steve Bannon has pledged to begin recruiting primary challengers across the country, in an effort unseat GOP incumbents who are not sufficiently populist or anti-establishment. In addition to Corker’s seat and the challenge to Flake, this may add Senator Wicker (MS) to the target list and a host of moderate House Republicans.

The dilemma for many incumbent GOP legislators is stark. Part of the attack upon them is that they are insufficiently anti-establishment, evidenced by the fact that they are too cozy with the congressional leaders. But defining the congressional leadership as tantamout to “the establisment” eates an intractable problem under the populist never-compromise ideology of the far right. Leaders in Washington *have* to compromise, because our system of government demands it; the only other choice is to get nothing done. So each GOP incumbent is in the uncomfortable spot of potentially facing a primary challenger who will accuse them of cozying up to the leadership and selling out to the establishment, all the while knowing that the only choices they have in DC are to either work with the leadership to accomplish things or join the chorus of anti-establishment attacks that make headlines but accomplish little concrete policy.

I was discussing this (in more simple terms) with my 9-year old last night, and it dawned on her that there’s a serious recursive problem here. You can win a primary and defeat an incumbent, but the moment you attempt to work with the leadership, you will yourself be exposed to a primary challenge on *your* right, as you have now become a compromising member of the establishment. To some degree, this is true almost regardless of ideology; once the leadership in Washington has become the hated establishment, it becomes in some ways its own substitute for ideology. The deals themselves are the enemy.

Of course, this is even more plainly true for the leaders, who are stuck in a similar game with their conferences. You can remove them (Boehner; maybe Ryan and McConnell), but anyone who takes the job will instantly be forced to make deals and become part of the establishment. And so you have the recursive problem facing both sides of the GOP right now; neither the leaders or followers can cut deals in Washington without exposing themselves to someone’s wrath. The rank-and-file are scared of the primary challengers, and the leaders are scared of the rank-and-file.

There’s an old belief that the world is flat, and lays on the back of a turtle, who himself is standing on a larger turtle. When the curious student asks the teacher what the larger turtle is standing on, he is met with a terse response. “It’s turtles, all the way down.” As we stand at the beginning of the 2018 primary preseason, you may be tempted to ask a similar question to the one my daughter posed last night. Where does this end?

Quite possibly, it’s primaries, all the way down.



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The Politics of Puerto Rico Disaster Aid

September 26, 2017

It has dawned on many people this week that the devastating hurricane that has hit Puerto Rico is not getting as much attention as those that recently hit Florida or Texas. Likewise, the U.S. response to the hurricane in Puerto Rico has been slow, and a relief package does not appear to be a congressional priority in the same way it was for the previous two hurricanes this season.

Why is that?

A lot of theories are being thrown around. I wrote my dissertation on territorial politics, so I have some relevant knowledge (although I don’t really think this is about territorial politics, per se). Here are seven things that I think are relevant to the situation.

1. Most disaster relief spending is contested, and it can also wear on Congress. Most Members of Congress agree that substantial emergency disaster relief is a reasonable congressional response to hurricanes, but some Members believe disaster relief should be paid for or otherwise offset up front, either on principle or as a specific leverage opportunity to cut spending. You saw this with Sandy, and Harvey, and Irma. It’s not like a hurricane that hits the mainland doesn’t generate contest in Congress over relief. And like most congressional spending, there’s a weariness to it. As the third hurricane, some Members are going to become *more* concerned about the deficit spending, even if that is, in principle, irrational.

2. Puerto Rico has no Senators or Representatives. This is the factor you hear about if you turn Twitter on. And it is certainly true that territories, in general, tend to get less distributional benefits than states. The connection is obvious. But I also think the mechanism isn’t quite as obvious as people think. Three Representatives don’t carry much weight in the House, certainly not enough to leverage those votes as a bloc. Two Senators is better—individuals in the Senate can cause all sorts of procedural problems and thus generally have more leverage—but it’s still not, on its own as a pair of votes, that much leverage.

The more hidden advantage of having Senators and Representatives is that (1) it creates official advocates who will make disaster relief their singular intense priority immediately and continuously; and (2) it creates personal relationships between these advocates and other Members of Congress, relationships that have both a history and a future. Right now, there’s no Senator with a direct constituent concern for Puerto Rico, nor any Senator with a personal relationship with such a Senator. Those things matter, perhaps as much or more than a few votes on the floor. But the most important reason it would help PR to have Senators is…

3. Many Americans don’t see PR as part of the United States. For better or worse, people are going to be more willing to support disaster relief for places that are in the United States than they are for random places in the world. Most Americans probably think of Puerto Rico as somewhere between “part of the United States” and “some random place in the world.” If Puerto Rico has two Senators and its full complement of Representatives (probably 3), it would unmistakably be part of the United States (like Hawaii) and many Americans would be more likely to see people who live there as part of the shared community in which they are obliged to support disaster relief, without question. Presumably, many Americans don’t realize Puerto Rican citizens are U.S. citizens. That can’t help. It would unambiguously be an island with millions of U.S. citizens  if it was as state and had full representation in Congress.

4. Puerto Rico *isn’t* part of the U.S. the way the Arizona Territory was. The relationship between the U.S. and its external territories, especially Puerto Rico, is complicated. Puerto Rican citizens are U.S. citizens, pay social security taxes, and have rights to move to the mainland at any time. On the other hand, most don’t pay federal income taxes, they can’t vote in the presidential election, and they don’t have a traditional territorial government (for instance, the governor is elected by the people rather than appointed by POTUS). They also have a political and cultural history distinct from the United States. So relative to the mainland territories of the 19th and early 20th centuries, Puerto Rico is somewhat more like “some random place in the world.”

5. Racism. I have no doubt that one factor related to all of this is that Puerto Rico has a large non-white population (the exact demographics are tough to know, because self reporting of white/Mestizo/Latino/mixed is a complication). To what degree this is an independent factor rather than just an input into why people don’t see PR as part of the United States is hard to discern. After all, Hawaii has a non-white supermajority, and while that probably creates some hostility from those on the mainland, it doesn’t seem to be a driving factor in distributional politics against the state. The official languages of Puerto Rico are Spanish and English, but Spanish is spoken by the vast majority of the population. This creates further cultural divides between the island and the mainland, and may create additional cultural racism.

6. Media Infrastructure. One problem after the hurricane was that there was little or no U.S. media on the island to report back pictures or video of the devastation. This is in part derivative of the already-mentioned factors, particularly the Spanish language culture and the “foreign” perception of the island, but also because it is, well, an island. It’s not an easy place to get to; if a hurricane wiped out  Chicago, you’d have camera crews driving in from everywhere to let people know about it. If an island goes down in the Caribbean and loses communications, it’s just not easy to get there quickly with the infrastructure to do good immediate reporting.

7. Presidential leadership, or lack thereof. If the President was more interested in the devastation in Puerto Rico, there would have been much more attention paid and a much quicker response. But he wasn’t/isn’t and so there wasn’t. As Jonathan Bernstein pointed out this morning, the president spent the weekend fighting with the NFL and when he finally got around to Puerto Rico, he sort of blamed their debt crisis for their predicament. This stands in contrast to his statements and actions after Harvey and Irma, which were normal and well-received, if not particularly distinguishing. Nothing has the power to focus politics on a particular event like the bully-pulpit of the president. Trump’s lack of agenda control has been obvious for a while, and as in other cases it’s not clear whether it’s odd strategic choices, incompetence, or just a lack of message discipline.

Of the seven items on this list, I think the fundamental one is #3, that most Americans don’t see Puerto Rico as part of their national community. Of course, as discussed above many of the items are endogenous and so I definitely agree that if Puerto Rico had Senators, PR would be seen as part of the community and we would have had quicker and more decisive relief action. I’m hopeful that Puerto Rico will ultimately receive a similar package of aid to what Texas and Florida get, but I’m not holding my breath. Opponents will probably do some foot-dragging, and the fact that Puerto Rico *is* exempt from a fair amount of federal taxation does create a slim-reed of an argument that this is in some ways foreign aid and the Puerto Ricans less deserving of our help than the Floridians. But remember, Puerto Rico is a devastatingly poor place (it would be the poorest state per capita if it was a state) within the United States, and for that reason alone it probably deserves more of our federal generosity during a disaster than more prosperous areas of the country.



FIVE POINTS: Wake Me Up When September Ends

August 25, 2017

1. Six weeks from now, we will know a lot more about where American politics is heading. The September agenda in Congress is packed. I drew this flowchart a few days ago to lay out some of the big pieces of the agenda:

Some of the agenda consists of so-call Must Pass items: legislation that, if not approved or otherwise dealt with, would have large negative substantive or political consequences. These include raising the debt limit (to avoid default), passing appropriations for FY2018 (to avoid a government shutdown), and reauthorizing the Children’s Health Insurance Program (to avoid a large number of kids losing health insurance). By their very nature, must-pass items create a very different politics than other issues (such as health care repeal or tax reform); once the status-quo is not an option, everyone who is a player in the game—individual Senators, coalitions of Members, interest groups—shifts their focus to getting their stuff into the bill. And skillful brinksmanship becomes a negotiating asset.

The thing to remember—and one thing my flowchart doesn’t really capture—is that cross-issue bargaining is a huge part of negotiations over must-pass agenda items. You shouldn’t expect any of these issues to be partitioned off into discrete negotiations. And that includes items that aren’t must-pass. Undoubtedly, the BCA caps on discretionary spending will be involved in the negotiations, and perhaps health care and/or tax reform. And looming in the background is the FY2018 budget resolution. As shown in the flowchart, some of these issues are literally connected, because they are procedurally connected; the GOP can’t do party-line tax reform without a budget resolution, and there’s no way the FY2018 appropriations are going to pass without raising the BCA caps. But all of the items are really connected, because Members/parties/interests can withhold support on one to gain leverage on another. This is standard in any legislature (or really any bargaining situation) but a lot of people overlook it.

There has been a tendency to compare September to some of the previous must-pass showdowns over appropriations and the debt limit in the last five years, in which the main players were Obama, Boehner, House conservatives, and Senate compromisers. In many of those interactions, a familiar pattern appeared: Speaker Boehner would pass a very conservative party-line package through the House to allow conservatives to lay down a marker and show off to their constituencies; then Obama, Boehner, and Senate compromisers would cut the actual deal and pass it through the Senate; finally, Boehner would jam the House conservatives by bringing the deal to the floor and pass it using a fair number of Democratic centrist votes, with wings of both parties voting against it and the Speaker graciously taking substantial heat from the right. Many people, including me, expect the politics of September to resemble this. But there are complications:

  • It’s not obvious President Trump is on the side of the compromisers (see below);
  • It’s not obvious Speaker Ryan is prepared to play the whipping boy role Boehner was so good at but that may have ultimately cost him the Speakership;
  • It’s not obvious the Democrats have as much incentive to compromise; and
  • It’s not obvious the conservatives are going to settle for base-pleasing optics paired with substantively losing now that they have a psuedo-ally in the White House

We simply don’t know what is going to happen, on many levels. There’s the substantive level of, on balance, who wins the negotiations (border wall?). There’s the future political ramifications of who does well with the constituent and national optics (2018 ramifications?). There’s the internal ramifications of how the process of negotiation affects the coalitions (wither Speaker Ryan?). There’s the future leverage of various factions (does anyone feel the need to prove resolve by blowing things up?)  And there’s the institutional ramifications for the branches (Does POTUS or Congress come out looking small?).

2. The President’s legislative strategy looks very high risk. The more I watch how President Trump is approaching the legislative arena, the more I realize how much of his strategy revolves around a few key attributes of his:

  • he’s very hesitant to look weak or appear to have “lost”;
  • he doesn’t know much about policy and he’s not really interested in it;
  • he doesn’t really like negotiating that much, at least not in the political realm.

These things are leading to what appears to be a high-risk strategy. He has drawn some pretty serious lines in the sand—most notably his insistence that he’ll shut down the government if the FY2018 appropriations don’t include border wall funding—and he is absolutely blasting Senators from his own party in public right when he probably would be wise to be courting their assistance on the September agenda.

One way to think about this is to consider Sam Kernell’s well-known critique of Neustadt. For Neustadt, there were two resevoirs of presidential power: professional reputation in DC, and public prestige in the nation. The former was much more important; a POTUS with a reputation as a winner and a skilled bargainer could manipulate the DC coalitions and expect to greatly influence public policy while augmenting his own power.

Public prestige, for Neustadt, was a much more blunt and less useful tool; the president could occasionally appeal to the public and try to influence Congress, but it was a poor second choice. It didn’t work well, it pissed off Members of Congress, and it did nothing to influence the many political actors who were well-insulated from the voters. It could help—IKE’s popularity certainly wasn’t a bad thing—but it could never be the basis of power.

Kernell’s thesis was that, by the 1980’s, the traditional bases of power had broken down and fractured in DC, such that bargaining was no longer a particularly attractive or effective options for a President. Instead, there was an increasing incentive to “Go Public” and try to influence outcomes by turning voters against your opposition, effectively going over the heads of your negotiating adversaries and attempting to get the public to brownbeat them into submission. Given that, public prestige—your standing among the voters—became much more important than your professional reputation in Washington.

Plenty of presidents have tried “going public,” with varying degrees of success. Trump seems to be taking the idea to 11. It really looks like he is rolling everything into one great 2018 Hail Mary referendum on his dominance of federal politics: he keeps lashing out publicly at anyone and everyone, Democrat or Republican, who even mildly gets in his way. Jeff Flake. Bob Corker. Paul Ryan. Mitch McConnel. Chuck Schumer. Richard Bluemental.

This is quite obviously not the way to ingratiate yourself as a bargainer who wants to careful negotiate policy and build a professional reputation in DC. This is someone who is hoping (perhaps just implicitly) that he can activate the public to punish anyone who stands in his way. The happy outcome for Trump might be something like Flake and Corker losing primaries in 2018 to Trump-loyalists who hold the seats, or perhaps McConnell being deposed as majority leader. It just seems like a triple bank-shot, certainly with a lot of upside if successful, but very little actual chance of success. Of course…

3. The other side of this is the fixation on dominance politics. I noticed this morning that the administration is now saying it’s not going to release an actual tax plan, and instead leave it up to the House Ways and Means Committee and the Senate Finance Committee to come up with the actual details of the proposal.  Most people are going to see this as either (1) reflective of White House incompetence; or (2) reflective of Trump’s disinterest in policy details and obsession with just winning. Both of these makes sense. The saga that was the repeal of Obamacare seems like good evidence for both of them.

But I’d like to propose a third option: maybe Trump’s personality and need to maintain his public image of dominance makes him allergic to the very idea of negotiation and compromise. If you don’t come up with detailed White House proposals, you don’t ever have to retreat from your ideal position in order to craft a half loaf of incremental progress. You don’t ever have to negotiate away things you’d really like in order to secure a victory. And, of course, you don’t ever have to learn policy details. If you can’t stomach the idea of having to admit you didn’t win everything you said you would win, perhaps the easiest move is to let someone else decide what is and isn’t winnable before you endorse it.

One problem with this, as it turns out, is that the president’s legislative efforts are endogenous to whether or not he “wins.” Trump likes to win, but the absence of presidential leadership is a huge impediment to winning in the legislative sphere. Sure, you can go for a dubious optics victory: let the Hill GOP come up with a plan, half-heartedly push for it in public, and then blame the Senate Democrats when it fails. But if you want to achieve positive, purposeful policy change in the U.S. system, presidential involvement is, by and large, a required ingredient. And so you sort of get a self-fulfilling prophecy here with Trump: he wants to win and doesn’t really care about policy, but he’s scared of looking weak for having compromised away from his starting negotiating position, so he withdraws from the policy arena and leaves it to others, and the absence of the president from the process reduces greatly the chance of success.

4. The White House is probably dreading the hurricane in Texas. I mentioned last week that events have a funny way of getting in the way of everything on the agenda at the White House. Hurricane Harvey will be no different. In fact, hurricanes (and other natural disasters) have proven to be particularly tough political events for presidents to negotiate. It’s a situation that calls for the public skills of a different kind of executive: namely, a mayor. Someone who responds personally to events and gets in the trenches to help out. And anyone who’s seen a good mayor in action knows exactly how this goes: he goes out with the first-responders and does hours—or even days—of good old fashioned labor. Piling up sandbags. Handing out meals at a relief shelter. Cleaning up garbage and damage. Being in personal public communication with the chief of police and the head of the fire department. Being visible at the scene, not just as an observer, but as an administrator. The optics are simple: this is a community response and I’m not only the leader of the community, but also an ordinary member of it. Not only am I coordinating this response, but I’m also literally executing it.  And it works. Mayors do stuff in this mode every week. It’s not always a emergency, but it’s always leader-on-the-ground.

The president (any president), however, is not the mayor of the nation. He’s too far removed from the front-lines of the first responders. In fact, he’s too far removed from the coordination of the relief effort. His relevant job is to manage a top-level bureaucracy, position the appropriate personnel, make high-level policy decisions when presented with options, and produce accountability by firing people when things go wrong. Even if the president wanted to behave like a mayor in the wake of hurricane, it’s a nightmare: if he shows up on the scene he can’t really help, because he travels with an entourage the size of a football team and creates a massive media circus wherever he goes. So presidents often look unusually helpless in the wake of natural disasters. Bush in Katrina is a great example. His father’s response to hurricane Andrew was’t much better. It’s just really tricky to figure out how to not appear totally aloof and uncaring, but also to not get criticized for getting in the way and/or trying to capitalize on the politics.

Of course, substance matters as much as optics. But you’ll never really know. The federal government might provide an excellent response to Harvey, with the machinery running smoothly and minimizing the suffering for people to the maximum extent possible. And the president may even have a personal hand in that through his control of the bureaucracy. But that will never be the story. Because the White House role in a hurricane, as a optics matter, is to be the mayor. But the job simply doesn’t allow it. And so they muddle through.

5. Jeff Blair started a music podcast.  You might know him as a political writer at Decision Desk HQ, but he’s also a wonderful encyclopedia of knowledge about all sorts of popular music. His tweetstorms on various bands are epic. Elton John. The Beach Boys.  Mott the Hoople. And now’s he’s doing a podcast over at National Review where he’s bringing in a political commentator each week, but only talking about their favorite band. Sean Trende was the first guest, and the band was—wait for it—Van Halen.

Now we’re fucking talking.

Three quick points in response to the podcast: first, they are correct that Van Halen I and 1984 are the two best Van Halen albums. But VH I is way better than 1984. I don’t think it’s particularly close. And that’s before you remember that Van Halen I doesn’t sound particularly revolutionary now, because every band for 15 years tried to copy it. And while many came close, no one really topped it. It’s like A New Hope. You think those special effects look good *now*?

Second, they never really discuss one of the keys to Van Halen. They talk about how great EVH is at guitar, and they talk about the showmanship of DLR, but one of the unique aspect of Van Halen is the combination of hard rock and harmonized vocals. It’s great to have the best guitarist in the world and a top rock showman, and that’s undoubtedly why no one could copy Van Halen. But what makes a song like Feel Your Love Tonight pop is the harmonies.


Finally, I dislike Van Hagar as much as the podcast guests do. But I do think Top of the World is a gem of a song.

See you next time (probably end of next week). Thanks for reading!

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Hello, World. Again.

August 22, 2017

Well, it’s been a long time since I’ve been at the helm of this ship. Here we go. Wheeeeeee….

I’ve been thinking a lot lately about congressional organization and capacity.  You can’t really swing a dead cat in Washington right now without hitting someone who’s writing about the decreased capacity of Congress or their plans to fix it. I also just finished reading Josh Chafetz’s magisterial new book, Congress’s Constitution, and he devotes an entire chapter to how internal chamber rules within Congress affect the external power of Congress in separation of powers battles with the President and the Courts.  And, of course, it’s also my job to write about this stuff.

But mostly I’ve been pondering the current state of affairs, in that we’ve found ourselves in a pretty unprecedented institutional situation right now: strongly polarized parties in combination with a strong institutional presidency. Now, we’ve certainly had polarized parties before. And through much of the 19th century we had polarized parties in combination with a weak institutional presidency. But in the age of the modern, powerful presidency—say, post-1939, after the EOP is created and the President has become the head of a large executive branch—we really haven’t had the sort of party polarization that characterized much of the 19th century. At least not until the most immediate past.

And this has all sorts of implications. Here’s three that I’ve been thinking about:

First, the institutional presidency seems relatively resilient to perceptions of failure or aggrandizement. And I think this is because presidential failure and aggrandizement tends to attach to the individual rather than the institution. I can so clearly remember in 2008 how many liberals were aghast at the state of affairs in the Bush administration—the wars, the torture, the rendition, the Patriot Act, and so on—but refused to see it as problem of the presidency and instead were convinced that it was a problem of the president. The thinking was that if they could just get the right man into the office, everything would be fine. And it was and it wasn’t. Obama certainly made them feel better about the presidency but, on balance, did precious little to hem in the national security state that had them so worried under Bush. It’s not hard to draw up a parallel both going into the 2016 election (for Republicans) and looking forward now for many liberals and a fair number of Republicans. If we can just get Trump out of office and [favorite candidate X] into it, everything will be fine.

Congress doesn’t really attach that way. Start with the Fenno paradox. Despite the absurdly low ratings of the institution, most people like their Congressman! When people say Congress is dysfunctional, they typically aren’t thinking that they have agency to replace a Member and fix it. They really mean Congress—the institution—is dysfunctional. The public is only dimly aware of Members beyond their own, but even in the case where leaders are treated as individual failures by the public, the solution rarely becomes a personnel change. It’s true that many people believe that a takeover of Congress by their party would improve it’s output, but this is almost always at the substantive policy level. I don’t know that I’ve ever heard someone say if we could just get [my preferred politician] into the Speaker’s office, congressional dysfunction will melt away.

And this imbalance between executive branch dysfunction being pinned on the person and congressional function being pinned on the institution has serious ramifications. If you take seriously—as I do—the idea of a public sphere of battle between the branches (as articulated by Chafetz and some others), this works squarely against Congress.  If the institutional balance of power hangs at least partially on the ability of the branches to muster their resources to affect public opinion about the proper division of power between the executive and Congress, the personification of the presidency and the dehumnaization of Congress in the mind of citizens will often lead to (1) hopelessness about Congressional power; and (2) continued belief that executive branch problems are individual flaws of the president; and (3) giving power to the presidency is ok so long as we personally find him competent/likeable/our guy.

Second, the Wilsonian model of congressional reform is a dream scenario for the modern presidency. In brief, Woodrow Wilson was the first of many to articulate a parliamentary-style fix for separation of powers system: strong disciplined congressional parties that treated Congress like an “arena” legislature, merely a location of lawmaking, rather than a transformative institution that developed, negotiated, and compromised legislation. Under this view, parties and executive branch leaders would take over those policy functions, while chamber rules would be streamlined and congressional leaders strengthened so that the existing veto points (committees, filibuster, etc.) would melt away and allow for party government. Versions of this argument have circulated in the U.S. consistently since Wilson’s time, and can even be heard today: the path forward from gridlock is to kill the filibuster and strengthen the congressional leaders so they can ram through party policies, ending the gridlock.

Whatever the substantive merits, this would be a disaster for Congress the institution. Maybe in the days of strong party leaders and a weak presidency, this might have worked. But under the trappings of the modern presidency, there is simply no chance anyone but POTUS would be the party leader in charge of such a majority, and the necessary hollowing out and streamlining of Congress required to grease the skids for party government would simultaneously all but end executive branch oversight. The scary thing for Congress is that the Wilsonian model is not just popular among many observers and practitioners when their party has unified control—that’s understandable situational institutionalism—but also has proven generally popular, especially under divided government. Take Gingrich in 1995. There’s just an incredible lure to centralizing congressional power. Certainly it has some internal positives in being able to move policy and get a party to look discipline and effective as passing legislation. But in order to achieve it, the hallmarks of congressional capacity must be abolished. And thus the Gingrich attacks to weaken the committee chairs, set aside CBO, damage the seniority system, and gut committee staff.

There’s undoubtedly an allure here. After all, if you could centralize Congress to an absurd degree, you could bring the President to his knees. Centralization could create a more powerful Congress. Imagine a Congress with literally all power centralized in the Speaker. Everyone in both chambers will vote for whatever the Speaker wants. That would effectively abolish the veto, giving the President no leverage in domestic legislation. The Speaker could redesign the bureaucracy at will, adjust all funding levels by fiat, and even remove the president at any time. But it’s a pipe dream: centralization can never practically achieve that, and on it’s way to trying, it ends up killing congressional capacity.

The alternative mode of congressional reform is the obvious one: reinvest in congressional capacity to reshape the balance of power between the branches. Add committee staff and conduct more oversight; distribute power to create more veto points for the executive to navigate. Beef up non-partisan institutions to reduce reliance on executive and executive-allied information. Equip individual Members with more resources so they can promote homegrown ideas in the public sphere. Pay staff better to attract experts who can give serious scrutiny to external proposals, be it from the White House or from downtown. In other words, insulate Congress such that it can self-generate quality policy and reduce its reliance on the president. In any case, don’t succumb to the idea that a gridlocked policy process in Congress can only be solved by a hollowed-out Congress. It’s a trap.

Finally, I’d note we actually have a third dimension variable here right now with Trump. It’s not just polarized parties in the age of the strong presidency. It’s also polarized parties in the age of the strong presidency with a very, very weak president. I continue to believe that the Neustadt interpretation of the Trump presidency is the correct one: this is a very weak POTUS, who will have little ability (relative to other presidents) to achieve his policy goals, or to legitimate the actions does achieve. His professional reputation is terrible; no one in his party is scared to speak out against him, let alone go on TV and defend him carte blance. He has few friends on the Hill; if they aren’t quite rooting for him to fail, they aren’t exactly lending a hand. The White House is a mess; he’s fired a laundry-list of senior staffers with no sign of control coming, he has seemingly no control over the bureaucracy as a policy process or even just to prevent leaks. His skill set seems totally wrong for the job. And in a role where one needs hundreds of people to help you if only because they think it is in their best interest, more people are walking away than stepping up. And his public approval is in the garbage. This isn’t a recipe for significant power in Washington or policy achievements; this is a recipe for a complete failed presidency.

But I’m really not sure what this means for the presidency. I certainly think no one will blame the presidency for Trump’s shortcomings (see my first point above today); any executive failures in this administration are going to publicly attach to Trump for sure. The Democrats will undoubtedly make competence an issue in any election involving Trump, and don’t be surprised if there’s a Republican primary challenger to Trump—particularly a very conservative one—making much the same argument. But the larger question is really twofold: first, will the Trump administration makes such a dog’s breakfast of governance that a significant portion of the population comes to view it as not just a question of getting the right man in office, but also as a question of rearranging congressional/executive power because it has become apparent it’s too risky to put so much power in the executive. You can see the strands of this in congressional proposals to limit the use of the nuclear arsenal. In my mind, those aren’t really about Trump; those are about the realization, via Trump, that the presidency should have that power at it’s unilateral disposal.

Second, absent that sort of public clamor, is it possible Congress simply is forced to step up and assert power in the vacuum created by an incompetent White House? This goes less to hard statutory powers like nuclear weapons use and more to softer powers like control of the agenda. You see some signs of this in the health care debacle from last month; with the president MIA, the driving forces of the legislation were left to come from Congress. And they did and they didn’t. But I think in this instance, Congress was still a step behind the game; it was really the proof-of-concept that Trump wasn’t going to be able to lead a serious policy push, and would at best be a neutral factor, if not a negative one. And so it remains to be seen whether Congress steps up in the absence of the White House serving as driving and coordinating principle for policy. Maybe the White House will get its act together (I suspect they will do better on tax than health care), but I still find it hard to imagine POTUS himself being a driving policy figure in private or public. And maybe even if Congress did step up to a new sort of policy leadership role, it would only be temporarily. Unlike the nuclear weapons usage possibility, it’s entirely reasonable to think things might revert under a new presidency. But we don’t know; only time will tell.

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Elecshun Dae 2016

November 7, 2016

My 26-point layman’s guide to getting your politics junkie on tomorrow:

In the morning (7 action items)

1) Do not — under any circumstances — turn on your television prior to 6pm EST. This isn’t specific to the morning, but it has to be first, because it’s absolutely crucial. The only thing worse than the election night coverage on the cable news networks is the election day coverage on the cable news networks. And trailing right behind those two things is the douchebag in your office who watched the Today show on election morning and is now repeating the same drivel outside your cubicle. Don’t be that guy.

In case you are tempted at any point in the day, I’ll save you the time by summing up the coverage for you here: worthless anecdotes about turnout; analysis of rainy weather forecasts that supposedly affect turnout but actually do not; “explanations” of the “science” of exit-polling and election prediction; interviews with senior citizens who voted at 11am in the Midwest; set pieces like “36 years ago this week” about past elections;  meta-narratives about the parties probable reactions to a 5-seat swing in the House vs. a 15-seat swing; exposés on campaign financing, voter turnout, and enthusiasm; editorials on what the election “means,” whether this is a “change” election, a “wave” election, or a “turnout” election; stories about the parties angling with teams of lawyers to oversee recounts; worries on the left and right about voter fraud and voter suppression; some blair-witch style youtube video showing something allegedly wrong; debates over whether this is 1988 or 2008 or neither; debates over divided government and gridlock; anecdotal profiles about who the independents are voting for; questions about why aren’t there more moderates; polemics on whether the Trump followers will have an impact in DC during the lame-duck, whether the Trump followers will be a force in politics for much longer, and whether the Trump followers are actually an organized group;  and 35 other things that could  be studied with a rigorous methodology but instead will be delivered in the absence (or face) of data, and an equal number of things that should never be studied, period.

Did I mention this will all be delivered to you at a 4th grade comprehension level?

2) Learn the Electoral College landscape cold. You need 270 electoral votes to win the Presidency on Election Day. Here’s the map of states that aren’t competitive. If we assign these as already locked-in, then there are now 223 electoral votes for Clinton and 179 for Trump:


That leaves 136 electoral votes up for grabs, and only 10 states you really need to watch (PA, CO, NH, NV, FL, NC, OH, IA, AZ, MI, plus the split-state districts in ME-2 and NE-2.) Get yourself knowledgeable about when the polls close in those states, review some recent polling averages, and check out some of the online forecasts to think about different situations. (Here are the NYT summary of forecasts; here’s 538’s forecasts.) Over at 270towin.com, you can fiddle with a map yourself to see how different scenarios play out.

Is it possible Clinton wins Georgia or Trump wins Wisconsin? Sure. But if either of those things happen, the Presidency will have long been decided; they simply can’t be the states that make the difference. So focus on the ones above. Utah may also be interesting due to Evan McMullan, the first 3rd-party candidate since 1968 who is a serious threat to win a state. It’s not impossible that McMullan winning Utah could affect the outcome—or even make him President—but it’s highly unlikely.

3) Learn the Senate landscape as best you can. There are only 8 races that are either remotely close enough to have big impacts or are otherwise interesting, seven seats currently held by Republicans (FL, IN, MO, NH, NC, PA, WI) and 1 seat currently held by a Democrat (NV). Check out the candidates and the stakes in each of these. Forget all the rest. Right now, there are 54 Republicans and 46 Democratic (or Democratic-aligned) Senators. Since the Democrats are almost certain to pick up the Republican held seat in IL, they will need to net a gain of 3 (if Clinton wins the Presidency) or 4 (if Trump wins) of the competitive seats to take control of the Senate. Examine some polling averages, and take a look at some of the online forecasts to think about different situations. (Here’s the NYT forecasts; this is 538’s.)

4) Figure out some House bellwethers. Unless you spend your days dealing with the House of Representatives (ahem), it’s hard to be up on all the competitive house races. But it’s a lot more fun to watch returns if you can assess the importance of a given House race result without having to trust Chuck Todd. Throughout the night, there will be a flood of House returns, and if you know that New Jersey’s 5th District and Florida’s 18th district are a lot more important in judging the national result than Pennsylvania’s 4th and Rhode Island’s 2nd, you’ll be ahead of the game. In the past, this has been a doable-but-arduous task. There are now a lot of websites that make your job easier.  You can use Roll Call’s great House guide and Cook’s race ratings and RealClearPolitics House map and ratings and 270ToWin’s guide or any number of other websites to orient yourself.

5) Make a prediction of some sort — and maybe a bet — but don’t be the “prediction-guy.” Make your prediction public by emailing it to someone (Or heck, tweet it to me @MattGlassman312). Here’s mine: Clinton wins the electoral college 341-198. Democrats picks up a net 15 House seats and gain Senate control 52-48.  Cooper beats McCroy for the NC governor, and the Dems sweep the open governor seats in IN, NH, and VT. I also guarantee that either David Gergen or some governor-type (Ed Rendell? Haley Barbour?) will get on my nerves at some point. And yeah, I’ll bet you a drink that I’m closer than you on the House total.

The trap to avoid here is turning the whole night into a test of your prediction ability. Don’t be that guy who’s only interested in the NCAA tournament because he’s got seven brackets going and $1000 on the line, but doesn’t really give a shit about college basketball. So keep the predictions light and modest. Guess some House and Senate totals, and call half a dozen races. But don’t go crazy. Face it: you didn’t build (you didn’t build!) your predictions from some proprietary model and a whole bunch of insider information, so your success or failure basically reflects zero on your ability as a forecaster. But your behavior tonight can reflect grandly on your status as a douchebag. So let Nate Silver and the British gambling houses sweat it out; your job isn’t on the line here.

6) “Watercooler” the election. I spend a lot of time at work trying to avoid political discussion — and I work on the Hill! So I understand your general impulse to stay away from your wackier colleagues on Election Day. But it might be the one day of the year when talking politics at the office can generate some positive returns. Especially if you go beyond contemporary politics and talk to people about democracy. Obviously, you have to weed out the cynics who want to lecture you on why they didn’t vote and the angry partisans who can’t imagine who would vote for that idiot for Senate and the monologuers who won’t shut up about why Denmark is such a better democracy than ours, but if you can weather those storms, you might strike gold.

You’re not looking for anybody specific here, but I recommend finding two people in particular if you can. First: a veteran. Ask him if he ever voted from a combat zone. Then listen. Second, someone who’s run for local office in the past. Ask them what it was like on election day when they ran and how it changed their view of democracy. Then listen. And, of course, if you work with any African-Americans over the age of 65 or so, by all means talk to them about voting and elections. You’re almost guaranteed to get a story worth hearing.

7) Vote. Or don’t. It’s utterly not consequential to the election. But you’ll feel better about yourself if you do. If you need some patriotic inspiration, go read my voting story from a few years back.

In the afternoon (6 action items)

1) Again, resist any and all temptation to turn the television on. For full explanation, see #1. But remember, they’ll be doing things like using a panel of “experts” to interview David Axelrod for three minutes about who he thinks is going to win the Senate. You’ve been warned.

2) Figure out who you are going to watch the returns with. People go all sorts of ways with this. I totally respect the people who have to watch alone, in the dark, just them and the TV, like they’re die-hard baseball fans watching game 7 of the world series. But that’s not my scene. Ditto with the election-night-headquarters style parties with you and 200 of your closest friends at a barroom. I think a home get-together is best, preferably with at least one person who shares your politics and one who doesn’t. I don’t recommend getting a ton of people together; think more “friends coming over” than “party” — you want six, not thirty.

I also think bringing lots of huge partisans into the mix is a mistake, but strong ideologues can be great if they are not too attached to party labels. Avoid cynics and Euro-philes at all costs. Face it, democracy is the least-worst alternative, and unemployment in parliamentary-systems on the continent is like 15%. Yeah, the Senate is anti-democratic, but so is the veto. Get over it. I don’t want to hear it tonight. And neither do your guests.

3) Get your snack setup straight. This is tricky. It’s not a college football tailgate. It’s sure as hell not a dinner party.  It’s not a BBQ. It’s not having people over for The Game. My suggestion is to go simple and traditional. That means, of course, pizza and beer. Fill in with pretzels or chips. The thing to stay away from is really messy food, since you’re going to want access to your laptop or ipad (see below) regularly. So probably stay away from salsa, or guacamole. And as much as it pains my upstate heart, wings are a big no-no. You also want a wonkcave configuration that’s amenable to eating and using a computer. You don’t have to go full-blown dork with TV trays and all that jazz, but figure something out ahead of time, so you aren’t sitting on a really deep couch, balancing a plate of pizza on your knees while you smear blue cheese all over your Ipad screen.

4) Learn about a few ballot initiatives. Here’s a  comprehensive if somewhat sterile review of the statewide questions voters will face tomorrow. Personally, I’m focused on the following: Arizona Proposition 205 and California Proposition 64 (legalize recreational marijuana; nice overview here); the various gun control propositions in a variety of states; the San Francisco proposal to lower the local voting age to 16; and a local issue in my area, the proposed Fairfax County Meals Tax.

5) Forget the governors’ races. Once you’ve studied the Senate races and found your House bellwethers, you might be tempted to start looking into some governor’s races. It’s not worth it (unless your state happens to have a competitive race, such as Indiana or North Carolina). Maybe pick one that’s really interesting, but don’t bother trying to master them. Invariably, they won’t affect your life and you won’t think about them again until they start announcing for President in a few years. Put your energy into learning more about the Senate races.  It makes for much better viewing.

6) Ponder our democratic republic. The 2016 election has featured a tremendous amount of vitriol, norm-breaking, and outright hostility between candidates, parties, and voters. Many political scientists, journalists, and other observes have serious concerns that these developments are not just an extreme version of ordinary election name-calling, but canaries in the coal mine for serious cracks in our democracy. While we have one of the strongest and longest-standing republics in the world, it is not immune to decay, rot, or even collapse. It’s probably worth your while to read an overview of what the concerns are. I recommend either Andrew Sullivan’s recent essay, or Jonathan Rausch’s essay from a couple of months back.

7) Vote if you haven’t yet done so. Or don’t. It’s utterly not consequential to the election. But you’ll feel better about yourself if you do. If you need some further patriotic inspiration, go read my old State of the Union post.

In the early evening, before the first polls close (6pm EST) (5 action items)

1) Again, resist any and all temptation to turn the television on. For full explanation, see #1. But remember, they’ll be doing things like making predictions about national turnout levels based on anecdotal interviews at 2 precincts in the midwest. You’ve been warned.

2) Get your laptop setup with the proper tabs open. My setup is going to look like this: a few live-blogs sitting open on the desktop (such as Five Thirty Eight), an ideological spectrum of other blogs available for quick consult ( TalkingPointsMemo, National Review), the tally-maps from some major networks/papers (probably MSNBC, and Foxnews), and the Virginia official returns site. Anything more than that, and it becomes unwieldy.

3) Arm yourself with the proper printouts. Some things are just better to have in hard copy. If there’s some variant on  Nate Silver’s hour-by-hour House guide from 2010, that’s pretty indispensable, especially if you aren’t uber-familiar with the House terrain. And a copy of Cook’s House Race Ratings is nice too to have on the table. I also recommend getting some scrap paper ready to use as your own tally-sheet for House and Senate pickups.

4) Get yourself setup on Twitter. I cannot emphasize this enough. Nothing has made following political events more fun in the last 10 years than Twitter. It brings just the right mix of seriousness and humor that democratic electoral politics deserves. Get yourself setup on it and get tweeting. Or just reading tweets. You won’t regret it. Follow the candidates (@RealDonaldTrump; @HillaryClinton), of course, and some straightfoward news sites (@AP, @CNN, etc.), and the big name forecast-types (@natesilver, @nate_cohn @DrewLinzer, @SamWangPhD). But here are a bunch of non-obvious tweeps I recommend following (for all-around reasons of smarts, humor, and likely volume of tweets tomorrow):

And, of course, @MattGlassman312. There are hundreds of other good ones too, so find your own!

5) Bill Mitchell. You must follow Bil Mitchell (@mitchellvii) on Twitter. If you aren’t familiar with him, he has become the ultimate pro-Trump internet troll, producing horror in those well-versed in the science of statistics, joy in the hearts of those who can appreciate a good KenM trolling performance, and total suspense for everyone who wants to know what what he’s going to say/do when Trump actually loses. Or wins. Also, he’s cruising at about 300 tweets/day.  I’m not kidding; this might be the most important piece of advice in the list. I mean, just look at this brilliant piece of buffoonery / performance art:


That’s galaxy-class Twitter troll game. You’re welcome.

After the polls begin to close (5 action items)

1) Ease into things.  If you plant yourself on the couch at 6pm, you will be brain-dead by 10:30. This is not college football; it is best enjoyed with an active mind. So turn on the TV, get your prep-work out, but don’t sit down. If you absolutely must be plugged in from the get-go, I recommend cleaning or exercising in the TV room. And for goodness sakes don’t eat a full sit-down dinner in front of the television. You’ll regret it. Have a light snack and order the pizza for 7:30. Make the returns background noise and a passive activity early on; by 7:30 or 8, you’ll be ready to hunker-down.

2) Pick a cable news network and stick with it. And I recommend making your choice based solely on comedy. Who has the stupidest display board, with the most useless bells and whistles? Who has the most commentators lined up in a bleacher-like tier? Which network is doing live-remotes from the most ridiculous places? Who has the funniest name for their “war room”? The bottom line is that the networks have ceased to be journalistic endeavors, and are now only good for getting raw data or being entertained. Everything else — from play by play to commentary to meta-analysis — is better on the Internets. Like fifty times better.

3) Don’t be afraid to get emotional. For whatever reason, America spent the 20th century trying to remove political intensity from the practice of actually casting and counting the votes. As recently as 100 years ago, polling places were raucous scenes, complete with bands, rallies, and liquor. Now they are like graveyards. And that carries over a lot of the time to how people adsorb returns. Don’t let it get to you. You’re emotionally invested in either politics or policy; you wouldn’t be reading this otherwise. Don’t pretend we’re counting the votes in a vacuum. Go ahead and cheer.

4) Around 9:00pm EST, call someone who’s only mildly into politics, and talk to them about the elections. Or more precisely, listen to them. Ask them who they voted for and why, and what they think of the emerging results. Don’t offer any opinions, analysis, or commentary. Too many junkies live exclusively in the world of the strategic meta-narrative; it’s both insightful and refreshing to hear people on election night who approach things at face-value.

5) Find out who won local office in your town. Contrary to the indications derived from media coverage, your town and school board elections routinely have a bigger effect on you and your family than anything going on in Washington. It’s bad enough that you don’t know who your state rep is, but it’s unconscionable that you don’t know who’s setting the policies for your kids’ school.  Take the time and find out who won these races, and promise yourself that you’ll have a better knowledge of them next time around. That way, you’ll at least feel guilty two years from now when you say, “Is he the Democrat or Republican?”

Late Night (3 action items)

1) Watch an unexpected victory speech, and an unexpected concession. Obviously, if there’s a pretty big surprise upset (like Kirkpatrick in Arizona or … TRUUUUMMP!), find those speeches and watch them live. Otherwise, look for the mild-upsets in Senate races in NH, PA, etc. If Marco Rubio loses, watch him. And if you can find an internet feed of a political amateur winning a House seat, those are solid gold moments.

2) Turn it off by 12:30am EST, after the initial California returns have come in and been digested. Unless you’re prepared to stay up all night, the marginal value of waiting each additional half-hour at that point is really low.  If they can’t call the west coast races by 12:30am EST, it will probably be sometime until they can. Don’t bother. Unless the Presidency is hanging in the balance. Then get your coffee out; you’re not going to bed if the map looks like it’s headed toward this:


3) Light up a joint if pot wins in California. Just kidding! Federal law will still make marijuana possession, sale, and cultivation illegal in the United States, and Gonzalez v. Raich will continue to guarantee for the time being that those federal laws are constitutional, regardless of how much money we throw away in the War On Drugs and how many non-violent drug offenders we put in federal prison in the coming years. Think that’s dumb? Me too. But I tend to support candidates who are ready to end the drug war. Next time, will you?

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So you want to be an amateur election forecaster? Here’s step zero.

October 26, 2016

[reprinted and slightly edited from 2012]

Scientifically forecasting the presidential election has, in the span of just a few elections, gone from a hobby of some obscure political scientists to a full-blown mainstream media and public obsession.  There are lots of forecasting sites out there for the presidential election: FiveThirtyEight, The Upshot, Votamatic. And these sites are really popular; people love to read them!

And so I figure there are a lot of people out there who would like to do some amateur election modeling in the next couple of weeks. And that’s one of the dirty little secrets of all this: the basic strategy is not wizardry. I’m far, far, far from anything approaching a good modeler and/or quantitative forecaster. But that doesn’t mean I can’t try my hand at it. And the same thing applies to you.

There’s only one file you need to get started. Right-click and save this excel sheet (it’s about 2mb): electoral-college-2016-monte-carlo-simulation-matt-glassman.

Open up the excel file. You will see it contains a list of all states, the number of electoral votes they get, and an associated probability of Hillary Clinton winning the state. Each time you alter one of the state win probabilities, the file re-runs a simulation of 50,000 elections, based on the individual state probabilities, and reports the following relevant electoral college results: percentage of time Clinton wins, Trump wins, or its a tie; the average number of electoral votes for each candidate; and a graphical probability distribution of Clinton’s electoral college votes. Excel will instantly re-run the simulation (it takes about 2 seconds on my crappy computer) any time you change any of the state win probabilities. The graphic you see here is the distribution of outcomes when FiveThiryEight’s current (as of 10/26) “polls-only” win probabilities for each state are plugged into my simulation (not surprisingly, my sim and his sim both find the mean number of Clinton EC votes to be about 333.6; my sim’s estimate of the percent of the time Clinton wins is higher — 99% to 84% — most likely because my sim is simple, non-dynamic, and doesn’t account for anything but the state win probabilities). But you can plug in whatever you want. It can be fun to get lost in the various scenarios. Trust me.

hrc-simNow, let me be crystal clear about one thing: this is not a model of the election. The Monte Carlo simulation is the final step in translating your model into a forecast. Your actual model is the data and analytical process that generates the individual state win probabilities. When you waste a fun hour plugging in various different state probabilities, your implicit model is “my best guess.” In effect, you are just doing somewhat-systematic punditry. If you want to actually model the state probabilities, you need at a minimum some sort of data (if you just want to forecast) or some data and a theory (if you want to forecast and explain the Way Things Work).

Here’s an example of a super-simple forecast model: take the most recent major-firm poll in each state, get Clinton’s percentage in the poll, build a table that translates each polling number to a win probability (i.e. polling 52% = 70% win chance; polling 58% = 99.99% win chance), and then just plug in the probabilities that your poll data suggests. Re-run simulation each time you get a new state-level poll.

Of course, that’s an absurdly simple and naive model. All sorts of advancements can be made on it. You can study the historical translation between poll numbers and win probabilities to improve your table; you can average multiple polls; you can weight those averages by the age of the poll and the past track-record of the pollster; you can correct for “house effects” of state-level polls; you can incorporate national polls and weight their contribution to the model; you can incorporate fundamental demographic data about the state; you can use all this to build a baseline and make the whole thing a continuous Bayesian update; you can build in uncertainty.

This sort of complicated and detailed modeling is exactly how the popular models work. Now, FiveThirtyEight’s model is proprietary, but other very good models, such as Votamatic, are fully transparent and available for inspection. Go check it out. It will demystify much of what is going on under the hood of these things. But the bottom line is that simple and complicated models all work the same way: use an algorithm to translate some data into win probabilities for each state, then simulate the electoral college with those state probabilities.

Also note that the simulation I gave you here isn’t dynamic in any way. It’s the most basic simulation possible. In real life, if Trump wins Pennsylvania — even if he only had a 13% estimated chance of doing so — he would almost certainly win Ohio and Iowa. The simulator doesn’t account for this; the states are completely independent. Which isn’t how the world works. Making them partially dependent — forcing the simulator to have Trump win OH if he happens to win PA, or having Clinton win GA if she happens to win TX — is an important complexity that most serious forecast models employ. This one does not.

And that’s the rub. Simple modeling and forecasting is very easy. Get some data, generate some win probabilities in the states, and then simulate the election. Good modeling and accurate forecasting is much, much tougher. It requires careful theoretical and empirical specification, and a subtle understanding of how politics and public opinion work. Those aren’t chops I have, and they probably aren’t chops you have. But they certainly aren’t magical tools or skills that people are born with. And there is virtually zero barrier to entry to getting started. So why not?

At any rate, enjoy the Monte Carlo simulator — even seat-of-your-pants modeling of the win probabilities is a hell of a lot of fun! And if you want to get more into it, good luck. The sky’s the limit.

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At a Track Called Saratoga…

August 28, 2015

The Saratoga Race Course host it’s most famous race—the 146th running of the Travers Stakes—tomorrow evening, with Triple Crown winner American Pharoah in the field.

Having grown up just south of Saratoga, NY, I spent endless childhood summer days sitting in the majestic track’s picnic area, and just as many teenage summer nights bar-hopping the small-town, mardi-gras-like atmosphere of downtown Saratoga. You get some funny looks in most of the rest of the country when it’s revealed that you know how to calculate the payout on a $2 exacta ((total exacta pool – takeout)/(total winning dollars bet * 2)) or can name the horse that beat Secretariat in the ’73 Whitney (Onion), but it’s neither trashy nor rare to know horse racing where I come from.

I have always loved everything Saratoga. The track. The town. The people. The races. The picnic area. The fancy clothes. The sounds. The smells. The horses. The clubhouse. The paddock. The beautiful afternoons. The walk downtown after the races end. The restaurants. The bars. The horsemen. The horse talk. The kids selling tip sheets. The spinners collecting t-shirts. The fat men smoking cigars and telling anyone in earshot that “they almost had the triple!” All of it.

But I love Saratoga the most in the morning. The races don’t start until 1pm, but you can get into the track as early as you can get out of bed. There’s nothing quite like arriving at the track at 8am, grabbing some picnic tables, playing cards, reading the newspaper, wandering the clubhouse, walking downtown for breakfast, handicapping the races, and shooting the breeze with your buddies as the morning rolls by.

Saratoga is, of course, known as the “graveyard of the favorites.” Secretariat lost to Onion there in the ’73 Whitney. Jim Dandy beat Gallant Fox in the ’30 Travers.  And, of cousre, Man O’ War. When I was a boy, the most famous TV ad for Saratoga was a shot of the sun coming up over the practice track, and a gravely-voiced announcer slowly reciting the famous spine-tingler: Man…O’….War. Greatest…horse…of…all…time. Started twenty-one races…Won twenty of them….His…only…loss? …To a horse…named…Upset…At a  track …. called … Saratoga! There’s really nothing quite like standing at the top of the empty grandstand in the morning and surveying the homestretch while you think about that commercial. Magic.

And so here’s a photo essay of the race course as many people have never seen it. Most of these photos were taken a decade ago, in a spat of twenty-something nostalgia, when I realized I would probably never again live near Saratoga, and would likely never visit the mighty racetrack more than once a season. Make sure you click on the pictures to blow them up, much of the beauty is in the details.

 The Oklahoma practice track, across the street from the picnic area and the main track, 6am. Although Saratoga is only open for six weeks each year (late July until Labor Day), many horses stable and train in Saratoga for longer stretches.

The spring inside the picnic area. 8am. You’ve never tasted such horrible water, or seen old men down such horrible water like it was the fountain of youth. Not a picnic table in sight at this hour.

One of the trackside restaurants in the clubhouse, with early morning handicappers surveying their racing forms. I swear to you, I have been to Saratoga Race Course hundreds of times, and I have never seen once shred of evidence that you can gain any handicapping edge by studying the Daily Racing Form. None.

The Turf Terrance restaurant in the clubhouse. Jackets required. Fancy hats optional. Political or other connections helpful.

Two horseplayers having breakfast trackside. I prefer Compton’s Diner down on Broadway to the breakfast at the track, but it is fun to watch the workouts while you read the paper and sip coffee. And If you ever want to see someone smoke a cigar at 8am, you’ve come to the right place.

Breakfast at the rail, watching a workout. Those “at the rail” style seats did not exist when I was a boy, but much like Fenway Park, Saratoga has been steadily enhanced over the past 20 years, largely without sacrificing it’s rustic 19th century charm. Like the famous saying goes, it’s not hard to get to Saratoga: you just drive 2 hours north from New York City, turn left off the highway, and go back about 100 years.

Betting windows in the picnic area. The track needs a lot of seasonal labor. Out in the stables, it’s almost entirely Hispanic immigrants. At the lemonade and ice cream stands, it’s almost universally teenagers. And behind the betting windows, it’s disproportionately public school teachers. I can remember going to place a bet once the summer after 9th grade, looking up, and seeing my English teacher. Yikes!

Betting windows in the clubhouse. Like most people at Saratoga, I’m not much of a horseplayer — I usually bet maybe $2-$5 on an given race — but at least I’m not a wimp. You should see my sister. Here standard bet is something like $2 on the favorite to show.

Bartender relaxing outside an empty clubhouse barroom, 10am.

Opening shop in the Carousel Restaurant.

The view from the clubhouse seats. It costs $5 to get into the track, and an additional $5 if you want to get into the clubhouse (neither admission gets you a seat). Throw on a $2 bet on 7 or 8 races, bring your own food and drinks, and it’s more or less the most entertainment you can buy for less than $25.

The picnic area begins to fill up. There are hundreds of actual picnic tables in the picnic area, but they go really fast (it’s first come, first serve), and so many people bring their own card tables, canopies, etc.

Those who prefer the benches start to filter in. Everyone who goes to the track does it differently, and no one can believe anyone else’s logistics make any sense. Some people just wander the whole time (insanity). Some like the benches (ditto). Some like buying seats in the clubhouse (ok). I’ve always been a picnic area guy: set up two bridge tables and a bunch of camping chairs, and use that as a home base from which to occasionally go to the rail, the clubhouse, etc.

The clubhouse entrance starts to get crowded

Programs for sale. These kids make a fortune. The norm at Saratoga is to never take your coin change when you buy something. So those kids are getting 50 cents tip on most programs. And they are selling hundreds of them in the span of about 2 hours. Needless to say, a summer job at the track is a highly prized possession for teenagers, and political connections are often used to obtain one.

The bands begin to play in the picnic area. Sometimes, Saratoga is so classy it hurts. Like the shaving equipment and free cologne in the picnic area men’s room. I’ve seen people stop and use the cologne, but I’ve never observed someone actually lather up for a shave.

Artwork row. I’ve always been tempted to buy an autographed copy of the iconic shot of Turcotte looking back from aboard Secretariat at the 1/16 pole at the ’73 Belmont. But I’ve never pulled the trigger on any racing memorabilia.

Cocktails. Liquor doesn’t sell that all that well at Saratoga Race Course, because (1) you can bring as much of your own as you want into the picnic area, and (2) the atmosphere at the track is a lot more family-friendly then you might otherwise imagine. On the other hand, the legal drinking age in the town of Saratoga during track season seems to be about 17, which makes sense because the legal gambling age at the track seems to be about 12. Family-friendly indeed!

To wit, this more or less standard picture from the picnic area.

The horses enter the paddock for race #1. Watching grown men scream encouragement to a horse as it walks by is both hilarious and scary. You go get ‘em, Mr Peanuts! One time!

Jockeys climb aboard. Watching grown men scream strategy to the jockeys is just plain hilarious. Don’t take him wide this trip, Robbie!

The grandstand and rail fill up. For a typical race, you need to get to the rail about 10 minutes before post if you want to be in the front row along the fence. I usually watch one or two races a day from the rail, one or two from the clubhouse, and the rest on the TV monitors in the picnic area.

Leaving the paddock for the track. One reason a racetrack doesn’t feel like a casino is that the gambling isn’t constant. There’s a solid half hour between races, so you have a lot of down time, which means you aren’t constantly thinking about or engaged in wagering.

Heading toward the starting gates. Obviously, there has been a lot of research done in the last 150 years on horse genetics. The thing that I can’t fathom is that they never figured out how to breed fast thoroughbrdeds that had ankles thicker than toothpicks.

The horses are in the gate. Tom Durkin has been making the calls at the track since I was about 10.  I was there on July 28, 2008 for his recent famous call on AARRRRRR! Sadly, he retired recently.

And they’re off!

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Elecshun Dae

November 3, 2014

My 24-point layman’s guide to getting your politics junkie on tomorrow:

In the morning

1) Do not — under any circumstances — turn on your television prior to 6pm. This isn’t specific to the morning, but it has to be first, because it’s absolutely crucial. The only thing worse than the election night coverage on the cable news networks is the election day coverage on the cable news networks. And trailing right behind those two things is the douchebag in your office who watched the Today show on election morning and is now repeating the same drivel outside your cubicle. Don’t be that guy.

In case you are tempted at any point in the day, I’ll save you the time by summing up the coverage for you here: worthless anecdotes about turnout; analysis of rainy weather forecasts that supposedly affect turnout but actually do not; “explanations” of the “science” of exit-polling and election prediction; interviews with senior citizens who voted at 11am in the Midwest; set pieces like “30 years ago this week” about past elections;  meta-narratives about the President’s probable reaction to a 5-seat swing in the House vs. a 15-seat swing; exposés on campaign financing, voter turnout, and enthusiasm; editorials on what the election “means,” whether this is a “change” election, a “wave” election, or a “turnout” election; stories about the parties angling with teams of lawyers to oversee recounts; worries on the left and right about voter fraud and voter suppression; some blair-witch style youtube video showing something allegedly wrong; debates over whether this is 2006 or 1998 or neither; debates over divided government and gridlock; anecdotal profiles about who the independents are voting for; questions about why aren’t there more moderates; polemics on whether the Tea Party will play nice in DC during the lame-duck, whether the Tea Party will be a force in politics for much longer, and whether the Tea Party is actually a party;  and 35 other things that could  be studied with a rigorous methodology but instead will be delivered in the absence (or face) of data, and an equal number of things that should never be studied, period.

Did I mention this will all be delivered to you at a 4th grade comprehension level?

2) Learn the Senate landscape cold. There are only 11 races that are either remotely close enough to have big impacts or are otherwise interesting (KS, IA, NC, CO, AK, GA, NH, LA, AR, MN, VA, KY). Learn the candidates and the stakes in each of these. Forget all the rest. Get yourself knowledgeable about when the polls close in those states, review some recent polling averages, and check out some of the online forecasts to think about different situations. (Here are the NYT forecasts ; here’s 538’s forecasts.)

3) Figure out some House bellwethers. Unless you spend your days dealing with the House of Representatives (ahem), it’s hard to be up on all the competitive house races. But it’s a lot more fun to watch returns if you can assess the importance of a given House race result without having to trust Chuck Todd. Throughout the night, there will be a flood of House returns, and if you know that New York’s 11th District and New Hampshire’s 1st district are a lot more important in judging the national result than Pennsylvania’s 4th and Rhode Island’s 2nd, you’ll be ahead of the game. In the past, this has been a doable-but-arduous task. Four years ago, Nate Silver produced a handy shortcut in the form of a guide; no word on whether such a similar cheat-sheet will be available for laymen this year.  But you can use Cook’s race ratings or RealClearPolitics race ratings or any number of other websites to orient yourself.

4) Make a prediction of some sort — and maybe a bet — but don’t be the “prediction-guy.” Make your prediction public by emailing it to someone (Or heck, post it here in the comments). Here’s mine: GOP picks up a net 11 House seats and gains Senate control 53-47.  Brownback, Deal, and Malloy hold on in their governor tests, and the Dems win MA. I also guarantee that either David Gergen or some governor-type (Ed Rendell? Haley Barbour? Chris Christie?) will get on my nerves at some point. And yeah, I’ll bet you a drink that I’m closer than you on the House total.

The trap to avoid here is turning the whole night into a test of your prediction ability. Don’t be that guy who’s only interested in the NCAA tournament because he’s got seven brackets going and $1000 on the line, but doesn’t really give a shit about college basketball. So keep the predictions light and modest. Guess some House and Senate totals, and call half a dozen races. But don’t go crazy. Face it: you didn’t build (you didn’t build!) your predictions from some proprietary model and a whole bunch of insider information, so your success or failure basically reflects zero on your ability as a forecaster. But your behavior tonight can reflect grandly on your status as a douchebag. So let Nate Silver and the British gambling houses sweat it out; your job isn’t on the line here.

5) “Watercooler” the election. I spend a lot of time at work trying to avoid political discussion — and I work on the Hill! So I understand your general impulse to stay away from your wackier colleagues on Election Day. But it might be the one day of the year when talking politics at the office can generate some positive returns. Especially if you go beyond contemporary politics and talk to people about democracy. Obviously, you have to weed out the cynics who want to lecture you on why they didn’t vote and the angry partisans who can’t imagine who would vote for that idiot and the monologuers who won’t shut up about why our democracy is capital-F-fucked, but if you can weather those storms, you might strike gold.

You’re not looking for anybody specific here, but I recommend finding two people in particular if you can. First: a veteran. Ask him if he ever voted from a combat zone. Then listen. Second, someone who’s run for local office in the past. Ask them what it was like on election day when they ran and how it changed their view of democracy. Then listen. And, of course, if you work with any African-Americans over the age of 65 or so, by all means talk to them about voting and elections. You’re almost guaranteed to get a story worth hearing.

6) Vote. Or don’t. It’s utterly not consequential to the election. But you’ll feel better about yourself if you do. If you need some patriotic inspiration, go read my voting story from a few years back.

In the afternoon

7) Again, resist any and all temptation to turn the television on. For full explanation, see #1. But remember, they’ll be doing things like using a panel of “experts” to interview David Axelrod for three minutes about who he thinks is going to win the Senate. You’ve been warned.

8) Figure out who you are going to watch the returns with. People go all sorts of ways with this. I totally respect the people who have to watch alone, in the dark, just them and the TV, like they’re die-hard baseball fans watching game 7 of the world series. But that’s not my scene. Ditto with the election-night-headquarters style parties with you and 200 of your closest friends at a barroom. I think a home get-together is best, preferably with at least one person who shares your politics and one who doesn’t. I don’t recommend getting a ton of people together; think more “friends coming over” than “party” — you want six, not thirty. Also, this isn’t a  Presidential election; midterms call for a more refined, thoughtful arrangement.

I also think bringing huge partisans into the mix is a mistake, but strong ideologues can be great if they are not too attached to party labels. Avoid cynics and Euro-philes at all costs. Face it, democracy is the least-worst alternative, and unemployment in parliamentary-systems on the continent is like 15%. Yeah, the Senate is anti-democratic, but so is the veto. Get over it. I don’t want to hear it tonight. And neither do your guests.

9) Get your snack setup straight. This is tricky. It’s not a college football tailgate. It’s sure as hell not a dinner party.  It’s not a BBQ. It’s not having people over for The Game. My suggestion is to go simple and traditional. That means, of course, pizza and beer. Fill in with pretzels or chips. The thing to stay away from is really messy food, since you’re going to want access to your laptop (see below) regularly. So probably stay away from salsa, or guacamole. And as much as it pains my upstate heart, wings are a big no-no. You also want a wonkcave configuration that’s amenable to eating and using a computer. You don’t have to go full-blown dork with TV trays and all that jazz, but figure something out ahead of time, so you aren’t sitting on a really deep couch, balancing a plate of pizza on your knees while you smear blue cheese all over your Ipad screen.

10) Learn about a few ballot initiatives. Here’s a nice overview of the statewide questions voters will face tomorrow. Personally, I’m focused on the following: North Dakota Measure 1 and Colorado Amendment 67 (personhood amendments related to pro-life movement); Oregon Measure 91  (legalize pot and regulate it like alcohol); and Massacusetts Question 3 (repeal casino gaming in state).

11) Forget the governors’ races. Once you’ve studied the Senate races and found your House bellwethers, you might be tempted to start looking into some governor’s races. It’s not worth it (unless your state happens to have a competitive race). Maybe pick one that’s really interesting, but don’t bother trying to master them. Invariably, they won’t affect your life and you won’t think about them again until they start announcing for President next year. Put your energy into learning more about the Senate races.  It makes for much better viewing.

12) Vote if you haven’t yet done so. Or don’t. It’s utterly not consequential to the election. But you’ll feel better about yourself if you do. If you need some further patriotic inspiration, go read my old State of the Union post.

In the early evening, before the first polls close (6pm EST)

13) Again, resist any and all temptation to turn the television on. For full explanation, see #1. But remember, they’ll be doing things like making predictions about national turnout levels based on anecdotal interviews at 2 precincts in the midwest. You’ve been warned.

14) Get your laptop setup with the proper tabs open. My setup is going to look like this: a few live-blogs sitting open on the desktop (probably Andrew SullivanJosh Marshall, and Five Thirty Eight), an ideological spectrum of other blogs available for quick consult (DailyKosInstapunditNational Review), the tally-maps from some major networks/papers (probably MSNBC, and Foxnews), and the Virginia official returns site. Anything more than that, and it becomes unwieldy.

165) Arm yourself with the proper printouts. Some things are just better to have in hard copy. If there’s some variant on  Nate Silver’s hour-by-hour House guide form 2010, that’s pretty indispensable, especially if you aren’t uber-familiar with the House terrain. I also recommend getting some scrap paper ready to use as your own tally-sheet for House and Senate pickups. And a copy of Cook’s House Race Ratings is nice too to have on the table.

16) Get yourself setup on Twitter. I cannot emphasize this enough. Nothing has made following political events more fun in the last 10 years than Twitter. It brings just the right mix of seriousness and humor that democratic electoral politics deserves. Get yourself setup on it and get tweeting. Or just reading tweets. You won’t regret it. Here are a bunch of tweeters I recommend following (for all-around reasons of smarts, humor, and likely volume of tweets tomorrow): @jbplainblog, @speechboy71, @julia_azari, @ezraklein, @BrendanNyhan, @conor64, @smouts, @monkeycage, @radleybalko, @pourmecoffee, and, of course, @MattGlassman312. There are hundreds of other good ones too, so find your own!

After the polls begin to close

17) Ease into things.  If you plant yourself on the couch at 6pm, you will be brain-dead by 10:30. This is not college football; it is best enjoyed with an active mind. So turn on the TV, get your prep-work out, but don’t sit down. If you absolutely must be plugged in from the get-go, I recommend cleaning or exercising in the TV room. And for god sakes don’t eat a full sit-down dinner in front of the television. You’ll regret it. Have a light snack and order the pizza for 7:30. Make the returns background noise and a passive activity early on; by 7:30 or 8, you’ll be ready to hunker-down.

18) Pick a cable news network and stick with it. And I recommend making your choice based solely on comedy. Who has the stupidest display board, with the most useless bells and whistles? Who has the most commentators lined up in a bleacher-like tier? Which network is doing live-remotes from the most ridiculous places? Who has the funniest name for their “war room”? The bottom line is that the networks have ceased to be journalistic endeavors, and are now only good for getting raw data or being entertained. Everything else — from play by play to commentary to meta-analysis — is better on the Internets. Like fifty times better.

19) Don’t be afraid to get emotional. For whatever reason, America spent the 20th century trying to remove political intensity from the practice of actually casting and counting the votes. As recently as 100 years ago, polling places were raucous scenes, complete with bands, rallies, and liquor. Now they are like graveyards. And that carries over a lot of the time to how people adsorb returns. Don’t let it get to you. You’re emotionally invested in either politics or policy; you wouldn’t be reading this otherwise. Don’t pretend we’re counting the votes in a vacuum. Go ahead and cheer.

20) Around 9:00pm EST, call someone who’s only mildly into politics, and talk to them about the elections. Or more precisely, listen to them. Ask them who they voted for and why, and what they think of the emerging results. Don’t offer any opinions, analysis, or commentary. Too many junkies live exclusively in the world of the strategic meta-narrative; it’s both insightful and refreshing to hear people on election night who approach things at face-value.

21) Find out who won local office in your town. Contrary to the indications derived from media coverage, your town and school board elections routinely have a bigger effect on you and your family than anything going on in Washington. It’s bad enough that you don’t know who your state rep is, but it’s unconscionable that you don’t know who’s setting the policies for your kids’ school.  Take the time and find out who won these races, and promise yourself that you’ll have a better knowledge of them next time around. That way, you’ll at least feel guilty two years from now when you say, “Is he the Democrat or Republican?”

Late Night

22) Watch an unexpected victory speech, and an unexpected concession. Obviously, if there’s a pretty big surprise upset (like McFadden in Minnesota or Gillespie winning in Virginia), find those speeches and watch them live. Otherwise, look for the mild-upsets in Senate races in NH, WV, etc. If Mitch McConnell loses, watch him. And if you can find an internet feed of a political amateur winning a House seat, those are solid gold moments.

23) Turn it off by 1am, after the initial California returns have come in and been digested. Unless you’re prepared to stay up all night, the marginal value of waiting each additional half-hour at that point is really low.  If they can’t call the west coast races by 1am EST, it will probably be sometime until they can. Don’t bother.

24) Light up a joint if pot wins in Oregon. Just kidding! Federal law will still make marijuana possession, sale, and cultivation illegal in the United States, and Gonzalez v. Raich will continue to guarantee for the time being that those federal laws are constitutional, regardless of how much money we throw away in the War On Drugs and how many non-violent drug offenders we put in federal prison in the coming years. Think that’s dumb? Me too. But I voted for Gary Johnson in 2012. Next time, will you?

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Musical Chairs: The Most Fascinating Institutional Process in the House

March 5, 2013

Representative Norm Dicks is retiring after 18 terms in the House.

Dicks was the Ranking Member (i.e. top Democrat) on the House Appropriations Committee and also the Ranking Member of the Committee’s Subcommittee on Defense. Consequently, his retirement announcement  has led to significant speculation about who will become the top Democrat on the Appropriations committee, as well as what effect his retirement (and the announced retirements of two other high-ranking Committee Democrats, Reps. Olver and Hinchey) will have on the top spots on the subcommittees. This seems like as good a time as any to review the way the Democrats choose subcommittee chairs on House Appropriations, because not only is it a unique process among all congressional committees, but it’s also an absolutely fascinating institutional design.

I cannot emphasize this enough: gaming out the strategic implications of the Democratic Appropriations subcommittee selection process is mind-bending, almost begging for some SABRmetric-style clarity. It simultaneously resembles a professional sports draft, a strategy-based board game, and a missing-information game like poker. It’s awesome. It’s also ripe pickings for anyone looking to write an interesting political science paper (it’s on my list, but feel free to beat me to it; this blog post will give you the roadmap.)

Let’s do this Q&A-style, since it gets a little complicated. But bear with me, it’s worth it. We’ll start from the beginning — general selection of committee chairs — and work our way down from there.

Q. I thought there was a seniority system for committees? Isn’t determining the full committee Ranking simply a matter of looking at the seniority list of the Committee Democrats, and seeing that Rep. Kaptur is the most senior Democrat after Rep. Dicks?

A. Nope. Under the rules of the Democratic Caucus, the caucus nominates the chair/ranking of the committee, and seniority is only one factor taken into consideration. There are a bunch of other factors written into the rules, and of course there are politics involved as well. The GOP does it a similar way.

These party rules are different from the Rules of the House of Representatives, which are chamber rules approved by a majority of Representatives. The party rules are approved by the caucus/conference, and deal with internal party issues, although in some ways they end up structuring the House of Representatives much like the Rules of the House.

BTW, if you want to learn more about the caucuses and caucus rules in general, check out my old post on them.

Q. What do you mean “nominates”?

A. Under House Rule X, clause 5, most committee assignments are actually made by various House resolutions at the beginning of each Congress (for example, H.Res. 31 from the 112th Congress), based on nominations submitted by the caucus. This is pro forma, but illustrates the way the formal actions of the floor are intertwined with the off-floor actions of the caucus/conference.

Q. So how, specifically, are the committee chairs nominated in the Democratic caucus?

A. In the House Democratic Caucus, all standing committee chairmen except Rules, Budget, and House Administration are nominated by the Democratic Steering and Policy Committee (DSPC) from among the Members of the Standing Committee, and the nomination is submitted to the caucus for a vote. The DSPC is instructed by the rules to consider merit, length of service on the committee, commitment to the Democratic agenda, and the diversity of the caucus in making its nomination. If they nominate the Member of the standing committee with the most seniority, then by rule the caucus votes only on approval or disapproval of the nomination. If the DSPC nominates someone other than the most senior Member of the standing committee, then alternative nominations can be made within the caucus and, following debate, a secret-ballot election is held within the caucus for the nomination.

Q. Who’s on the DSPC?

A. The party leader (Speaker/minority leader) and other leadership Members, caucus leadership Members, and a number of others set by rule: a freshmen Member, 12 regional representatives, the Chair/Ranking of several committees, and up to 15 at-large Members chosen by the party leader.

Q. You mentioned that a standing committee Chair/Ranking was nominated by the DSPC from among the Members of the standing committee. How are they chosen?

A. Much the same way. The DSPC recommends Members for committees, and the nominated slates are ratified by the caucus. There are specific rules that guarantee all Members at least one assignment, and that prohibit Members from holding multiple high-value committee slots.

Q. Great. And that’s the same for Appropriations as the other committees?

A. Yes, except as noted above, there’s an alternate provisions for Rules, Budget, and House Administration, which give the leadership more power relative to the caucus as a whole in the case of Rules and House Administration, and less power in the case of Budget.

Q. So how do the House Democrats select subcommittee chairs/rankings?

A. For all committees except Appropriations, the rules specify that at the initial committee caucus organizing meeting, all Members of the committee caucus have the right to bid, in order of seniority on the full committee, for the chair/ranking of the subcommittees. So they more or less call the roll at the meeting, and Members pick what they want. Three of the committees — Energy and Commerce, Financial Services, and Ways and Means — are also required to have the winning bidders submitted to the DSPC and the full caucus for approval. The other committees do not require approval.

Q. What about the rest of the subcommittee Members?

A. After the chairs/rankings are decided for all subcommittees, the bidding process at the committee caucus continues. Everyone who hasn’t won a subcommittee chair/ranking gets to then, in order of full committee seniority, either “protect” a subcommittee they were on in the previous Congress, or to “pitch it in.” Once all Members of the committee have announced either what they are protecting or that they are pitching it in, then bids are made for subcommittee slots, based on (A) how many assignments you already have (either 1 or none, depending on whether you protected something) and then (B) your full committee seniority. The bidding continues until all subcommittees are filled. So if you were on the Subcommittee on Baseball last Congress, but you also want to get on the Subcommittee on Football this year, you have a choice: protect Baseball and hope that Football is still available in the second round of the draft, or pitch Baseball in, get a first round pick to use on Football, and then hope Baseball is still around in the second round. (Obviously, if there aren’t enough subcommittee seats for people to hold more than one, you have to choose Baseball or Football right out of the gate.)

In effect, the first round of picks ends up going like this: existing Members who pitched in by seniority, followed by new committee Members by seniority (since none of them have anything to pitch). The second round (if it exists) ends up going like this: the subcommittee chairs/ranking (they already had a round 1 assignment), followed by existing Members by seniority (which now includes all Members who protected), followed by new committee Members. So if you are a low ranking existing committee Member, pitching in your opportunity to protect an assignment can move you very far up the list in an effort toward getting a new subcommittee: you can often go from late in the 2nd round to early in the first.

All of this is governed by the Democratic Caucus rules. The GOP system is less centralized, but most committees using a similar bidding system.

Q. Ok. That sounds kind of fun. How is it different on Appropriations?

A. Three simple differences: first, the subcommittee chairs are not chosen by full committee seniority, but instead by subcommittee seniority. In other words, there’s no draft for subcommittee chairs/rankings. It just automatically goes to the most senior Member of the subcommittee who protects that committee (or chooses it first if no one protected it). Second, you can protect up to 2 existing subcommittee assignments when it’s time to protect or pitch in. Third, by House Rules, Appropriations can have more subcommittees (there are currently 12), and therefore, most Members are on there subcommittees when their party is in the majority.

If you brain has not started to spin, the ramifications probably haven’t clicked in yet. If they have, you probably have a huge smile on your face. Either way, read on.

Q. I’m not seeing it?

A. Well, the use of subcommittee seniority instead of full committee seniority has three massive strategic implications. First, there’s a lot of value in staying on a less popular or less desirable subcommittee; less-senior Members of the full committee can quickly get subcommittee seniority. Second, there’s a trade-off that has to be weighed between being a chair/ranking of a lesser subcommittee and being a junior Member of a powerful subcommittee. Would you rather be the chair of the Legislative Branch Subcommittee, or a junior Member of the Defense Subcommittee? Finally, the subcommittee seniority system makes it dangerous to test the waters at the selection process. As soon as you pitch in a subcommittee, you lose all seniority on that subcommittee — even if you get back on it by picking it in a later round of bidding. And picking a subcommittee earlier than someone else in the same draft gives you the seniority.

These issues simply don’t present themselves on the other committees: to become a subcommittee chair, you just have to wait until you have the full committee seniority, you can’t gain advantage by squatting. Nor can you lose it. As we will see, it also turns out that we can use the unique appropriations committee process to empirically estimate the perceived value of different subcommittees. But we have to solve a logic puzzle first. (more on that later.)

Q. Ok. I’m still not sure I see it. Walk me through it.

A. Ok. It’s the committee caucus meeting. When the Democrats are in the majority, most returning Members will have three existing subcommittee assignments.We call the roll in full committee seniority order. Each Member can  protect up to two of the existing assignments, or pitch any number of them in. New committee Members will obviously have nothing to pitch in.

Once we get through the whole roll, we’ll have two things: a board that shows what slots have been protected on each subcommittee and how many additional slots are available, as well as a three-round draft order. The draft order will look like this:

Round 1: Everyone who either pitched in two assignments, or is new to the committee, in order of seniority

Round 2: Everyone from round one, plus everyone who pitched in one assignment, in order of seniority

Round 3: Everyone on the whole committee, in order of seniority

Q. Ok. I think I get it. But why is it fascinating?

A. Mostly because Members are put in the position of having to make very important strategic choices with very little time to consider the implications. All information about pitching in and protecting is public, but it’s not made public until the very moment it happens, meaning you might not have a full understanding of the draft order ahead of you until seconds before you have to choose whether to pitch in both of your assignments. Nor will you ever know for certain the priorities of those ahead of you, or the actions that will be taken behind you in the draft. And those pieces of information are vital if you want to maximize your protections and picks. I’m convinced that many Members do not maximize their utility in the draft.

Here’s a simple example: say we’re having an approps assignment draft, and the only changes to the membership of the committee is that two members have retired: a Member of the Defense Subcommittee and a Member of the State-Foreign Ops Subcommittee. Two new Members have been added to the committee. You are currently chair of Legislative Branch, but you’d really like to get on Defense, and you are willing to give up the gavel on Leg Branch for it, but you really don’t want to give up the Leg Branch gavel and not get the Defense slot. And you really don’t care about State-Foreign Ops.

When it’s time to pitch in, everyone more senior than you protects 2 assignments (meaning they don’t have a first round pick), except for one person, who pitches both of their assignments, meaning they can have Defense if they want it. But you think they want State-Foreign Ops. But when you asked about it before the meeting, they were coy. And you know they are really good friends with the person directly behind you in seniority, and you know that Member wants Defense.

It’s now your turn. Do you pitch in both assignments, knowing that once you do, you can’t get back the chair on Leg Branch? But what if you don’t pitch them in, and then the person ahead of you takes SFO, leaving Defense to pass you by?

It’s a dilemma.

Q. Neat. Is that all?

A. Not by a longshot. Remember, the whole process cascades. If you pitch in Leg Branch, that means that whoever was second in seniority on Leg will now be the chair if they protect it, which obviously affects their strategic calculations.  And possibly their lobbying efforts for what you should do. And dare we say their information sharing? Furthermore, openings in committees that you have no interest in can severely affect your fortunes, since they can strongly affect the cascade if seats open up on popular committees, and mid-range committees are left with only the chair protecting them, which is often the case in a full-draft at the beginning of a Congress. And yes, Members and staffers do think about these things.

Q. So that’s kind of cool, but is that all?

A. Nope. Because once we (as observers) have the draft order and the picks, all sorts of interesting things can be observed. First, it gives us a great measure of the relative desirability of the subcommittees, since we can see what draft picks were used to get what slots. Second, it lets you understand some of the individual Member politics, since you can observe Members using high picks to lock-up slots that ex ante don’t seem that desirable. And finally, it lets you see if Members made mistakes, or at least bad value plays like the Oakland Raiders make in the NFL draft. For instance, if a Member uses a first round pick to get a slot (say, third most senior Member of Subcommittee X, which has five slots), and that exact slot is still available when the Member makes their second-round pick, it’s pretty obvious that the first-round pick was either super risk-averse (since there was plenty of buffer to just get on the subcommittee) or a lot of wasted value.

Q. So, where can we look at the old drafts?

A. You can’t. The drafts are held closed-door, and neither the pitch list or draft order is released. Just the final results of the selection process.

Q. Oh, come on.

A. Don’t worry: there’s a way to recreate the drafts, using nothing more than basic logic.  If you examine the subcommittee rosters before and after a draft, you can deduce certain things using two principles:

1. Among senior subcommittee Members, when the seniority order does not change from before to after a draft, that implies (but doesn’t prove) a protected slot.

2. When a less-senior (by full-committee) Member appears ahead of a more senior Member, it proves the selection was made in a previous round of bidding.

These two principles allow us to often be able to recreate the full draft. Here’s a quick example, using a hypothetical subcommittee in which the Democrats are going from 5 to 8 seats, because they have reclaimed the majority:

Here’s how you back-out information about the draft order. We can see that Buchanan and Lincoln pitched this subcommittee. We can also see that Roosevelt must have pitched it too (only to get back on later), since otherwise he would be at least ahead of Carter, Bush, and Clinton, as they weren’t previously on the subcommittee. We can also be almost certain that Adams and Jefferson both protected the subcommittee, because if Adams didn’t, then Jefferson could have become chair simply by protecting it; likewise, if Jefferson didn’t, Buchanan would have had the same opportunity, as would have Roosevelt. Since that didn’t happen, it’s almost a lock that what did happen was that Adams protected it and so did Jefferson. We also know that Ford picked the subcommittee in a later round than Carter, Bush, and Clinton, since he has a higher full committee seniority but a lower seniority on the subcommittee.

Doing this kind of logic puzzle across all subcommittees will eventually yield the protected subcommittees, the draft order, and the actually draft picks of all Members. It takes a few minutes and you definitely need pencil and paper, but it’s actually kind of fun. I suppose it’s theoretically possible that a situation could arise in which some information can’t be known for certain, but I’ve done a handful of them and each of them has been fully solvable.

Q. What do the draft picks tell us about the committee?

A. Below is an example draft from the past, with the protections and draft-order picks (but not the third item we could generate: a 3-round draft order with Member names attached). This is from a year that the number of subcommittee seats was greatly increased, due to power transfer. Using the technique above, I backed-out the protections, the draft order, and the draft picks.

In this draft, there were 35 Members of the full committee (24 returning and 11 committee freshmen). Thirteen returning Members protected two seats, five protected one seat, and six protected no seats. So picks #1-17 were first round picks (the five no-protects plus the freshmen), picks #18-39 were second round picks (the 11 no or one-protects plus the freshmen), and picks #40-68 were third round picks (everyone, except there not quite enough seats for all to have a third subcommittee).

Defense (9 slots) [P] [P] [P] [P] [P] 2 4 5 6
Labor/H (11) [P] [P] [P] [P] [P] [P] 7 8 10 11 13
Energy and Water (9) [P] [P] [P] [P] 25 34 35 45 48
Transportation (8) [P] [P] 17 18 20 21 22 28
State / Foreign-Ops (8) [P] [P] 9 12 15 26 29 33
CJS(8) [P] [P] [P] 14 31 32 46 50
Interior (8) [P] [P] [P] [P] [P] 30 37 49
Agriculture (8) [P] [P] [P] 24 27 42 57 61
Homeland (9) [P] 19 23 38 44 51 55 56 60
Military Construction (8) [P] [P] 40 41 53 59 62 63
Financial (8) 1 3 36 38 43 52 54 66
Leg Branch (6) 16 64 65 67 68 69

A few things to note about this:

1. I’ve divided the subcommittees into three groups, based on how popular they were to protect, and how high their open seats went in the draft. It’s pretty clear that, from this draft, Defense and Labor/H were the most popular subcommittees among Democrats, and Financial Services and Leg Branch were the least popular. You can see that Defense and Labor/H were the most protected and the earliest picked; in fact, every returning Member of those two subcommittees protected their seats, all the other picks are for new seats. After the first pick took the chair of Financial Services, 9 of the next 11 picks went to Defense or Labor/H.

Conversely, Financial Services and Legislative Branch were not protected by anybody. That’s right: every existing Member of those subcommittees could have been the chair, but opted not to be. Now, in some cases the Member might have already been the chair of another subcommittee (you can only hold one), but in many cases this is not the case — people simply value a back-bench seat on Defense, Labor/H, or SFO more than a gavel on Leg Branch. That allowed the 16th pick to get the chair, and the 16th pick in the first round will always be quite far down the full committee seniority list, since protecting even one slot means you don’t have a first round pick. The only people who can pick in the first round are those who have pitched in everything, and the committee freshmen.

2. There appears to be one very strange pick, and that’s the #3 pick taking Financial Services. It’s odd because the pick could have been used elsewhere and the same seat been had during the second round (the Member with pick #3 also had second-round pick #23).

Q. Why are the subcommittee chairmanships so valuable?

A. Influence over policy, which leads to influence over politics. And also resources (staff, offices, etc.). In the world of subcommittees, the chairs tend to dominate. It’s really their show. And they are called cardinals, ahem.

Q. Are there external factors that influence how people pick and how the draft goes?

A. Sure. One issue is the size of the subcommittees. The number of seats can obviously vary, and the majority party has strong control over the number. Therefore, accommodations can theoretically be made if more Members are interested in a subcommittee than there are available seats. It’s not clear how common this is.

Second, the party chamber leadership almost certainly has an interest in who chairs the subcommittees, and may wield that influence prior to the draft. In any case, they have a strong say, because the subcommittee chairs are subject to approval by the DSPC and the caucus.

Q. They are?

A. Yes, just as with the Energy and Commerce, Financial Services, and Ways and Means committees, the subcommittee chairs of Appropriations are subject to a vote in the DSPC and the caucus. It is not at all common for them to be rejected by either body.

Q. So no one else does it this way?

A. Nope. The GOP uses a less-formal system in general for subcommittee assignment, and they don’t differentiate betweeen Appropriations and other committees. Ditto with the Senate. The House Dems are the only ones who use a formal subcomittee-seniority system.

Q. When does all this go down?

A. Not until after the election and the start of the new Congress. The committee caucus can’t meet until the Members of the Committee are chosen, and they can’t be chosen until the election tells us who’s  in Congress. Both parties usually convene in the weeks after the November congressional elections to hold the initial caucus meeting, at which they usually adopt rules and select leaders and work such things out. If there’s a sudden opening due to resignation or death, then a draft is held mid-session, after the new Member of the committee is named. But those drafts are less interesting, because there are, naturally, only a few open slots on subcommittees.

Previous “Q&A” style posts

March 2, 2012 — Filling the tree in the Senate.

December 15, 2011 — Rule Layover Waivers in the House.

December 5, 2011 — How a bill becomes a law. Literally.

November 29, 2011 — The other caucuses. The ones in Congress.


More on Member/Constituent Communication

April 3, 2012

Yesterday, I discussed the explosion of inbound email to Congress, and some of its possible impacts, particularly the way it alters a congressional office’s representational relationship with citizens and potentially has a nationalizing effect on politics, because of the difficulty of filtering out constituents from non-constituents. I don’t want to make too much of this, however, for a few reasons. First, it would be vastly overstating the case to say that email is nationalizing congressional politics. If it is having an effect — which we don’t really know, after all we’re just theorizing here based on some aggregate statistics and anecdotal evidence — the effect is a marginal one, and almost certainly pales in comparison to other nationalizing forces in congressional politics.

Second, I kind of (purposefully) set up of a strawman yesterday when I said there isn’t a sorting algorithm for constituent email. As most interns on the Hill know (and as several emailed to remind me yesterday!), there are techniques for filtering out non-constituent email. A little background: almost every congressional office uses a Correspondence Management System (CMS) to process constituent communications, the most popular being Intranet Quorum (IQ). The CMS has a database of all district constituents, and allows you to input all aspects of a constituent mailing — date, subject category, opinion, response, etc. — for the purpose of tracking both individual and district-wide communications data.

So one way to filter the emails — which almost all offices try to do now —  is to force constituents to fill out a web form when sending an email to the office that includes their address. That way, you can cross-check it with the CMS and determine whether the sender is a constituent. Of course, there are problems with this. First, it doesn’t work when people skip the web form and directly email staffers by finding out the email address of the LA on their topic of interest. Second, it requires the web form, which may dissuade actual constituents from writing. Third, it can be beaten relatively easily by anyone who really wants to flood Congress with opinion mail; whereas the old postal sorting system could only be beaten by postmarking stuff from each district, a strategic emailer needs only harvest an address from a district.

The end result is that a lot of the representational promise of email from the mid-90’s has not been borne out. At the outset of the email explosion, many people thought it might be a possible source of data for an office, one that could provide a good guide to district opinion. But at this point, it has largely become something that needs to be managed. The low cost of sending an email has resulted not in more useful communication from constituents, but just more work for interns and staff assistants to make sure that every constituent gets a timely response to their inquiry. And so the largest effect of the inbound email explosion has been on the structuring of the congressional offices: more low-level staffers than ever are assigned to correspondence work, but paradoxically the correspondence itself is of less value to the office.

Now, some will say this was always true of the postal mail. That its value to the office was entirely negative, it only created work in making sure that constituents got timely responses, and that the ideal point for any office was to receive zero constituent mail. Undoubtedly, in many cases that was (and is) true. If you are a solid pro-choice Representative, the only thing that pro-life mail does is generate staff work and resource costs in logging the CMS, printing out the form response for “pro-life constituent position inquiry,” and paying the postage to mail the response.

But I can also clearly remember instances of the mail being used to measure the balance of intense district opinion over hot issues. I worked for a conservative Democrat in 1998, who was very torn on impeachment. We tracked every district letter we received for three weeks leading up to the vote, and the fact that they were 70/30 against impeachment made a strong impression on the staff and my boss.And that’s something that I don’t think is possible with the email. Or at least not as possible as it used to be. And so ffices are left in an odd situation: many of them like to “see what the mail says” when they are thinking about hot legislative decisions, but the mail (and the phone calls in the age of cell phones and free long distance) is less representative of the constituency than it used to be.

But leave all this aside, because what I want to talk about today is the other side of the email explosion — the email and other electronic communications sent out of the congressional offices. I don’t think there’s any question that this side of the equation is not only fundamentally changing how congressional offices think about their constituent communication strategies, but also having a marginal effect on the nationalization of congressional politics, by offering Members the capacity to reach a national constituency that did not previously exist. And in the right circumstances, many Members might find strong incentives  to seek such national constituency. Now, we don’t want to go to far with this thinking; Members still get elected in districts by local constituents, and that’s always going to create an overwhelming incentive to focus on the geographic district first.

So with that caveat in mind, here are five points:

1. Electronic communications are different than old-school mail in three important ways. First, they have very low marginal costs. Sending franked mail to the district not only incurs a fixed marginal cost per letter, but also comes directly out of the Representative’s MRA in the House; any time you send a sizeable mass mailing to your district, it eats into the budget that could be used for staff or other resources. Electronic communications — be it email, social media, tele-townhalls, web advertisements, etc. — tend to have fixed capital or startup costs, but are then largely free on the margin.

Second, congressional offices are not limited as to who they can contact with electronic communications. Following a federal court action (Coalition to End the Permanent Government v. Marvin T. Runyon, et al., 979 F.2d 219 (D.C.Cir. 1992)), the Rules of the House were amended to restrict Members from sending franked mail outside of their districts. So it’s not even possible to reach a wider-than-district audience with postal mail. Electronic communications, however, are not so limited. Members can build email subscriber lists — many offer such subscriptions immediately upon entering their website — and the use of social media tools like Facebook, Twitter, and YouTube allow Members to broadcast and interact with a potential constituency far wider than their geographic district, if they want.

Finally, electronic communications are fast. This is obvious, but it has important ramifications for how congressional offices choose to use it and how it shapes their communications strategy. Once upon a time, if you wanted to send out a tick-tock on the movement of a policy of interest through the floor, the only outlet was more or less to fax a press release to any newspaper that might listen, which invariably meant the local newspapers in your district. There was no point in trying to send postal mail directly to constituents at that speed. Now, however, you can tick-tock floor activity or other business to subscribed email lists or social media instantly, and if you want to send unsolicited mass communications to non-subscribed citizens, the lack of printing time and postal costs let you move them quickly through the franking commission and out the door.

2. The use of franked mail is at record-lows; the use of electronic communications has skyrocketed. The above is all great in theory, but what’s actually happening on the ground? Well, for one, the total cost franked mail coming out of Congress (adjusted for inflation) is at its lowest point since Congress began reimbursing the Post Office for congressional mail costs in fiscal year 1954. In nominal dollars, franked mail costs are down to $12.8 million in FY2011, from a high of over $113 million in FY1988.

Now, the steep decline in mail costs between the late 80’s and the mid 90’s was due mostly to two reforms: public disclosure of mail costs for individual Members, and direct charging of Members’ budgets for the cost of mail they send, instead of allowing unlimited mailings from a common funding source. But there’s a more telling decrease in mail costs in the last eight years, which is somehwhat masked in the chart. Here are the odd-year mail costs from FY2003 to FY 2011:

FY2003: $19.3 million

FY2005: $17.5 million

FY2007: $17.5 million

FY2009: $16.8 million

FY2011: $12.8 million

That’s a 33% drop in just five cycles. And comes during a period when the price of a stamp (which is a rough measure of postal cost inflation) went from 37 cents to 44 cents, more than a 20% increase.

(As an aside, the pattern persists of more mail being spent in even-numbered fiscal years than in odd-numbered years. While many observers have attributed this to the increase in mail sent prior to the elections, the truth is actually more complicated than that. The single month with the most mail sent during any Congress is almost always the December of the first year, as many Members send out end-of-session newsletters. By quirk of the fiscal calendar, which start in October, that means that the two peak months of franked mailing — December of the odd-year and the more modest increase in the two months before the pre-election cutoff in the even-number year (June and July) — happen to fall in the same fiscal year, distorting the stats. If you go by calendar year, there is almost no difference between election-year and non-election year mail totals, as the two peaks cancel each other out. I will do a full blog post on this someday.)

Well, how about the other side of the coin – what has happened to electronic communications coming out of Congress? We don’t have quite as fine-grained data as we do on the postal side, but we have a good proxy: the volume of “mass communications” (defined by the House as “unsolicited communication of substantially identical content to 500 or more persons in a session of Congress” which includes things like mass unsolicited emails, web or print advertisements, radio spots, newspaper inserts, etc. the House has been tracking this data since FY2009. Basically anything you send unsolicited to a whole bunch of people. The chart below shows the volume of quarterly mass postal mailings in the House from 1997 to 2008, and then the quarterly volume of all mass communications (which include postal mailing) from 2009 to 2011.

This graph should be striking. Mass postal mail volumes follow a familiar pattern of peaking in the last quarter of the first year of each Congress (from the December newsletters) and then again in the period preceding the election, and then drop off in the prohibited period (late 3rd quarter and early 4th quarter of election years) and the lame duck 4th quarter of a Congress as well as the 1st quarter of a new Congress. In the first Congress in which mass communications were tracked — the 111th, 2009-2010, a similar pattern was observed, albeit at a naturally greater scale (since mass communications are inclusive of mass mailings). But then in 2011, in the first session of the 112th Congress, the mass communications simply explode, to something like approaching 10 times the volume of mas communications sent in the first quarter of 2009.

My instincts tell me this isn’t due to radically-increased use of mass faxes or mass newspaper inserts. This is almost certainly electronic communications of the internet age, taking off for real out of congressional offices. I have not examined the data carefully yet at the individual level, but I think there’s good theoretical reasons to believe that a lot of it can be attributed to two things: first, the influx of 90+ new House Members, most of whom have come to politics in the information age. Second, and related, is the effect of the 2010 election, in which social media and electronic communication played a large role in both campaign information dissemination and fundraising strategies. Freshmen Members are arriving in Congress already electronically plugged-in to large networks of constituents and non-constituents through email lists, Facebook accounts, Twitter feeds, and other media. In short, times are changing and young replacement Members are most savvy to it. That would be my guess, at least.

Anyway, with the outbound data trends out of the way, let’s get back to the more speculative talk about the impact this might be having representation:

3. The opportunities for surrogate representation have seemingly incrased. In her excellent APSR article, Jane Mansbridge defines surrogate representation as happening when Members represent constituents outside their district. In the traditional formulation, this often happens around specific issues with dispersed national constituencies: Dennis Kucinich representing anti-war advocates, Barney Frank representing gay rights advocates, and so forth. My sense is that, twenty years ago, very few Members were engaged in such surrogate activities. They simply did not have the resource capacity. Members were (and still are) of course barred from sending franked postal mail outside of their districts. The only way to get a national audience was to get on TV — which usually meant having at least the power of a committee chair, or doing something extraordinarily provocative. And it would have been crazy to suggest spending any significant portion of campaign money on outside-the-district activities.

Today, the entire playing field has been rearranged. Even backbench Members can seek a national followings with relative ease, and at virtually no cost. The Internet, and in particular the social media application like Twitter, Youtube, and Facebook, have zero marginal cost. One can stake out an issue, make a concerted effort to become a national leader on the issue, and have some chance of success, all without expending pretty much any marginal resources. The upside is clear: national leadership on issue means a higher political profile both inside and outside the House, more campaign fundraising opportunities, and (lest we forget) greater opportunity to influence public policy. My sense is that Members are beginning to alter their representational strategies around these facts: connecting themselves to national movements, inserting themselves into national policy debates more often, and modifying their fundraising strategies to more optimistically look for out-of-district money. And the more that Members engage in surrogate representation, the less they engage in traditional district representation.

4. There may be electoral pressure to nationalize representation. But it goes deeper than this. Electoral challengers may be nationalizing their representation, too. Why wouldn’t they? If a Twitter townhall  focused on a national issue or a viral youtube clip can expand your potential fundraising base, get your name in faraway papers, and maybe get you invited onto a cable news show, there’s almost no incentive not to do it. Add on that nationalizing a challenger campaign can create an army of pseudo-activists to target the incumbent and its a no-brainer. And thus Members choosing not to undertake a new media strategy might at a serious disadvantage. And pretty much any new media strategy is inherently a nationalized strategy from a infrastructure perspective.

5. Such trends would be in conflict with the basic electoral logic and Fenno-esque model of constituent relations. Certain things have not changed. The most important, of course, is that only people in the district can vote. But there are other important things too: district offices have to be in the district, franked mail still can only go to the district, and so forth. So the electoral connection, and most of the resources available to maintain it, are still tied squarely to the district. And this means that Members will always be tied, first and foremost, to the district. The largest Fenno constituency that the Member has — the geographic constituency — still rules. But it may not be the largest constituency the Member sees anymore when he looks bak home from Washington. The national constituency may now enter his or her thinking — whether he wants it or not; whether he knows it or not — in a way that fundamentally rearranges the lens through which he sees his district.

This has potential implications. The most important thing that comes to mind is that the Member may greater incentives now than ever to try and shape his district in a more national mold. This would be akin to Mansbridge’s idea of “educating” the constituency under an anticipatory representation model. But it might just be a Member choosing to frame issues in the district in a national way, or choosing to emphasize national over local issues when communicating to the district.

6. But the constituents themselves may be nationalizing. Nationalizing their representational profile, of course, is also potentially dangerous from a Member perspective. As Mayhew writes in The Electoral Connection, Members treat national partisan or ideological swings as acts of god that they can’t control; they instead focus on what they can control, mostly district-related things. To tie one’s fortunes to the national party is to place one’s future in someone else’s hands. But this may dovetail with what is happening to constituents: it’s not crazy to suggest that voters themselves are nationalizing as well. And if that’s the case, then Members may be forced into a national representational context, one that affords them less safety from trends they cannot control.

Now, again, we don’t want to go overboard here. The electronic communications are at best having a marginal effect on nationalization of politics or transformation of Member offices, and the effect is almost certainly indirect if anything: by increasing the capacity of Members to nationalize, it offers a greater strategic menu of options to Members who might want to go that route. But working in concert with other nationalizing forces — the centralization of party power in Congress, the nationalization of fundraising, the breakdown of local and regional media structures, etc. — I think it may be playing a bigger role than is currently appreciated.


On Writing your Congressman

April 2, 2012

[This is part 1 of a two part post; for part 2 click here]

It’s no secret that the Internet has radically transformed the practice of legislative politics on Capitol Hill. Information is everywhere, and moves like lightning. And so I’m going to spend a few days writing some quick posts about one dimension of the change — changes to constituent communication — which is exemplary of the bigger picture of technological changes on the Hill.

Despite the somewhat obvious nature of the basic thesis — the information explosion has altered many aspects of legislative politics — people sometimes underestimate the magnitude of the change. After all, some of the trappings of the Hill give off the appearance of an institution and a culture that strongly defies technological change. Official politics still takes place face to face, both on the floor and in committee, in their office; Members still physically walk from their offices to the floor in order to debate and cast votes; and heck, the Senate still votes by calling the roll, no different than they did in the 18th century. The visible practice of politics, as seen on C-SPAN or gleaned from walking around the Hill,  is hardly different than it was in 1960. Or 1860, for that matter.

But below the surface, things have radically changed. Members no longer seek information so much as look for better ways to sort and filter it. Staffers are no longer chained to their desks and their hard-line telephones. And, perhaps most importantly, the relay of information from the Hill to the rest of the country (and vice-versa) has been reduced, time-wise, to basically zero. As soon as it happens here, it’s known everywhere. And not only is the information relay faster after something happens, but the outside, non-Hill world feels closer to the policy-making process before anything happens. And that has consequences.

And the most basic consequence is that which corresponds to the most basic feature of a legislature: the representation of a body of constituents by an elected individual, and the communicative relationship between the constituents, the representative, the election, and the political and policy decisions the representative makes. To which I present figure 1, which plots incoming mail to the House and Senate since 1996, as a function of delivery medium. The top line (black) is incoming emails, the bottom line (red) incoming postal mail.

If you don’t work in politics, this graph is probably pretty striking. If you do, it’s probably either familiar or terrifying, or both. Members of Congress interact with constituents in a variety of ways: in person, both in their districts and in Washington; over the phone when people call their offices; and through the mailing of letters. We can’t say for sure how many people a Member meets in person or how many phone calls come to the Hill each day. But I think it’s safe to say that, traditionally, neither of those forms of communication ate up nearly as much time as the mail did in a congressional office. The mail comes three times a day in Congress, and it’s unrelenting.

At least that’s my recollection from 1998, when I was a lowly intern in the House and spent much of my day opening it. And so it makes me shudder to think that, back then, the postal mail was still the majority of mail that came to Congress. Since then, of course, it has fallen (about 16% less postal mail incoming to the House since 1998, down from about 15 million pieces to about 12 million pieces). But it’s been replaced by three hundred million emails. In fact, postal mail is now just 7% of all mail coming to the Hill. And that 7% is actually 100% of the mail that was coming in 1994. Terrifying.

A few things worth discussing:

1. First, some technical details. Email was first available and used on the Hill in late 1994 or 1995. No hard data exists on total usage prior to 1996, and data for 1996 and 1997 are only estimates. Second, incoming postal mail does not include mail sent to district offices, just mail sent to the Capitol complex in Washington; email volumes include all mail sent to House or Senate email addresses, regardless of end-user location.

2. More technical stuff. The email numbers are post-spam filters (i.e. only mail that actually reached end-users). This makes them slightly difficult to compare year to year, since the spam filters (as well as the spam senders) have gotten dramatically better over the years. In fact, the large peak in 2007 and the drop-off following it are almost certainly do to the explosion of more intelligent spam and the corresponding adoption of powerful new and improved spam filters in both chambers that year. The lesson, as always, is that these numbers represent a trend, not precise reflections of reality, and should be treated with that in mind. Especially since the spam filter for postal mail — an intern throwing the junk mail in the garbage can — has not changed during the period.

3. With postal mail, it was always easy to know if you were being written to by a constituent or by someone from outside your district. The rule of thumb for sorting such mail is typically something like this: if it’s a constituent or interest group from our district, put it in the pile for things that we will promptly respond to; if it’s a constituent from outside our district, put it in another pile for things that we will promptly deliver to the correct office; if it’s a interest group from outside our district, look through it quickly and see if it’s personal or a form letter / mass spamming. If it’s the former, consider responding. If it’s the latter, definitely trash it.

The problem with email, though, is that you can’t tell if the sender is from the district or not. And there are quite obvious incentives to not exclude anyone who might be a constituent. And so the incoming email has a tendency to nationalize the constituent communications techniques used in most Member offices; there’s just isn’t a sorting algorithm that  lets you separate your constituents from other citizens.*** Which means that the information context Members are facing in their offices is much more national in scope, even after they’ve tried to filter it. This has consequences. For one, it forces a complete rethinking of an office communications strategy. But it also distorts one’s perspective of district opinion, and tends to orient Members toward national public policy; people from outside the district are much more likely to communicate about policy issues than distributive politics such as grants or earmarks. More on this tomorrow.

4. From an institutional point of view, one key consequence of this explosion is the pressure it puts on congressional staff. Constituent and/or interest group service and communications is an important aspect of what goes on in Members’ personal office, but it is far from the only thing that goes on. To the degree that more staffers need to be allocated to the collection, processing, and responding tasks associated with incoming communications, the less staff time that there can be allocated to policy or other work, or the longer hours staffers need to put in. And while the number of staffers working in personal offices has increased modestly in the last generation (about 6% increase in Representatives’ offices since 1982), the prospects for a significant future increase — namely the proposition of a substantial increase in the Representatives’ MRAs or the Senators’ SOPOEA — seem quite dim.

*** This was (somewhat) sloppy writing, to make a point. I probably should have said “definitively lets you separate,” since there are certainly methods to filter out some non-constituents, the most popular being the IQ CMS software. I address the pros/cons of IQ in my followup post. The most important problem is that while IQ easily filters out people who weren’t trying to send you non-constituent mail, it is easily and routinely beaten by those who are strategically and purposefully sending mail disguised as constituent mail.


Supreme Court Justice Venn Diagaram #2: John Roberts

March 30, 2012

[Citations for appeals to common sense here and here (Chertoff), here (maj. op. pg 11) and here (Roberts), here (Paine).]

Previous Venn Diagrams


Clarence Thomas, 3/29/12


Michele Bachmann, 12/22/11

Newt Gingrich , 12/19/11

Jon Huntsman, Jr., 12/20/11Up

Willard Mitt Romney, 12/21/11

Rick Perry, 12/23/11

Herman Cain, 12/25/11

Rick Santorum, 12/28/11

Ron Paul, 12/31/11


Supreme Court Justice Venn Diagram #1: Clarence Thomas

March 29, 2012

Previous Venn Diagrams

Michele Bachmann, 12/22/11

Newt Gingrich , 12/19/11

Jon Huntsman, Jr., 12/20/11Up

Willard Mitt Romney, 12/21/11

Rick Perry, 12/23/11

Herman Cain, 12/25/11

Rick Santorum, 12/28/11

Ron Paul, 12/31/11

1 Comment


March 28, 2012

[updated to reflect first comment]

There’s not a week that goes by in which I don’t end up debunking some urban legend about congressional perks. That Members don’t pay social security. Or that they get free tax advice. Or that they get free health care. Or whatever. Virtually none of it is true, as we will see below.

Well, at least not true anymore. Once upon a time, there were a fair number of things that could be classified as Member perks. Right through the 1980s, in fact. But in the wake of the House Banking Scandal, the House Post Office Scandal, and the 1992 election — perhaps the only true anti-incumbent congressional election ever, save 1854 —  the perks were more or less eliminated. In fact, for all the solid, institution professionalizing reforms that the GOP instituted in 1995 (which I still believe is their most important positive legacy), the period between 1990 and 1995 was also a highwater mark for reform efforts, particularly those aimed at cleaning up the image of the institution.

And I’m reminded of a story former Speaker Carl Albert tells in his 1990 autobiography, which so perfectly captures the old-school mindset about these sorts of perks.  The story is about 32-year Representative Tom Steed (D-OK). Steed was confronted by the local paper in Oklahoma about his taking of congressional perks, including flying first-class back and forth from his district to DC. Steed supposedly responded, “What the hell, I’m a first-class Congressman.” And in the autobiography, Speaker Albert doesn’t knock Steed. Quite to the contrary, he applauds him. “He was a first-class Congressman.” And so times change.

Here are some common perk questions I get asked, and the answers to them:

Do Members pay Social Security?

Yes. Prior to 1984, federal civil service employees didn’t pay social security, nor did they receive social security benefits. Instead, they had a separate retirement plan, the Civil Service Retirement System (CSRS). Under P.L. 98-21, federal employees hired after 1983 had to pay social security, and all Members (regardless of when first elected) have to pay social security. Since CSRS wasn’t designed to interact with Social Security, federal employees (including Members) who began service after 1984 were eligible for a new retirement system, the Federal Employee Retirement System (FERS).

Do Members receive free or reduced rate health care while serving?

Incumbent and retired Members are eligible for the Federal Employees Health Benefits Program (FEHBP) under the same terms as other federal employees.  The cost of the premiums are split between the employees and the federal government. The current formula comes from the Balanced Budget Act of 1997 (P.L. 105-33), which sets the government contribution at 72% of the average premium of all plans  but no more than 75% of the premium of any individual plan. By comparison, according to the Department of Labor, private sector employers’ share for coverage is 81% for individual coverage and 71% for family coverage.

Do Members receive reduced rates for services of the attending physician?  Do Members receive reduced rate prescription drugs?

For an annual fee ($503 in 2010), Members can get basic health services from the Office of the Attending Physician in the U.S. Capitol and five other Capitol Hill locations. Dependent care is not included, nor is surgery, maternity care, dental care, or eyeglasses. Prescriptions may be written, but not filled, except for starter doses and emergencies. In the past, Members were eligible for services, including prescriptions, of the attending physician at no charge. In 1992, both the House and Senate eliminated the prescription benefit and instituted annual fees for the services.

Do retired Members get reduced-rate medical care?

No. They receive the same benefits as other federal employees:  a one-time election to continue  in FEHBP as a retiree, assuming they have been in it for five years and are eligible for an annuity.

Do retired Members get special pensions?

Sort of. Members can participate, as do other federal workers, in either the CSRS (if they were elected prior to 1984) or the Federal Employee Retirement System (FERS). The only difference between Members and other federal workers is that Members (as well as congressional staffers) have slightly higher contributions to the retirement systems, but are eligible for slightly higher benefits at slightly lower ages, with somewhat shorter vesting requirements. The rationale behind this is that congressional employees — be it Members or staffers — have somewhat less job security and therefore less certainty about their tenure.

Do Members receive reduced rate life insurance?

Members can participate in the Federal Employees’ Group Life Insurance Program (FEGLI) under the same terms as other federal employees.

Do Members receive reduced rates for use of the Capitol gym or other athletic facilities?

Both the House and Senate maintain a private gym for Members’ use. The annual fee for Members is about $250.

Can Members obtain free tax help from the IRS?

Until the 1990s, both the House and Senate opened temporary tax assistance offices to answer questions regarding tax return preparation. These offices were open to the general public and available for anyone to use, although by dint of their location, the services naturally were enjoyed mostly by Members and congressional staff. In 1994, the House discontinued the practice. The Senate discontinued the practice a year later.

Do Members receive reduced rates for use of Capitol restaurants, dry cleaning services, or barber/beauty shops?

Capitol restaurants, dry-cleaning vendors, and beauty/barber shops provide services at prices comparable to market rates. Some services — such as the House barber shop and beauty salon — have been privatized; others remain publicly run. Prior to changes made between 1992 and 1994, these services were often available at reduced rates. Members, however, have never received official rates that differed from staffers or from the general public.

Do Members have the option of buying furnishings from their House or Senate offices when they cease being Members of Congress?

In the House, departing Members can buy a standard Member desk and chair from their Washington, DC, office. The cost of the desk is  approximately $1,000 and the chair $500. Under House Administration Committee regulations, Members-elect may choose to acquire any furnishings and equipment currently located and in use in their predecessors’ district offices. Any furniture and equipment not selected and retained for use by them, may be purchased by outgoing Members.

In the Senate, departing Senators may purchase office equipment located in their Washington, DC, or state offices, subject to certain restrictions. They may purchase only one of each type of equipment, and it must have reached the end of its expected useful life and been declared surplus to the needs of the Senate by the Sergeant at Arms at least 30 days prior to the end of a Senator’s tenure. A departing Senator may also purchase his or her Senate chamber chair. Within 30 days of leaving office, a departing Senator has the option to purchase any furnishings provided by the General Services Administration (GSA) in one home state office. The purchase shall be at depreciated fair market value prices and in accordance with regulations prescribed by GSA.

Do Members receive special parking privileges at Reagan National Airport or Dulles International Airport?

Members have received free parking in preferred lots at Reagan Washington National Airport and Dulles International Airport since the facilities opened in 1941 and 1962, respectively. However, this benefit is not specified in statute; the parking spaces are provided as a courtesy by the Metropolitan Washington Airports Authority. A legislative attempt to explicitly deny the benefit was defeated in the Senate in 1994 (S. Amdt. 1632 to S. 540, 103rd Cong., 2nd sess., Apr. 20, 1994).

Are there really free ice deliveries to Member offices on Capitol Hill?

Not anymore. It was discontinued in 1995.

Can you get a free or really cheap carwash in the Capitol Hill parking garages?

Not anymore. They were discontinued in the Senate in 1991 and in the House the following year.

Isn’t Congress exempt from civil rights and labor laws and such?

Nope. The 1995 Congressional Accountability Act applies 13 major workplace safety and other occupational laws to Congress, which previously did not apply to the legislative branch. One exception is the Freedom of Information Act. Of course, there’s a good reason for that: it may very well be unconstitutional to apply it; the speech and debate clause may prohibit it.

Do Members get to send constituent mail, and drive in fancy cars, and fly around the country, all for free?

Not really, and certainly not compared to how they used to. Once upon a time, Member travel and constituent mail costs were paid for in more or less unlimited amounts by the House. Members were given a certain number of trips they could take home to their district, but the cost of individual trips wasn’t really limited. Constituent mail was regulated as to what Members could send under the frank, but not how much. Even more to the point, Members did not have personal limits on how much mail they could send, nor did they have to disclose publicly how much they personally sent. It all came out of a general collective House account.

Contrast that with the system that emerged after a series of reforms were put in place between 1986 and 1998. Members may now travel to their district as often as they want, and they can still send as much franked mail as they want, but there are two general rules. First, all expenditures are now public. So every penny that Members spend on travel and/or franked mail is disclosed. Second, Members now have personal accounts (under the MRA system) from which all of their expenses are drawn. You can view the allowed and prohibited uses of the MRA here.

By formula, Members get roughly $1.4 million dollars each year in this account, which is used to pay their staff, buy office supplies, rent a district office, send mail, and travel. The upshot is that, unlike in the past, Members now have economic choices to make about franked mail and travel: every time you send franked mail or travel back to your district, you have less money to hire staff. The results of these reforms have been stunning: total franked mail expenditures in the House have decreased from over $77 million dollars in FY1988 under the old system, to just over $11 million in FY2011.

In effect, the combination of public disclosure and the market reform of fitting franked mail into the Members’ budgets has effectively incentivized more conservative budgetary behavior of Members. The larger point is that, yes, Members can still rent cars to use for official purposes, but the expenses for those rentals are now not only publicly disclosed, but also come at the cost of other possible uses of the money. Those two things won’t stop a determined Member from leasing a luxury car for official business if they really want to, but it does greatly disincentivize it. And I think it does take it out of the realm of perks.


How’s your 302(b) looking? Strong…to quite strong

March 27, 2012

Later this week, the House is scheduled to consider H.Con.Res. 112, the FY2013 Budget Resolution.

Well then. Congressional budgeting.

I’d like to discuss one particular institutional feature of the appropriations process — the 302(b) allocations of the Appropriations Committee — but in order to understand that, you need at least something like a bare-bones understanding of the overall congressional budget process, which is as complicated as anything else that occurs in the House and Senate. So let me take two paragraphs and try to succinctly lay out how it all works. If people are interested, perhaps I’ll do a Q & A style post later in the week on the overall process.

Ok. Bare-bones basic federal budget process in five sentences. At the beginning of a fiscal year, the agencies of the federal government begin developing their budgetary plans for the following fiscal year, which are aggregated and vetted by OMB and others in the President’s administration. Under law, the President is required to submit to Congress by early February a comprehensive Budget of the United States for the fiscal year that begins the following October 1. The budget includes proposals and an accounting of  incoming collections (revenue and offsetting) and spending (authority, obligations, and outlays), following standardized government accounting practices that have developed over the years. Under the Constitution, no money may be drawn from the Treasury except by appropriation made by law, and therefore Congress must either pass annual, multi-year, or obligation-creating laws that provide the budget authority requested by the President, or ignore the President, make their own budgetary judgements, and provide that amount of budget authority.  In addition, Congress must provide either a mechanism for revenue or other collections to cover the spending, or an authorization for the United States to incur debt.

Got it? Good. Bare-bones basic congressional budget process in five sentences. Beginning in 1974, Congress has enacted a series of laws and chamber rules that require legislators to adopt a resolution that sets for the aggregate levels of revenue, spending, deficit, and debt limit. Under law, the Budget Committee reports — and the chambers approve — a concurrent resolution that provides these budgetary projections or the upcoming fiscal year and future out-years, as well as mechanisms to constrain both direct spending (i.e. entitlement spending) and discretionary spending. Direct spending is controlled through the process of reconciliation instructions, which may instruct the standing committees that have jurisdiction over various direct spending to report changes to those programs. Discretionary spending is constrained by providing an allocation (known as a 302(a) after the Budget Act of 1974 section it comes from)  to the Appropriations committees, which sets a maximum amount of budget authority that the committee may report to the floor and provides points of order against consideration of bills which exceed the limit.

Got it? Good.  Now here’s where it gets interesting. What effect does the existence of the 302(a) allocation have on the House Appropriations Committee?

A huge impact. And lots to discuss.

First, what actually happens when the Appropriations Committee gets the 302(a) allocation from the approved budget resolution? Under law, they are required to divide it up among the subcommittees, into what is know as 302(b) allocations, which they then approve and forward to the floor. (Here’s an example). These 302(b) allocations are the maximum amounts which each subcommittee may report to the floor in their bills, and are enforced by points of order on the floor. If you step back for a second and give it some thought, you might arrive at a logical institutional conclusion: under the 302(a) and 302(b) system, individual subcommittees of the Appropriations Committee are not particularly capable of reducing spending, since they are set in competition for part of what is ultimately a fixed-size pie. And, indeed, that is what you often see with the subcommittees; absent an ability to constrain aggregate spending by reducing their own consumption, the subcommittees instead jockey and lobby for larger shares of the already-decided whole pie.

This arrangement has consequences big and small. From a macro point of view, the very existence of the 302(a) pushes the bulk of the labor to restrain spending off of the Appropriations Committee and onto the Budget Committee, both intellectually and functionally.  Prior to the existence of the 302(a) allocations, the Appropriations Committee was front in center if federal spending created huge deficits or was otherwise seen as too high. And consequently, the committee was regularly stocked by somewhat more fiscally conservative Representatives and led by fiscally conservative chairmen, who often saw their primary job as oversight, not appropriations.  Under the modern system, on the other hand, the Appropriations Committee cannot exceed the 302(a) allocation  both chambers of Congress have just approved. And thus the duty to constrain spending falls on the Budget Committee, rather than the Appropriations Committee.

As described above, at the micro-level this has serious consequences for how the subcommittees operate. Imagine you are a subcommittee clerk working with a subcommittee chair. Even if you care about restraining aggregate spending, you can’t really do that. You can certainly restrain your own subcommittees spending, but that shouldn’t be mistaken for restraining aggregate spending. For if you deliver a bill that comes in below your 302(b) allocation, the portion of your allocation that you didn’t use can simply be transferred for use on another bill coming out of another subcommittee. In fact, the Appropriations Committee is authorized to, and routinely does, reserve a portion of the 302(a) allocation to the full committee, which it can then use as needed if unforeseen budgetary situations arise between April and when the bills are finished later in the summer.

This points to another strategic dynamic: it’s not the worst thing in the world to be one of the last bills the committee reports out to the floor, because there’s often a bunch of money left over in the 302(a), either because the full committee’s reserve has not been used, or because spending was cut through amendments on the House floor. That’s right, when floor amendments cut spending, the equivalent spending isn’t taken out of the 302(a) allocation, and therefore it’s quite difficult to constrain aggregate federal spending by using floor amendments to cut an individual bill. Even worse, an amendment could be offered behind you to put the money back in to a different part of the bill.

Both of these concerns are somewhat mitigated by the “spending reduction accounts” created under rule in each bill at the beginning of the 112th Congress, which traps money cut by floor amendment in a functionally-fictitious account within the bill, theoretically blocking attempts to reinstate the money or to transfer it out of the bill. Even this, however, is far from airtight, since it doesn’t actually adjust the 302(a) allocation, and therefore doesn’t preclude use of reduction funds at a future stage, such as during consideration of a conference report. And in the House, the leadership can usually resort to a special rule to block points of order, if necessary, so long as they can get their caucus to support the rule.

In a very tight fiscal climate, of course, none of this really matters. When each appropriations subcommittee is facing the possibility of a net cut in funds relative to the previous fiscal year, there are very few Members or clerks seeking to further reduce funding beyond their 302(b) allocation. And consequently, it truly becomes a question of trying to get as large of a piece as possible from the divided pie. It’s not an exaggeration to say that the 302(b) allocation is the key piece of information that the subcommittee is waiting all Spring to receive. What are they doing in the meantime? Well, mostly working with the agencies under their jurisdiction to understand and conduct oversight of the agency budget requests and justifications, holding related hearings on those requests and justifications, and doing both formal and informal budget drills. But sometimes, eventually,  just waiting around for the number.

The budget drills — which are nothing more than producing proposed numbers for your bill and seeing how it adds up — are in some ways key. It’s common for the full committee front office to request that the subcommittees do formal drills at different allocation levels (say, flat, 1% increase over last year, 2%, and 3%), and report back their findings to the front office. Such exercise are both instructive practice and strategic opportunities for the subcommittees, who are of course jockey and lobbying for their 302(b) allocations. They allow the subcommittee staff to see how short they are against competing agency requests and therefore begin to plan priorities, but they also allow them to highlight to the front office how bad a low-end allocation might be for  items in their jurisdiction. And so the strategic incentives are often to report budget drill numbers that are the equivalent of agency threats to close the Washington Monument; it’s helpful to spot drill shortfalls in highly visible locations. Double helpful if you are in a zero-sum competitive environment and every other subcommittee has the same incentive.

Now, I’ve barely scratched the surface here. There’s a lot more that can be said. But my bottom line is that observes often overlook how the modern congressional budget process has affected the appropriations process. The reality is that it has fundamentally transformed it, both formally and in the practices and strategies employed by the subcommittee staff and chairs. Not necessarily for better or worse, but definitely for sure. And while there have been lots of changes to the practice of appropriations in the last few decades — most notably the larger role of the leadership in developing the subcommittee bills, the increased use of special rules to block floor amendments to the bills, the increased power of the full committee over the subcommittees, and the proliferation (but eventually shut off) of the earmarking within the bills — it’s my hunch that a lot of the changes are, at root, connected to the existence of the Budget Act and the constraints of the 302(a)-302(b) system.

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At the corner of East Capitol and 1st Street NW

March 26, 2012

So I walked over to the Supreme Court this morning, around 11:50am, after day 1 of oral argument ended in HHS vs. Florida, aka Is Obamacare Constitutional?

Every time I see or go near a public political protest, I’m reminded of something my dad — who was no stranger to a good Vietnam anti-war demonstration — used to always say: the only rational reason to go to a street protest is to meet girls. Period.

But, then again, he brought some of his liberal elitist’s narrow mindset to the term rational. Street protest certainly seems not only appropriate, but almost necessary for those shut out of the normal democratic process (i.e. African-Americans denied the right to vote; people under 21 who were being drafted pre-26th amendment; etc.). Not that any of that applies in this case. But as a libertarian, I’m willing to let a thousand flowers bloom; neither the means nor ends of others’ peaceful political activities need be rational in our own eyes. And the very practice of political activity, no matter how irrational or wacky, probably has some significant civil society benefits.

Anyway, here are some photos I took. I have a few thoughts — none addressing the constitutionality or soundness of Obamacare, you have ten thousand better source options than me for that today— below the pictures.

An anti-ACA protester, with Court in background. Hmmm... I do prefer declared wars to undeclared ones.

A news conference and a protest, with the Capitol in the background

This picture shows the crowd. I took it from the steps of the Court plaza

Here are three things I was thinking about as I walked down 1st Street NE:

1. The scene in front of the Court was not particularly memorable. Pretty weak showing by the demonstrators today. Maybe that was because no one cares about the Anti-Injunction Act and everyone is saving their big guns for tomorrow. Maybe it was because this is just another stop on a multi-year protesting circuit around this issue. It certainly wasn’t the weather: a windy but otherwise beautiful March day in Washington, with flowers in bloom and barely a cloud in the sky. By the time I got there, the grassroots protesters were easily outnumbered by the suits and media and, well, people like me, down there to take it all in and gawk. There was very little animosity; I saw a handful of cross-ideological chats going on. No slogans being shouted. Pretty serene, actually. Nothing compared to the major right-to-life protests, which are easily 100 or 500  times as large.

Now, this is not to say that I was disappointed. I think everyone should take a walk by the Supreme Court at least once in their life as a major case is being decided. It’s a very small-r republican feeling. And an instructive one too. The Court building itself is an iconic backdrop; you are directly across the street from the Capitol. The attorneys and interest groups hold dueling news conferences, like trial-lawyers from the movies. Reporters and photographers have massive setups, which serve to remind you that so much of this is staged, and so much of the television coverage scripted. And, most importantly, there’s a sense when you stand among the protesters that you are at the very interface of citizen and government in a republic. Also, markets in everything:  if you went there today, you got to see the people being paid to wait in line for entry into tomorrow’s oral arguments.

2. There’s no way around the fact that protesting at the Court is logically awkward. Despite what my father says, I understand the motivations of grassroots demonstrators and protest lobbyist. As I’ve written about before in the congressional context, they believe (probably correctly) that they are influencing policy in some way. But standing outside Capitol South Metro trying to influence staffers is quite different than standing outside the Court, because, well, the Court simply isn’t beholden to public opinion the way legislators are. Now, that’s not to say the Court isn’t influenced by public opinion, just that it’s exceedingly unlikely Anthony Kennedy is looking out his chambers’ window and being shaped by protesters standing on the plaza. If anyone in the government is insulated from public pressure, it’s the Court.

But I think everyone kind of knows this. Even the protesters. And that’s why it’s so odd to go to a protest at the Court plaza: no one there is really trying to influence the Court, at least not directly. The whole game, as with most protests, is to try to influence the national media, who can then file stories that influence public opinion or legislative opinion, or both. Every time I go to a protest at the Court, I always think the protesters are facing the wrong direction: standing there on 1st street, they all have their eyes up on the columns of the courthouse (odd to call it that, isn’t it?), and their backs facing the United States Senate. But try to explain to some intelligent alien what is going on, and his eventual question would almost have to be: why aren’t they standing on the steps of the Senate, or at least looking that direction?

Now, people will claim this is the case with street protests over congressional policy. That the whole point is to influence the media, either to distort public opinion as it is seen by legislators or to change actual public opinion on an issue. That’s true in many cases, but it’s not always true in Washington. The protests and demonstrations at Capitol South metro are there specifically to try to directly influence Congress, without the media middle man. Which sort of reinforces the underlying point: protests at the Court are inherently media events; there’s no other reason to be standing in that particular spot. You aren’t trying for direct influence, and you don’t need to be in Washington. So it strikes me as mostly a coordination game among the protesters or, perhaps more likely, a convenience factor for the press, since they have to be there anyway. I’m not saying it’s not the logical place to conduct the protest. It is.

But even a cursory logical inquiry into it makes you realize the protests are more about the 2012 election that about the court case at hand.

3. The Court protests can’t take advantage of the space. The Supreme Court plaza is really one of the great physical structures for holding a protest. Just a massive flat area at the base of the steps to the Court, all raised up about 10 steps from the street. It’s almost as if they built it with protests in mind. Of course, you can’t really hold your protests on the plaza, because 40 U.S.C. 6135 allows the Court police to keep people off of the plaza. Consequently, all of the protest really takes place on the sidewalk in front of the plaza on 1st Street NE, and the no-man’s land between the 1st street sidewalk and the steps up to the plaza.   Functionally, this is understandable. But it really takes what could be an awesome venue and reduces it to squarely mediocre.

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Closing Time

March 21, 2012

We’re closing on our new house tomorrow and then moving in on Friday. So blogging for the rest of the week may be lighter. Or heavier. We’ll see.

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Book Recommendation: Every Twelve Seconds

March 21, 2012

Every Twelve Seconds.

That’s the title of the horrifying — but also absolutely wonderful — new political science book by Tim Pachirat.

I went to graduate school with Tim, and I can vividly remember the first time he told me about his dissertation plans.  We were standing on Prospect St. in New Haven, next to the bike rack outside of Brewster Hall, killing time in the way that graduate students are so good at on sunny days. I was babbling on about an idea I had to write some ridiculous thesis about anti-party thought in 19th century America. When I finally came up for air, I turned the question to Tim. What grand plans did he have in mind? I will never forget his response:

“I’m going to go work in a slaughterhouse in Nebraska.”

I didn’t even know how to respond. This was a crazy idea. Double crazy for someone allegedly interested in political theory. Triple crazy for a vegetarian allegedly interested in political theory. And quadruple crazy for a vegetarian allegedly interested in political theory who was living in the married student housing ghetto at Yale with a wife and young children.

But sane enough to eventually become one of the best books I’ve read in years. Not best dissertations. Not best academic books. Just best books. Period.

Every Twelve Seconds is about industrial slaughterhouses and what Tim calls the “politics of sight.” The title refers to how often a cow is slaughtered in the factory Tim worked, about 2500 over the course of a day. As he reminds us in the introduction, however, it is not a book about animal rights. It is about violence and society. In Tim’s words, it provides “a firsthand, contemporary account of industrialized slaughter, and does so to provoke reflection on how distance and concealment operate as mechanisms of power in modern society.” But I think that sells the book short. It’s part The Jungle. It’s part Fast Food Nation. It’s part Dominion. It’s part a how-to guide for ethnographic research. And it’s part a golden roadmap for how to write relevant and engaging contemporary political theory.

But mostly, it’s a brilliant narrative that recounts not only the industrial process of turning cattle into packaged meat and the political and social structures of the world in which that occurs, but also what it feels like to be a human cog within that world. A world where men must necessarily come face-to-face with endless violence, at all times. And how, in response, that world must be designed. And so while the language of the slaughterhouse requires the cattle to be only known as “beef” during the endless march up the chute to the knocking gun and the killing floor, the men who perform these tasks — mostly poor, most unskilled, mostly immigrants, all working at-will for meager wages and in constant fear of being fired — must also come to be seen as just raw materials by their supervisors, with job titles like Tongue Trimmer or Tail Harvester or Spinal Cord Remover.

The narrative leaves nothing to the imagination, either technical or emotional. From the 19th-century-like imagery of standing around the factory gates in hopes of being selected for a job to the visceral experience of spending a 10-hour day doing nothing but ripping still-warm cow livers off of conveyor-belted hooks to the numbing bureaucratic cops-and-robbers game that the quality-control team plays against the USDA-inspectors on a minute-by-minute basis over clean knives and hand-washing and the trimming of feces off meat in the cooler, you don’t just read about the world of slaughter, but you actually experience it. And that includes the evolution of your own thought: as with the author, you are initially horrified by the sights, sounds, and smells of the slaughterhouse when confronted with the reality that is hidden in plain sight at the grocery store. This is where our steaks come from? But through the course of the book, the reader develops much of the desensitization that the slaughterhouse worker uses as a coping mechanism. Your revulsion toward the killing floor eerily dissipates as you move through the book.

Outside of the narrative, two analytical highlights of the book stand out. The first is the maps of the slaughterhouse, and the woven-in micro-description of the geographic slaughter process. So well protected are slaughterhouses by walls and state regulations, that it is difficult to get good information on even how they are actually organized. Tim recreates visual floorplans of the entire factory, with detailed information on where each worker stands, every USDA inspector patrols, and the jobs that occur second-by-second as the beef moves through the slaughterhouse. This brings to life various aspects of the narrative: for instance, the sheer duality of the operation, which is simultaneously a well-thought out and masterfully-executed engineering marvel of  assembly-line efficiency, while also a disgustingly and surprisingly medieval operation: there is blood everywhere, the temperature is absurdly hot on the kill side and absurdly cold on in the cooler, the weapon of choice is the knife, and workers joke around by throwing animal fat at each other.

The second highlight of the book is the chapter on the bureaucratic oversight of the USDA. Much to my surprise, it turns out that a slaughterhouse has numerous USDA officials working full-time to monitor the production. One might think that this results in a high quality of meat (which it undoubtedly does relative to, say, 19th century industrialized slaughter), but the implication of Tim’s experience is that regulatory structure has become so routinized as to cease to be external to the process; instead, the regulations — or, more precisely, the skirting of the regulations — are the process. And so a cat-and-mouse game ensues between the quality control team of the factory and the full-time USDA inspectors, with the incentives offered to each of them veering so far from their underlying goals (profit and safe meat, respectively) that they appear to exist in an alternative world, where their jobs cease to reflect food production but strangely appear to symbiotically rely on each other’s existence. Not exactly a sideshow to the operation, but not not a sideshow, either.

There are those who may shy away from this book because it engages political theory. That would be a mistake. I hate contemporary political theory. I could no more finish a book by Foucault than I could write one. But this book neither drifts into that world nor relies on it, and the occasional forays that direction are not only tolerable but (surprisingly) very enjoyable. It all comes back to the human narrative, and the meticulous technical and emotional detail brought to it. You will never read a political science dissertation quite like this, because I don’t think one has ever been written. As Tim writes in his introduction, “the detailed accounts that follow are not merely incidental to or illustrative of a more theoretical argument about how distance and concealment operate as mechanisms of power in contemporary society. They are the argument.”

And a masterful argument at that. You will probably attempt to blind yourself to this book. It is much easier not to read it. But that, in itself, is kind of the point. As a meat consumer, it is debatable as to whether you are responsible for what goes on in the slaughterhouse, in reference to the animals or to the humans. And it is also debatable whether or not what goes on there is morally sound in a civilized liberal democracy. But anytime you seek to shield yourself from information because the very knowing of the facts might make you uncomfortable, well, that’s a strong sign that you are afraid of what your moral sense might find.


Common sense

March 20, 2012

I’m somewhat hesitant to write about the ACA (aka: the health care law, Obamacare, etc.), because: (1) it’s not something I know a whole lot about at the political level; (2) it’s something I know absolutely nothing about at the policy-details level; (3) it’s not a policy I feel very strongly about one way or another; (4) discussions of it very quickly drift into partisan and ideological fights; and (5) there’s a serious possibility of not saying anything new and/or interesting. So not an exacta, not a trifecta, not even a superfecta, but the rare quint-fecta of dangerous commentary waters!

This could get ugly. But let’s get it on.

I’m much more interested in the constitutionality of the ACA than I am in the actual policy. And not because I care all that much about the constitutionality of the ACA per se;  what I’m interested in is the effect that it will have on the future of congressional/federal power, as well as how it will fit into our understanding of the post-Lopez walkback from the psuedo-plenary commerce clause power of Congress that was more or less presumed at a practical level by the late 20th century.

Via a post by Jonathan Cohn this morning, comes Richard Primus’s theory that the Lopez decision will give the Supreme Court the room to declare the individual mandate constitutional:

As part of their socialization into the world of American constitutional law, lawyers learn the maxim that the federal government is one of limited and enumerated powers … [c]onstitutional law has tolerated tremendous expansions of federal power in practice, as the logic of modern life has directed. But it has proved easier to tolerate those expansions while continuing to pay homage to the maxim than to repudiate the maxim openly. A piece of our identity is invested in the maxim: articulating it reminds us of a part of who we are, or of a story in which we locate ourselves … Lopez was decided as it was partly because a majority of the Court felt that it could not uphold the Gun-Free School Zones Act and still utter the maxim. At oral argument in the case, the Solicitor General of the United States was asked to identify a law that the federal government could not make if the statute at issue were upheld. He could not provide an example.

That said, the maxim does not demand that the Supreme Court constantly strike down federal laws. It demands only evidence that it is taken seriously. Lopez and Morrison insulate the Court against charges of heresy on the point-not perfectly, but considerably more than would be the case had those decisions not been rendered. In later cases, the Court can uphold far-reaching exercises of the commerce power without laying itself as open to the claim that it has let the maxim come to nothing. When it upholds other federal statutes, the Court can identify concrete examples of laws that are beyond the commerce power, laws with respect to which it has exercised its solemn duty to police the boundaries of federal legislative power.So when it upholds other laws as within the commerce power, it can adduce evidence that it has not left the maxim empty.

This, to me, is a very-well stated description of what is actually on trial next week, and I think it is the crux of the issue with the ACA. It is fundamentally not a question of whether the individual mandate itself can be defended as Constitutional. Oh, there’s lots of debate on that, for sure. But the real issue has always been the one raised by Primus: if the commerce clause allows Congress to legislative the individual mandate, is there a hypothetical congressional Act that we can imagine that would not be constitutional? If there is not such a hypothetical law, must we then either accept that Congress does indeed possess plenary power and that the widely-held maxim of limited and enumerated powers is indeed dead and gone, or, if do not, then must we unwind the logic and accept that the individual mandate is not constitutional.

This is worth pondering, because from my point of view, at the heart of the debate over the individual mandate are two competing views of the Constitution, both of which can plausibly claim the mantle of “common sense.” The first point of view is the historical one: the text of the Constitution plainly limits the power of the federal government, and to read the document and decide otherwise is more or less absurd. To reject this premise out of hand is to willfully blind one’s self to even the most cursory analysis of the document. The competing point of view, of course, is the developmental one: over the course of 200+ years, the give and take of politics and court jurisprudence has unintentionally handed us what is more or less a common-law Constitution under which it is plainly recognized that the federal legislature is restrained only by specific textually prohibitions, and the will of the voters. Any other reading is absurd.

Now, the crazy part is not that these two competing views exist; the crazy part is that many people — including me — are instinctively drawn to both of them. This comes back to the common sense test. I’m not a huge fan of the ACA (based on what I know of it, which, again, is pretty chattering-class pedestrian), but I don’t find it the least bit unreasonable that the federal government would be allowed to regulate it. On the other hand, I don’t think the “broccoli test” — lampooned by many liberals as an absurd hypothetical — can be dismissed in one short stroke; I do not believe in a national legislature that has the ability to regulate all aspects of my private life down to what cereal I eat, held in check only by the will of the transient (super)majority. And I think that’s common sense, too.

And look, I’m not saying common sense is everything when it comes to SCOTUS decisions. But I think it matters. It matters to the justices — as the famous question asked of the government in Lopez indicates — and more importantly, I think it matters to the popular legitimacy of an upheld law. While the Court has never shied away from a decision simply because they went against common sense, many of the most popularly-detested decisions were hated precisely because they went against common sense. Dred being at the top of the list; it was just not a plausible understanding of America to implicitly or explicitly assert that the natural condition of all the territory in the United States was slavery, up until a state specifically prohibited it. Seventy years of common sense has said the opposite was true.

And so, to me, the chief job of the government next week at oral argument is going to be to find a way to square these two realms of common sense, that Congress can impose and enforce individual mandates on citizens to participate in private economic activity, but that there still exists a limitation on congressional power such that laws may be articulated that Congress cannot legally enact. To say that Congress never would enact such laws is not good enough. As with Lopez, I think the Court will not look fondly upon a government that meekly concedes no limitation on Congress. The alternative option, of course, is to proudly defend the plenary power of the national legislature under the commerce caluse. High risk, and incredibly unlikely. For no matter how much that has become the normative view of mainstream progressive thought, it woefully ignores the positive implications for the current Court.

Now, Primus and Cohn present a clever idea that threads the needle here and satisfies the common sense concerns. When Justice Scalia asks the government to identify a law that the federal government could not make if the individual mandate were upheld, the government will simply respond, “Lopez.” That is, even under the theory that the individual mandate is constitutional, the original 1990 Gun Free School Act would still be unconstitutional. And voila!, problem solved: we can uphold the individual mandate and continue to live in a world where the powers are Congress are, at some level, still not plenary. Not only will this be true at a factual level — Lopez, and the congressional limtis therein, will still be the law of the land — but more importantly, at a cognitive level. So long as the solicitor general can easily point out, and the Justices and the chattering class can easily take in, that there are still places Congress cannot go, we can all continue to sleep on the idea of an enumerated, limited federal government.

This is an interesting and important argument. But I’m not sure that it holds. It rests on the assumption that the Lopez decision will not be implicitly overruled by an upholding of the individual mandate. That’s certainly possible: the distinction at hand — and that was further articulated in Raich v. Gonzalez  — is that the Gun Free Schools Act simply had no connection to interstate commerce. Trying to link gun possession at schools to hypothetical increases in violence and then to hypothetical increases in insurance rates and thus the economy — as was one of the government’s principle arguments — was just a bridge too far. Fair enough. But read that last sentence again: in Lopez, the government specifically linked  gun possession to insurance costs. I don’t know if that sends chills down your spine, but it sure as hell should get you sitting up in your seat.

Because the very argument made in favor of the mandate now is that Congress has the power to regulate the health insurance market, and the individual mandate is legitimate simply as a  “necessary and proper” non-commerce means to an end that can plainly be regulated under the commerce clause. It’s a clean, straightforward argument. It’s the one Primus makes, and I think it’s the winning argument for the first half of the challenge facing the government. But it’s also potentially the fatal flaw in regard to the common sense problem. To wit: if the individual mandate is necessary and proper to the regulation of the health insurance market, what then stands in they way of the government barring possession of guns at schools as a means to regulate that same insurance market? Because while the Gun Free Schools Act didn’t pass the commerce clause test on its own, as a non-commerical component of a broad scheme regulating health insurance, it seems to fall directly into a Raich-esque sphere of legitimacy. At least plausibly.

In effect, it does not strike me as at all unrealistic to think that the upholding of the individual mandate is logically the death knell of Lopez. That is, if we are to accept the individual mandate, we are probably going to have to accept the dissenting view in Lopez, or something quite similar to it.  And if Lopez comes crumbling down, all of a sudden the solicitor general may once again be standing in front of the Court, trying but failing to articulate a limit on congressional power. Of course, I’m no lawyer, much less any sort of commerce clause legal expert. And sure, it’s a bit gimmicky to note that the government’s defense in Lopez articulated an insurance theory as the connection between gun possession and the economy. But that doesn’t make it any less real.

There are excellent policy arguments in favor of Congress regulating and providing for health insurance. And, as I have stated, it’s almost common sense that Congress should have the power to regulate and provide for health insurance more or less as they see fit. But as of yet, I have not seen an answer to the key meta-question at hand, which is “If we uphold this statute, what can Congress not do?” My guess is that a convincing response will be forthcoming if the law is upheld, since I can only assume that the Justices will not be able to uphold the law without articulating one. But I have not heard it  yet. And I do not think that Lopez gets you there.


Wonk n’ roll: committee funding in the House

March 19, 2012

Last week, in response to Pascal-Emmanuel Gobry’s suggestion that we increase Members’ staff and office budgets, I wrote a primer on how the Member’s Representational Allowance works in the House. Today, my goal is to offer the companion primer, on how committee funding works in the House. I’ll do it Q&A style, since it’s a bit complicated. (As with the MRA, I will focus on the House; the Senate process is slightly different, but operates on the same principles.) For background, you might want to start with my  post on the basic staffing structure in the legislative branch if you are totally unfamiliar with the terrain.

Q. How do House committees get money to pay for staff?

A. More or less the same way as Members do in their personal office: appropriations made under law in the Legislative Branch Appropriations, paired with authorizations that provide spending limits.

Q. So the Committee on House Administration Committee sets the spending limits?

A. Not exactly. They have jurisdiction over the policy area, but under Rule X, clause 6 of the Rules of the House of Representatives, the House Administration Committee reports a “primary expense resolution” to the floor that authorizes the expenses for each standing and select committee in the House (except for Appropriations). The resolution is then passed (or not) by the chamber on the floor. For instance, in the 112th Congress, the House Administration Committee report H.Res.147 to the floor, which was agreed to on March 17, 2011. Under Rule X, they are also required to submit a committee report (in this case, H.Rpt. 112-130) detailing the total funding and other information.

Q. Why doesn’t the Appropriations Committee get an authorization?

A. Under the 1946 Legislative Reorganization Act, the House Appropriations Committee is authorized to appropriate its own funds, separate from the funds for the other standing committees. So while the rest of the standing committees draw their funding from a single Treasury account (and therefore need individual limits on how much they can draw), the appropriations committee has its own Treasury account. From a practical politics point of view, it’s a reminder of the power of the Appropriations Committee; they need not submit to a funding process that puts their own funding in someone else’s control.

Q. Wait, the individual committees don’t have their own Treasury accounts?

A. Nope. And this is one of the most common misconceptions about how funding works in the Legislative Branch. Just as individual Members do not have separate Treasury account for their MRAs, neither do the standings committees. Instead, the appropriation for House committees is in two pieces in the Legislative Branch Act — one lump of money for all the committees except Appropriations, and a separate account for Appropriations. This is part of the reason that the House Administration Committee needs to report, and the House needs to agree to, authorized limits each committee; everyone is pulling their money out of the same general account.

Q. How much is appropriated?

A. In FY2012, just under $126 million for all the committees except for Appropriations, and $26.6 million for the Appropriations Committee.

Q. Wait, the appropriation is for a fiscal year? I thought you said the authorization was agreed to in March?

A. It was. There are two totally different timelines here. The funding for  the committees is appropriated — as like most federal appropriations — annually on the October 1 – September 30 calendar. The authorizations, however, are for calendar years (actually session-years, January 3 to January 2).

Q. I don’t get it?

A. Don’t worry, it’s confusing. Think of it this way: there’s a big garbage full of money. Every year we have to refill it with more money, because on October 1st, we can no longer use the money that’s in there. So we agree on how much to refill it with on October 1. Meanwhile, we want to let 20 different people take money out of the bag when they need it. So we set a limit for how much each of them can take out in any given year. That the limit we put on them runs on a different calendar than the the scheduled refilling of the bag doesn’t actually matter, so long as we keep refilling the bag and makes sure the limits we set for the 20 people don’t exceed the amount in the bag. That those people end up taking out money from two different fiscal years on one limit doesn’t make a difference. It’s the same bag.

Q. Why don’t we just authorize limits for fiscal years?

A. Because then the 2nd year’s authorizations in any Congress would run through the following Congress’s first session. And that’s not efficient because if there’s a change in power, there might be a desire for a substantial change in the allocation of funding across committees. It makes the most sense to authorize committee funds for each session, because that way, you know the priorities of the majority and they are (relatively) stable.

Q. But you said they do this in March?

A. Yup. The trade-off for having the authorizations not run across two different Congresses is that you can’t get the authorizations done for the first session prior to that session getting underway. It takes some time for the committees to develop their budgets, for the House Administration Committee to sort out how much money it has and where it should go, and for the primary expense resolution to be agreed to on the House floor.

Q. So how do committees pay for anything between January 3 and March?

A.Remember, it’s not an issue of the money not being appropriated. That runs on a fiscal year basis, so the bag is full of useable funds. The issue is that there’s no authorization at the outset of a Congress. So House Rules X, clause 7 provides for interim funding authorizations: the committees can spend up to 9 percent of their total 2-year authorization from the previous Congress. Any spending is then charged against their eventual 1st session authorization after the primary expense resolution is agreed to.

Q. Today is March 19. I follow congressional news. Why am I not hearing about this right now?

A. Because the contemporary process is for the primary expense resolution to be biennial, meaning that in March of the 1st session of a Congress, committee funding authorizations are provided for both the 1st and 2nd session of the Congress. Each committee is given a total authorization, as well as sub-authorizations for each session.

Q. Do they ever adjust the numbers later on within a Congress?

A. Sure. They did this year. H.Res. 496 reduced 2nd session funding for all standing committees (aside from House Appropriations).

Q. What’s the formula for determining how much each committee gets?

A. Unlike the MRA, there’s no neutral formula for determining committee funding. Instead, each committee develops its own budget request, which it submits to House Administration. Often, these requests are formalized into legislative resolution that are introduced in the House (see, for example, H.Res.107, which is the funding request for the Education Committee in the 112th Congress). House Administration then holds hearings prior to developing the primary expense resolution. Typically at these hearing, the chair and ranking member of each committee testify as to their budget request.

Q. Wait, Members of Congress testify at the hearing of another committee?

A. Yup. It’s one of the few places where that happens routinely (the other is, of course, at the Rules Committee when Members must testify on behalf of amendments they would like included in a special rule).

Q. What determines how much each committee gets?

A. At one level, it’s just politics. There’s a certain amount of money, each committee tries to justify how much they need within the context of how much is available via the appropriation. Lots of things come into play: the priorities of the House Administration Committee, the priorities of the majority leadership, the priorities of the majority caucus, the priorities of the chamber, the input of the appropriators, and so forth. There’s a certain level of professionalization to it as well — it would be very unusual to see, say, half the committees get a 20% increase over last year and half of them get a 20% decrease. The point being that’s there’s a certain amount of distributional comity. Nevertheless, the priorities of the majority party certainly matter. If some committees are clearly going to be busy, they will usually see more funding.

Q. What do committees spend the money on?

A. Mostly staff. As with the MRA, the funding for committees pays for more or less all expenses: staff, consulting services, office expenses, and travel. Unlike Members, or course, the committees do not have district offices and typically do not send very much franked mail.

Q. Who decides on how to spend committee funds?

A. Technically, the chairman has total control over the budget. Under the House Rules, committee funds are spent on vouchers signed by the chairman.

Q. Does the minority get any funds?

A. Yes. Well, sort of. There is a long-standing debate in the House over how the staff and resource funding should be divided for the committees. Currently, the Committee on House Administration promotes the idea that the minority should get 1/3 of the funding, and they look fondly upon committees that present that as their arrangement in the funding hearings. There is relatively widespread consensus that this should be the policy for staff funding, and it is something of a weak norm. (It should be noted, however, that the Chairmen still control and are still responsible for the entire budget). So most committees follow that norm. There are, however, occasional squabbles over whether non-staff resources should also be divided 2/3 and 1/3. Many, if not most, committees now follow the 2/3 and 1/3 distribution for all committee funds.

Q. So how many staffers work for the committees?

A. About 1500 right now. That’s down from from a high of about 2200 in the early 90’s. Below is a chart of House leadership and House Committee staffing levels, from 1982 to 2010, scaled on separate axes. The dotted line is committee staff. Note the large drop in 1995, when committee staff was cut across the board by 1/3. During this time period, committee staff decreased roughly 18%. Over the same period, Member personal staff increased by 6%, and core leadership staff increased by 233%.

Q. What do the staffers do?

A. Well, whatever the committee wants them to do. Mostly that falls into the nebulous world of policy analysis, policy creation, and policy oversight: evaluating existing laws and bills to change them, developing original legislation to change law, and conducting oversight of existing policy, usually in response to the priorities of the full committee and sub-committee chairmen.

Q. Yeah, but what do the staffers actually do?

A. Mostly four things. First, listening and negotiating with the stakeholders and policymakers who are seeking to alter current law. This can be everything from the chairman (often) to other Members (both on the committee and off), to stakeholders both inside and outside the government, public and private. Second, preparing legislative proposals in response to the concerns of these stakeholders, by actually drafting potential language. Third, preparing hearings and committee markups on the legislation, which runs the complete range from choosing witnesses and preparing questions, all the way down to physically assembling briefing books for the Members. Fourth, conducting oversight of existing policy, which can range from phone calls to stakeholders to oversight hearings of executive branch officials.

Q. Are committee staff paid similarly to Member offices staff?

A. Broadly speaking, yes. Committees have staff assistants who make very little money and they have senior professional staffers who often make the maximum committee staff salary under the Speaker’s Pay Order, which outlines several tiers of maximum pay for various number of individuals, all tiers being in the $160-170k range. It’s hard to generalize, but the committee system tends to have, on average, better paid staff, typically because they come to the job with more experience or education, and tend to stay in the job longer, in comparison to Member office staff.

Q. Do we need more committee staffers?

A. Completely depends on who you ask. And ultimately, like the MRA, it depends on your axiomatic values. There are really three concerns. First, are more or less committee staffers optimal on an absolute level? That is, would a different number of committee staff help offset the reliance of Members on information sources like lobbyists. Second, are more or less committee staffers optimal on a relative level, either in reference to the executive branch or in reference to other legislative branch entities, such as the leadership or the Member personal offices. Like lobbyists, both the President and the leadership can use their vast resources to produce and disseminate information as a political weapon. Whether you believe a better balance needs to exist will largely inform your opinion about committee staffing.

Of course, staffing also needs to be properly matched to authority. If you don’t believe in a strong committee system — that is, if you would prefer a greater centralization of policy-making power in the House — then it hardly would make sense to want to increase committee staff. And vice-versa. There’s some evidence that the committee system simply isn’t being used for the same purposes as it was a generation ago; the overall number of hearings and markups is down, and a higher percentage of major policy seems to be coming directly from the leaderhsip. That’s neither inherently good or bad, but it does, again, inform the question of committee staff. There’s not a lot of reason to beef up a congressional sub-institution with resources, if it’s formal and informal authority is purposefully being waned.\

Q. Aside from the separate funding stream, is the Appropriations Committee different?

A. Very much so. One really important difference is that there’s no flurry of bills coming at the Appropriations Committee, and very few surprises in their agenda. On a typical committee, you never really know what is coming next; not only do current events play a role in the agenda, but the legislative priorities of various Members and the leadership also dictate things. On Appropriations, each subcommittee more or less has one bill that they deal with every year, and they more or less know what is in it and what the calendar looks like for consideration of it. Yes, there are supplementals and other non-routine items, but the basic budget calendar (budget justification hearings starting in late winter; bill and report production in the Spring; markup in the late Spring; floor consideration in the summer; and oversight year-round) makes for a rhythm that is more regular than other committees.

Previous “Q&A” style posts

March 16, 2012 — Increase the MRA in the House?

March 5, 2012 — Democratic Appropriations Subcommittee Assignment in the House.

March 2, 2012 — Filling the tree in the Senate.

December 15, 2011 — Rule Layover Waivers in the House.

December 5, 2011 — How a bill becomes a law. Literally.

November 29, 2011 — The other caucuses. The ones in Congress.


This is a binding decision, until it isn’t

March 16, 2012

Under many plausible scenarios for American politics circa 2013, the sequestration provided for in the Budget Control Act will not come to pass, nor will the required cuts. That’s just sort of how things work, and you can kinda see it coming  in the way people are talking. For example, this.

BREAKING: It’s really hard to pass and  implement policies with long-term benefits but short-term costs.

I’m not a fan of people who talk about how America’s fiscal problems are a “failure of the political class.”  You hear this all the time among the pundit class, David Brooks writes some variation of it every other week in the back of the New York Times, and half of the Washington journalistic corp not only buys into the idea, but all of them seem to think they invented the concept because they were the last ones to write about it. It’s complete nonsense. Whatever shortcomings you might ascribe to American democracy, that the Members of Congress are ignoring a massive pubic outcry is not one of them. As if somehow the problem is that all the people want nice balanced budgets and a reduced public debt, it’s just that the politicians won’t deliver it to them. Please.

The real problem is that fiscal policy in an indebted democracy resides on a J-Cuvre. Which is nothing more than to say that the only way to achieve long-term positive results is to incur short-term negative pain. Thus the “J” in the curve. It’s just another way of explaining one of the fundamental problems democratic systems face: they are not good at long-term planning. But it’s particularly problematic when the long-term planning requires short-term pain. In many ways, the J-Cuvre is just a longitudinal collective action problem (long-term good vs. short-term good), as opposed to the cross-sectional version (common good vs. individual good)  that one might be more familiar with. It’s not crazy to say that these two problems are the heart of the institutional dilemma for any democracy.

The classic example is moving the former Soviet bloc economies in eastern Europe to capitalism. There was no doubt that capitalistic economics would produce much better long-term growth, but the only way to get there was to set the markets free, which caused all shorts of short-term pain at the bottom of the curve. Which led many voters to reject the ruling parties and reverse the liberalization. That’s a problem. In Washington (and other stable democracies) it translates to the classic political axiom: don’t produce policies that have short-term costs and long-term benefits. In fact, tend to do the opposite. So there you go.

But back to America’s political class. You constantly hear people bemoan the state of affairs that “no one in Washington will talk about raising taxes” or “no one in Washington will talk about cutting entitlements.” This is partly true, but it’s not for the reason people think, some “failure” of the political class. It is because to talk about those things, in many cases, is to not find yourself in Washington the following Congress. It’s basic natural selection. And it’s roots are with the voters, not the politicians. No one calls tax cuts without spending cuts a “failure of the political class,” and no one calls new unfunded entitlements a “failure of the political class.” More often we celebrate those things. But somehow their sum becomes a failure of the political class. In reality,  it’s all just the political class reflecting the (short-term) interests of their constituencies.

The trick, of course, in any J-curve situation is to find a way to get past the bottom of the curve without the democratic electorate either (a) punishing the long-term looking politicians and/or (b) electing new politicians to reverse the policies and/or (c) both. You need to both convince the existing political class that they will not be punished, and then have it actually turn out that they are not punished.  This, as you might surmise, is why autocratic states do not face significant J-curve problems the way democracies do; when there is no mechanism for reversing short-term public pain, it’s quite simple to ride out the curve until you get to the high side. You just do it.

In democracies, its’s a lot trickier. Some clever mechanism have been produced in the past: establishment of things like the federal reserve to set interest rates in an environment insulated from popular election and public sentiment; placing implementation of decisions in the hands of elected officials with longer time-horizions (like the President) or no time horizon (think Supreme Court settlement of the territorial question in the 1850′s or the segregation question in the 1950′s). But for most economic issues, Congress just has to deal with it. And it’s very, very hard to deal with an economic J-Curve when you have a 2-year term.

And this often leads to attempts by Congress to bind itself to a long-term policy, or more precisely, to bind a future Congress to a current policy. Everyone knows that’s really tough, and we all have a basic answer for why: a future Congress will just undo it. But that answer sort of begs the question. Why is it tough? And that’s  what really interests me: the micro-level reasons that this is so difficult for a legislature. I see five dimensions to this:

1. Legislatures can only make one type of law. This consistently bedevils legislators and staffers who would like to constrain future statutory action via … statute! But it simply can’t be done; any law that attempt to constrain what a future law can do is immediately rendered moot by any future law. You can constrain a lot of governmental actions with federal law, just not future federal laws. A classic example of this is the Commemorative Works Act, which requires that memorials in certain parts of DC be authorized by law (fine; that prevents non-statutes from authorizing the memorials), but then goes on to circumscribe what Congress can or cannot authorize in those laws. Useless!

For example, the law says, “A commemorative work solely commemorating a limited military engagement or a unit of an armed force may not be authorized.” But Congress can, and does, simply bypass such requirements by authorizing whatever the heck they want when they decide to authorize a new memorial. And lest you think this is only a problem for trivial issues, remember that it caught the Founders flat-footed; after they left the Northwest Ordinance out of the Constitution, they were forced to pass it as federal law in the first Congress. Subsequently, Congress routinely ignored it when organizing, dividing, and admitting new territories as states in the union. There are no “super-laws.” Next time you find yourself suggesting one — this will happen to you sooner than you think — remember that they are worthless. Period.

2. If statutory binds don’t work, you have resort to either macro or micro restraints. Given that you can’t use federal law to structure constraints on future federal laws, what can you do? Well, there are basically two options: bind from the top or bind from the bottom. Either constitutional amendment or procedural barricade in the chambers, particularly the Senate. Both of these solutions are plausibly great. A constitutional amendment adjusting the powers of Congress as a legislature will certainly accomplish your goal. And a procedural blockade in the House or Senate that prevents certain types of federal laws from getting out of the chamber is theoretically equally effective. Unfortunately, both strategies have drawbacks.

3. The macro-restraint of a Constitutional amendment just isn’t practical. It’s not for lack of trying that the Constitutional amendment route doesn’t work. Despite being the most popular proposed constitutional amendment of the last few decades, the Balanced Budget Amendment stills seems to be on the express train to nowhere-ville. Even if you set aside the many substantive concerns people have about the BBA, the process itself of producing a BBA is just a nightmare. Congress can’t do it on its own. The portion Congress can do takes a massive supermajority. And it just takes a long time even when you are successful. The latter issue is a massive problem for the BBA: supports grows for it periodically when there is a recession or an explosion of spending, but that immediate cause ceases to be a factor long before the BBA can get off the ground. And then interest has been lost. And the BBA just doesn’t seem like the type of amendment that could be passed in 100 days, 26th-amendment style.

4. And the micro restraints of procedural hurdles are often too far in the weeds. In theory, procedural restrains on the production of laws is a great solution. In the Senate, it’s (relatively) easy. You amend the rules (either the traditional way or via statutory rulemaking) creating a point of order on the floor against any legislation that you want to proscribe. Then individual Senators can block potential laws even if they have supermajority popular support in the chamber. This is more or less how non-statutory PAYGO is enforced in the Senate. In the House it’s a bit tougher, because the majority can write special rules that circumvent your point of order, but in theory you could at least make it a procedural pain in the ass to get around such a point of order (by specifying that the Rules Committee doesn’t have the power to introduce a privileged resolution that kills the point of order, the same way that the motion to recommit is protected), and it could be held together by a norm.

The problem with all of these types of procedural blockades is twofold: first, they are low on the public visibility/understanding scale. If future Members of Congress seek to reverse them, it’s so far in the weeds that it may not raise the public ire enough to dissuade such reversals. But more importantly, procedural points of order are passive restraints on congressional action; they only are enforced if someone demands they be enforced. So just as a quorum is assumed to be in the chamber unless someone suggests it is not, regardless of whether there are only a handful of Members present, so too with points of order. And that has a huge consequences: Members can bypass the points of order without a trace of evidence. There’s no record of something not being enforced on the House or Senate floor; you are looking for an absence of evidence. So not only is it not public that the point of order has been effectively rendered moot, but no individual Member is on the hook for not enforcing it.

5. Consequently, the “best” solution requires reducing legislative power. And so the most common way to bind legislative action is to remove the power altogether, and hand it to the executive branch. This is easy: write a positive law authorizing someone else to take control of a policy, preferably someone more insulated from democratic electoral politics, like the President, or an agency head, or the federal reserve. But this strategy comes with two problems. First, Members don’t love giving up power to the executive branch. And, more importantly, when Members do give up power to the executive branch, that’s an inherent loss of power for the legislature. But you already know how  I feel about that.


Wonk Time: Increase the MRA in the House?

March 15, 2012

Pivoting off Ezra Klein’s review of two new books about lobbying and Congress, Pascal-Emmanuel Gobry suggests that the way to combat the legislature subsidy of lobbying is to pay congressional staff higher salaries:

What if every member of Congress had a, say, $20 million staff-and-research budget? What if a congressional chief of staff made $1 million per year, and what if each congressman had an army of staffers to research policy and draft bills, as opposed to a skeleton staff? The legislative subsidy would just become irrelevant. Or at least, congresspeople would be on equal footing vis-à-vis well-funded lobbyists. And the cost would be a drop in the bucket compared to the federal budget — and even less compared to the social and economic cost of carveouts and tax breaks.

This raises two immediate questions:

  • What is the current staff-and-research budget of each Member of Congress? Is it anywhere near $20 million per Member? How is it determined?
  • Why doesn’t Congress simply implement Gobry’s solution? It’s not like anti-lobbyist legislation is unpopular. So what’s holding this sort of reform back?

I’ve written a bit before about the basic staffing structure in the legislative branch, so check that out if you need the lay of the land. Here I’m going to answer the two questions above. I’ll do it Q&A style, since it’s a bit complicated. I will focus on the House; the Senate is slightly different, but operates on the same principles.

Q. How do Representatives get the money to pay for staff?

A. Under law, the Member’s Representational Allowance (MRA) — a lump-sum of money that Members can spend as they see fit — is authorized and regulated by the House Committee on House Administration, as well as by law and chamber rules.

Q. How much money is in each Member’s MRA?

A. It varies. The formula for calculating an individual Member’s MRA is a lump-sum that everyone gets, plus a variable amount based on three variables: how far the Member’s district is from Washington (to scale travel costs), the cost of living in the Member’s district (to scale district-office rental costs), and the number of non-business postal addresses in the Member’s district (to scale constituent mail costs). If you would like to see the actual formula, you can find it on page 2371 of the current Statement of Disbursements of the House. That document also provides the total amount given to each Member, as well as the itemized breakdown of all expenditures by each Member in the previous quarter.

Q. So…how much money does each Member get?

A. For calendar year 2010 (technically session-year, which runs from January 3 to January 2), the median amount was about $1.5 million. At the start of the 112th Congress, H.Res.22 reduced the authorized amount by 5% for 2011 and 2012 as part of a general reduction in expense funding for House leadership, committees, and Members. So while I haven’t run the numbers for this year, it’s about in the $1.4 million range.

Q. What can the MRA be spent on?

A. In general, four categories of expenses: staff, travel, office expenses, and mail. The general guidelines is that the MRA can only be spent on official representational business. If you want the full details, check out the Members’ handbook issued by the Committee on House Administration.

Q. What proportion do Members typically spend in each category?

A. Mostly staff. Typically, you’ll see about 65-70% of the MRA spent on Washington and district staff. (Representatives are limited to 18 full-time and 4 part-time staff or interns). After that, it varies: some Members send a lot of mail to their constituents, others travel back to their district a lot.  A number of studies have examined the publicly-available data if you would like precise numbers. Here’s a recent one. And on average, about 10% of the MRA goes unspent.

Q. Unspent? I thought Representatives were underfunded and staff underpaid?

A. They may well be, but there are two issues. The first is basic accounting: Members can’t borrow money against the next session or the next Congress if they run out of their MRA, so they have to budget in a buffer. More importantly, however, there is a strong downward democratic pressure on Members to be thrifty. Constituents do not like seeing Members spend money unnecessarily, and one way to look penny-wise is to not use all the money given to you.

Q. How much do the staffers make?

A. Again, it varies. Entry level staff assistants may make less than $30k annually. The maximum staff salary in the House under the 2009 Speaker’s Pay Order is $168,411 annually. The 2010 House Compensation Study provides a good survey of different salaries for different positions in a Member’s office. For a primer on who’s who in the Member’s office, see my old post.

Q. Maximum salary? I thought Member’s could spend the MRA as they see fit?

A. Not exactly. In addition to the regulations issued by House Administration, there are other guidelines under statute and regulation. Most of them are common sense or common ethics rules: restrictions on hiring your relatives, requirements that people you pay actually do work commensurate with the pay, and so forth. Under law, the Speaker is also authorized to issue guidelines setting maximum salaries for various positions.

Q. But wait, how can all this money be spent without an appropriation? I thought the Constitution required that?

A. It does. And there is. The money authorized for the MRA by the Committee on House Administration is just that, an authorization. The actual funding is appropriated in the annual Legislative Branch Appropriations Act.

Q. How much is appropriated for the MRA?

A. In FY2012, it was $573.9 million, in P.L. 112-74, the FY12 Consolidated Appropriations Act.

Q. And that covers all staff and resource expenses?

A. For Representatives’ personal offices, yes (well, mostly; see below). But that figure doesn’t include committee funding, leadership funding, or funding for administrative support offices (such as the Clerk’s Office). Nor does it include any of the funding for the Senate staff (personal or otherwise), or any of the other offices of the legislative branch (such as CBO, the Library of Congress, CRS, Capitol Police, etc.). The entire Legislative Branch Appropriations Act is about $4.3 billion annually, which sounds like a lot, until you remember that total federal outlays are about 1000 times that.

Q. So the total cost of maintaining Representatives’ personal offices is about half a billion?

A. It’s a little more than that, actually. Because that total MRA appropriation doesn’t include the government’s portion of the contributions to employee pensions and benefits. Those are appropriated separately in the Legislative Branch bill. There are also other expenses — such as the maintenance and upkeep of the physical offices in Washington — that are picked up in appropriations to other Legislative branch entities, such as the Architect of the Capitol. And it also doesn’t include the salaries of the actual Members, which runs about $76 million total (441 Members and Delegates X $174,000 annual salary + a bit more for leaders), or the government side of their pension and benefit contributions.

Q. So are staff underpaid?

A. That’s an open question. Many staffers certainly think they are. And the House Appropriations Subcommittee on the Legislative Branch has regularly worried in committee reports accompanying the Legislative Branch Appropriations bill about losing staff to the private sector, and the need to pay staff more in order to remain competitive. Most Members certainly wish they had more staff, and more ability to pay their existing staff. On the other hand, there are plenty of people who think that congressional staff are overpaid or, in some cases, completely unnecessary. Governor Perry, for instance.

Q. So it looks like it would take about 10 or 15 times as much money to get to Gobry’s $20m/Member budget level. Thoughts?

A. First impression is that it’s political impossible. For the House alone — and again, we’re just talking about the personal office staff, not the committees or the leadership or anything else — you are talking about $8 billion. That’s almost double what we’re spending on the entire legislative branch right now.

Q. But like you said, it’s a drop in the bucket relative to total federal spending?

A. True. But it’s very, very hard to increase spending — even marginally — in the Legislative Branch.

Q. How come?

A. As noted above, constituents tend not to look kindly upon Members who vote to increase stuff that is perceived to be “for them.” This is most directly felt on Member pay. But it affects virtually all spending in the House and Senate. Members have a very difficult time casting votes to increase money that goes to themselves or their staff. Even the upkeep of the Capitol building and the surrounding complex can raise the political ire of some constituents.

Q. But the Legislative Branch bill gets passed each year, no?

A. Indeed, it does. But it also has historically come to the floor under a closed rule, in order to prevent amendments being offered that would slash things like staff pay. (In recent years, almost all appropriations bills have come to the floor under closed rules. That, however, is a new trend. Twenty years ago, typically on the Leg Branch bill would come to the floor closed). The basic rule of thumb is this: if a vote is going to be taken on the floor that seeks to cut Member pay, or Hill staff salaries, that vote is going to pass. Regardless of personal feelings, Members just feel that they cannot cast votes against those kinds of amendments. And there are always plenty of Members with strong incentives to propose such amendments. Thus, a closed rule is the only safe way to go.

Q. So how do they ever increase Member or staff pay?

A. Two ways, typically. One is the way mentioned above: keep increases in the overall spending and the staff spending in the Legislative Branch bill very modest — often lower than most or all other appropriations bills — and then bring it to the floor under a closed rule to prevent any amendments that seek to cut pay. The other way is the method used with Member pay: put in place a system of cost-of-living increases — increases that can never be higher than the increases for general federal workers — which automatically go into effect unless they are specifically denied. Then prevent denial votes or amendments from coming to the floor, except in cases when there is genuine consensus to deny.

Q. So what are the prospects for an increase in Member staff resources?

A. I don’t like to make strong predictions of this sort, but I’d say in the near term: zero.

Q. But is it a good idea in theory?

A. Well, again, that depends on your axiomatic values. Personally, I’d like to see legislative branch staffing beefed up a bit, but that’s mostly because I see it not only as a general good for a legislature, but also as a relative good for a legislature vis a vis the executive. As I’ve written before (here and here), information production and dissemination is a serious weapon the branches can use against each other in political battles, and in my view, the legislature could use a more even balance with the President right now.

Q. What other considerations are there?

A. One is how you feel about where to distribute resources in the House. Right now, Member offices spend a lot of their resources dealing with constituent casework. If resources for Member offices were expanded, Members could arguably assign more staff to policy work, which might be beneficial if you believe the Member offices should be carrying a larger load of the policy development. But institutionally, the rules of the House and the allocation of resources right now all point toward the committee system having the lion’s share of the load for policy development. So it might make more sense to strengthen the resources of the committees. In any case, from a political point of view, a move to double or ten-fold increase the resources of the Members’ offices would likely consider increasing the resources of the committees as well, I would think.

Another issue is the leadership. Unlike Member or committee resources, leadership resources have grown dramatically over the past 20 years, and have altered the balance of informational power between backbenchers and leaders. That’s one thing that isn’t raised by Ezra’s review of lobbying; the leadership has many of the same incentives for legislative subsidy that lobbyist do: they provide information to assist backbenchers, and backbenchers employ that information on issues that they can’t spend their valuable time or resources for independent research. So increasing the staff and research budgets of the Members’ offices theoretically weakens the leadership’s ability to dominate backbenchers via information control. Which obviously muddies the politics.

Q. You mentioned committee funds. How does that work?

A. Oh, geez. Maybe next week.

Previous “Q&A” style posts

March 5, 2012 — Democratic Appropriations Subcommittee Assignment in the House.

March 2, 2012 — Filling the tree in the Senate.

December 15, 2011 — Rule Layover Waivers in the House.

December 5, 2011 — How a bill becomes a law. Literally.

November 29, 2011 — The other caucuses. The ones in Congress.


California Dreamin’

March 14, 2012

Kevin Drum wondered last night if the conventional wisdom about California in the GOP primaries might be wrong:

One thing to keep in mind if you’re not from California is that our Republicans are not like, say, Maine Republicans: kind of moderate because they live in a basically liberal state. California Republicans are fire-breathing, take-no-prisoners, down-with-the-ship Republicans. I live in Orange County, which most people think of as ground zero for conservatism in the Golden State, and it’s true that we’re pretty conservative here. Our county board of directors routinely turns down federal money if it’s sullied in any way with connections to Obamacare. Still, as near as I can tell, OC Republicans are pussycats compared to Central Valley Republicans. I don’t know if the Central Valley Rs are more conservative than Alabama Republicans, but they’d sure give them a run for their money.

I don’t know very much about California state politics, but I do know that there’s some indirect evidence that might help us assess the last question, regarding the relative conservatism of California Republicans vs. Alabama Republicans. We can look at the voting records of their respective Representatives in the House.

Below is a plot of the average DW-Nominate scores of various partisan congressional delegations from the 111th Congress. The number next to each state is the state’s ranking among co-partisan delegations as to its tendency toward moderation (i.e. NY was the 5th most liberal GOP delegation; Idaho was the most conservative Dem delegation). Aside from California and Alabama, the states on the plot were not chosen by any algorithm; they are just there to give you the lay of the land.

You can see that California’s GOP delegation in the 111th Congress was, on average, more conservative than the average GOP Representative. The delegation ranked 31st most liberal out of the 41 states that had GOP Members in the 111th. Note that Alabama ranked 13th most liberal of GOP delegations. So based on this evidence (which is obviously indirect; we’ll get to caveats in a minute), Kevin’s most narrow point is well-taken: from a purely ideological point-of-view, it may be the case that Santorum or Gingrich might have more appeal in California than is typically assumed right now. Or at least the converse is not true: we don’t have any evidence that the Alabama GOP electorate is more conservative than the California GOP electorate.

More generally, I think the narrow takeaway point here is that there are a lot of surprises when you try to deduce the leanings of the primary electorate of a state based on that states general liberal-conservative reputations. For instance, it’s almost certainly wrong to assume that because California is a generally liberal state, it’s conservatives will be less conservative than those in a state that is generally more conservative. Another good example of this is Wisconsin, which I think we can fairly say is thought of as a liberal or liberal-moderate state overall. Indeed, its Dem delegation in the House was the 41st most conservative (i.e. 6th most liberal), on average, in the 11th Congress. But it’s GOP delegation was the 39th most liberal (i.e. the 3rd most conservative).

Now, for the caveats. Let’s start with the methodological ones. This is indirect evidence, at best. All sorts of disconnects exist between the DW-Nominate scores of Representatives from the 111th Congress and the ideology of the GOP primary voters in a state. To name just five: Reps are a small sample; Reps come from gerrymandered districts, not states, and those districts may be more/less polarized across states; conversely, GOP primary voters also exist in Dem districts; this was two years ago; and Member-district ideologies can diverge. The point is that you shouldn’t take this is some sort of smokin’ gun about primary voter preferences in California. It’s a lot closer to meaningless than it is to that. Just to highlight what I mean, Romney cleaned up in Arizona’s closed primary, which was the most conservative GOP delegation in the House in the 111th Congress.

Of course, this only begs a more important caveat: does the DW-Nominate scores of the House delegation sort along the same measure of ideology that is separating GOP primary voters between Romney and not-Romney? I haven’t looked into this enough to say, but my instinct is that it may very well not. Romney, Santorum, and Gingrich are all laying down pretty conservative policy positions, so the differences between them may have as much to do with style or messaging as they have to do with the actual policy differences of the type that could be picked up by something like a DW-Nominate score in the minds of voters. And so even if it’s true that California Republicans are more conservative than Alabama Republicans, it may also be the case that certain frames (such as an anti-Massachusetts attitude) are much more prevalent in Alabama than in California.

And yet, none of this is the main caveat, which undoubtedly remains the same as it has been for months: voter ideology, or voters in general for that matter, may have little left to independently say in the primary. This is because a fair amount of GOP primary voter belief (or any primary voter belief ) is really a coordination game being driven by party actors and party media outlets, who seem less and less likely to show any enthusiasm for the toppling of Romney in favor of Santorum. Which, of course, simply reiterates the fundamental truth of what is going on: California may matter this year, in the sense that Romney may not have the delegates to put him over the top by then, but the nomination in my view has been sewn up (save for Act of God type external shocks) for quite some time.

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The best NCAA tourney bracket ever

March 13, 2012

This is from Brad Turner and Steve Czaban and includes the game times, locations, announcers, TV listings, Vegas line, and info on each time like RPI and SoS. Here’s the .pdf file so you can print it out.

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Three ideas for improving college basketball

March 12, 2012

It’s March madness. Alright.

I love college basketball. Always have. My parents’ house is walking distance from Siena College, which has one of the best mid-major fan bases in the country, so I grew up rooting for them and, as with pretty much everyone else upstate, Syracuse. Needless to say, I think the NCAA tournament is the greatest sporting event of the year.

Still, I don’t love it as much as I used to. It’s pretty obvious to me that the contemporary sport has significant flaws, and those flaws have gotten worse over the past 5-10 years. Here are the three biggest problems I see facing the game right now.

The one-year-and-done policy for superstars. The fiat from the NBA  that you can’t play in the league until a full year after you finish high school has possibly wrecked more havoc on college basketball than anything else. The teams have no continuity of success; you don’t know half the kids staring in the NCAA tournament, and the student-athlete ideal has been degraded to a new low.

The NCCA tournament behemoth. The tourney has become so important that regular season games seem meaningless, and the conference championship — both regular season and tournament — has ceased to be interesting in the BCS conferences.

The fouling at the end of games. This isn’t a new problem, of course. And the steps they took in the 80’s to fix it certainly took care of the part of the problem that was literally ruining the game. But it still remains unsatisfactory. Not only does every close college basketball game become a free-throw shooting contest, but it also takes forever to finish a game. Which is great for the TV networks, but not so great for the fans. As someone who played rugby and loves watching college hockey, the difference could not be more stark: close games in those sports reach a frantic peak as you approach the finish. In college hoops, unless the difference in score is 3 or less, the ending grinds to a halt.

None of this comes close to ruining the NCAA tournament as a spectator sport; it’s still the greatest show on Earth for my money. But the combination of the three things has altered how fans approach the tournament, and how the NCAA sells it. In 1990, I could probably have named the star player or players on most of the BCS conference teams that made the tourney; they were usually juniors or seniors, and I had seen them play for several years. Not the case anymore. I think this changes how we look at the tournament. It definitely disrupts the multi-year storyline. Will it ever be the case again that a single game has the history of the Duke-UNLV rematch in ’91? Highly unlikely.

Anyway, here are three ideas for improving college basketball:

1. Make scholarship offers four-year commitments, regardless of whether the player leaves early. Right now, all of the best teams have incentives to offer scholarships to the one-year-and-done players,  since they don’t have to personally eat the externalities. Think about it: Kentucky can recruit four consecutive one-and-done players, and get them for the equivalent of a single scholarship over four years. Meanwhile, the fans have to eat all of the negatives associated with the system when all the best schools use that same strategy. And a collective action problem sets in: no BCS team can afford to not pursue the best talent while all the others do so.

Solution: make all scholarship offers 4-year slots, and 4-year commitments on the part of the schools.  You recruited John Wall and he left after one year? Guess what — you’re down a scholarship for the next three years, while his slot sits empty. Under this system, the schools pay part of the price for the externality. In theory, a new market would be created in which the one-and-done player is no longer such a hot commodity, and recruiting a series of them is especially unappealing. My sense is that this would bring things to a better (but not perfect) equilibrium. Would schools still take one-and-done players? Sure. But not as quickly as they do now. Things like transfers and career-ending injuries could easily be accounted for with a few simple rule tweaks.

Are there potential downsides here? Yes. The biggest problem is that the schools’ interests and the interests of the top players’ might diverge more than ever. It wouldn’t be a great situation if the school and the coaches were giving top players misinformation or other bad advice related to decisions about staying in school or leaving school. But it’s a trade I’m willing to make; the one-and-done system is killing the BCS leagues. And this solution is much better, I think, than other proposals, which are either pipe dreams (return to the days of no-freshmen allowed to play) or perhaps cures worse than the disease (raise the NBA minimum-age to 21).

2. Make all stationary fouls in the last two minutes automatically intentional. A generation ago, the twin problems of stalling by winning teams and fouling by trailing teams had gotten so out of hand that the NCAA took two drastic steps: they put in a shot clock, and later they added a double-bonus, so that most of the fouling at the end of the game did not results in 1-and-1 free throw trips, but instead in 2-shot trips. The shot clock solved the problem of the teams holding the ball for minutes at a time, which was absolutely killing the game in the early 80’s. Think back to the 1983 title game, when Houston got the ball, what, one time in the last two and a half minutes of a single-possession game? That’s not even basketball. And it also allowed teams to not start fouling so early, since in a 1-point game with a minute left, they were definitely going to get the ball back. The double-bonus made for a nice counter-point to this; when teams did start to foul (which is inevitable once the shot clock is turned off), there was not as much of a reward for doing so. It is much harder to come back under the double-bonus rules than under the old endless 1-and-1 rules.

But it’ss time to face facts: as well as the shot clock and double bonus have worked, the end of a close college basketball game is as awful as often as it is exciting. Unless the game is a 1-possession game right to the very last buzzer, you end up watching a whole lot of intentional fouls, court walking by tired players, timeouts, and commercials. When you are actually at the arena, all the energy of the game deflates. And note that this is often  a problem even in the games that have great finishes. Because in order to mount the comeback that leads to the game-winning 3-pointer, teams often start fouling with 90 seconds or more to go, when they are down 6 or 7 points. It’s annoying, to say the least.

Now, I’m not knocking the strategy. Teams are almost certainly correct to start fouling early. What needs to happen is that we need to reduce all incentives for doing so. The truth is that we’ll never stop the fouls once the shot clock is turned off; no matter how stiff the penalty for fouling, if the alternative is watching the other team run out the clock, the incentive will always be to foul. So what needs to be minimized is all the intentional fouling that occurs before the shot clock is turned off. If we could get the game in a situation in which teams didn’t start fouling in earnest until there were less than 35 seconds left, that’d be a major improvement.

But to get there, the refs have to start calling intentional fouls. Not flagrant fouls. Intentional fouls. The problem at the end of the game is that everyone is intentionally fouling, but the refs don’t call intentional fouls. So let’s force them to.  How about this: any foul in the last three minutes in which the offensive player is simply holding the ball and standing there is an intentional foul. Ditto if he’s dribbling without attempting to attack the basket. Furthermore, any foul in the offensive backcourt after possession is gained is an intentional foul. This won’t reduce fouling to zero — there will always be logic to foul when the shot clock is off — but it will punish teams so severely that it is barely worth it.

3. Restructure the NCAA tournament to give first-round byes to the conference champions. This is my most radical suggestion, but I don’t see any way around it. If we agree that the NCAA tournament has begun to overshadow the regular season in both BCS league and smaller leagues, and has more or less destroyed the importance of the conference tournaments in the power conferences, then the only possible way to reverse the situation is to make the NCAA tournament more responsive to teams doing well in the conference regular seasons.

Now, there’s a history here. Once upon a time, only the conference champions were allowed to play in the NCAA tournament. You’re damn right the regular season mattered back then. And, because of that, most conferences didn’t hold conference tournaments at the end of the year to decide who would receive their one bid to the tournament (the ACC was an exception).  But then the one-bid-per-conference rule was discarded in favor of expanding the tournament, and at that point all incentive was lost to not hold a conference tournament, since they are potentially very profitable for the conferences, and then you end up where we are today: everyone but the Ivy League gives their automatic bid to the conference tournament winner.

Now, the most obvious solution is to just go back to the one-bid-per-conference rule. But that’s obviously not going to happen. A second option would be to ban the conference tournament. Also not going to happen, and has the added problem of not solving anything at the BCS level, since all those conferences have multiple teams as locks for the NCAA tournament before the conference tournament even begins. What you need is a way to revitalize the regular season in the big and small conferences, without killing the conference tournaments.

Solution: automatic bids, and automatic first-round byes for regular-seasons conference champions. You heard me. Give both the Big East champ and the America East champ a first round bye in the NCAA tournament. Before we address the issue of small-conference champs getting byes, let’s talk about the math. It’s ridiculously simple. Right now you have 31 conferences with an automatic bid, and 37 at large bids, for a 68 team field. All you’d do here is give out 31 bids/byes to the regular season champs, 31 bids to the conference tourney champs, and 34 at-large bids. If a team won both the regular season and conference tourney title, then that’s one less conference tourney bid and one more at large bid (see below for the problems this creates.) Then you have 32 byes (for the regular season champs plus, say, the single-best non-champ), and a first round that features all the at-large bids and all the conference tourney champs that didn’t win their regular season.

Positives: a renewed emphasis on the regular season, in both small and big conferences. An expanded tournament tournament, but one that doesn’t favor the BCS schools. Continued meaning for the conference tournaments, and thus the possibilities for teams that were not good during the regular season. Negatives: an expanded tournament, which many do not like. First round byes for obviously inferior teams. Weird incentives for conferences to either get numerically smaller, or to rig their conference tournaments.

It’s the last point I want to take up here, because I know someone will bring it up if I don’t. Syracuse won the Big East. Under this system, isn’t it in the Big East’s interest to have them not win the conference tournament? Yes, but that’s already the case. We don’t see conferences tanking their tournaments to get an extra team in the NCAA tournament that otherwise would not have made it, do we? No we do not. Now, this could potentially be a problem in the lower conferences, since it could mean the difference between one bid and two bids every single time. A remedy for this might be to preference teams who win both their regular-season and conference tournament with seeding consideration.

Another objection might be that we’re biasing the system toward the smaller conferences. In effect, we’re giving regular season champs in the small conferences byes, while making the at-large teams from the bigger conferences play an extra round. To which I say: that’s a fair trade in my book. If all the BCS at-large teams have to play a small conference tournament champ, or another at-large team in the first round, that’s a very small contribution to be made in order to fix the entire regular season of college basketball. Think about it: when was the last time anyone really cared what happened on the last weekend of the regular season? Unless you follow Ivy League hoops, you probably can’t think of it. This would change all that. And it would be a change for the better.


How was the play, Mrs. Link’in?

March 9, 2012

Some things I enjoyed from this week:

1. First things first: if this doesn’t leave you crying with laughter, I’m not sure we can be friends. A children’s song featuring an inspired performance by Brian Johnson of AC/DC.

2. Seth Masket, John Sides, Brendan Nyhan, and friends have a new academic article out with more evidence that the ACA vote hurt Democrats in the 2010 election.  Condensed discussion on Seth’s blog and on John’s blog. As I’ve written about in the past, I think it’s important to remember that, although no individual Member wants to lose, sometimes trading seats for policies is definitely in the best interest of a party.

3. Adam Serwer on AG Holder’s explanation of when the U.S. government can kill you. I actually care a lot more about the issue of indefinite detention than I do about targeted assassination of U.S. citizens abroad, but that’s kinda like saying I care a lot more about my kids than my nieces and nephews. Ugh. “Trust us.” Never.

5. What I would give to be 14 years old in the age of advanced sports metrics. I could read and think about this stuff all day. And I might as well plug the blog of an old Yale friend of mine, Ben Morris’ Skeptical Sports, which I think is some of the best independent work going in the genre.

6. Jamelle Bouie has been tearing it up on his new blog over at The American Prospect. Fellow libertarians should give him a try, he’s a smart liberal who brings a libertarian sensibility to a lot of issues. In that sense, I really liked this piece, because it reminded everyone that technology changes culture, culture is prior to the state, and that’s both good and right.

7. Ezra Klein and Seth Masket make a similar point: Romney is not some underfed bird with a clipped wing, so everyone in the MSM stop pretending he is. In related thinking, read Jon Bernstein’s post predicting this fall.

8. I have not read Matt Yglesias’ new book yet, but I will soon. I don’t always agree with Matt, but I’m more or less of the mind that he’s the best blogger in the world; I am just constantly amazed at the quantity of super-high-quality writing that he gets done every single day. I can only assume that it’s just as good or better when he has time to sit down and really think about it.

9. I decided (rightly or wrongly at the time) months ago that Romney had this thing wrapped up. So I just can’t get all jazzed about Super Tuesday or the upcoming states. But I did like Nate Silver’s assessment of Santorum’s chances if Gingrich drops out.

10. Here’s my two cents on the Kevin Drum-inspired debate over what the best Star Wars movie is: I like Episode IV the best. I just can’t find a single (more than minor) flaw with it. There’s just nothing that bothers me about it. And that’s not true of any of the other films. My problem with the consensus pick (Empire Strikes Back)  is two-fold: first, too much psuedo-humor. I just don’t like the hyperdrive breakdown storyline. Second, I think the whole Hoth/Wampa sequence is weak. (In fact, I’m with Bernstein (and against Masket) on the merits of the Jabba sequence in ROTJ: this was always the single-best 15 minutes of the Star Wars saga for me. It’s certainly the one I wore out our VCR tape re-watching over and over again in when I was 6.) And, of course, Drum’s attempt to minimize the Ewoks is absurd.

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Fight for your right to party

March 8, 2012

Earlier this week, Rick Hansen wrote a piece arguing that Congress should legislatively end the caucus nominating system. Jon Bernstein wrote a great piece in response, arguing against further regulation of party nomination. I wrote a piece two days ago both endorsing and going further than Bernstein: in theory, I don’t believe there should be any public regulation of — or even public recognition of the existence of — the political parties. And certainly not any state favoritism accorded them on a preferential basis.

Shortly after I wrote that, Scott Lemieux reacted to Bernstein’s piece, and came down on the side of at least the status quo, but leery about the possibility of unequal access to the nomination process if the parties were allowed to simply do their own thing:

Primaries, as the Supreme Court noted when it struck down the Texas Democratic Party’s all-white primary, have always been subject to state regulation and intertwined with the general election process. Given that we have an electoral structure that limits voters to at most two viable choices in most elections, primary and general elections cannot be neatly separated. Barring a greatly accelerated economic recovery, any nominee chosen by the Republican Party has a reasonable chance of being president of the United States. For many House and some Senate elections, the process of candidate selection is the only practically meaningful election given the ideological makeup of some states. Thus, the government has an interest in ensuring some level of fairness in the candidate selection process, and, in general, the electoral system would benefit from more uniform federal regulations rather than more decentralization.

Bernstein has since responded, clarifying his point of view about the ok-ness of current regulations:

In my reading, not only are political parties necessary for democracies, but  parties must be both permeable and internally democratic for a polity to be truly democratic. So, contrary to Glassman, I do think there’s an important state interest in limiting the extent to which parties are conspiracies of some against the whole … [b]ut “internally democratic” can cover a very wide range of practices, and I’d want to see a very light regulatory hand.

So: if parties design procedures which give activists (and other party actors) more influence and voters-as-just-voters less, that’s fine with me as long as those voters can, if they choose, become activists. But I’d have a very big problem with anything that says that some groups can’t become active party members, whether explicitly or implicitly, and I’d be okay with the state stepping in to prevent that.

I should clarify my position, because I actually don’t think I disagree all that much with Bernstein or Lemieux, at least not in how current practice is structure. I’d make three points:

1. If the state is going to control the ballot access, then the White Primary has to be barred by law. I don’t think there’s any question that the White Primary cases were correctly decided by the Supreme Court.  By the time they took place in the 1940’s, the state had long been deeply involved in the inner workings of primary elections: they controlled the ballots, the ballot access, had laws governing corruption in primary election, and — most importantly — the bar on blacks participating in the primary was state law. That’s ridiculous. Therefore, I find it perfectly reasonable that the parties should be subject to, at the least, regulations necessary to ensure that individual citizens have the opportunity to participate on an equal basis. Once the state is involved — and especially when they take actions that diminish the market forces that incentivize a private party system to behave optimally on its own — then state-mandated open participation makes complete sense. On this, I think I agree with Bernstein and Lemieux.

2. That said, I think equal opportunity is a very, very low threshold. The only thing I would require of the parties in regard to equal opportunity would be non-discrimination among individuals in regard to participation. I would still leave it up to them to determine what “participation” actually meant. I’m fine if parties want to have primaries. I’m fine if they want to have non-discriminatory caucuses. But I’d be fine with stuff a lot more restrictive than that: if a party only wanted to allow people who had been registered members of the party for 5 years or more to vote in a primary, I’m all for allowing  it (although I wouldn’t personally be in favor of it). If they wanted to restrict primary participation to people who attended a monthly county meeting, same thing. Ditto if they required a certain amount of canvassing on behalf of the party to participate. Again, so long as these things were applied equally, I’d be ok with it in the modern environment.

3. Furthermore, I don’t think  the state inherently needs be involved with the parties. As I said, under the current arrangements, it would be crazy to reverse the White Primary decision. But the current situation — in which the state regulates the ballot access — is what freezes us into the two-party system we have. The Democrats and the Republicans are not going anywhere, and it’s directly because of state-given advantages they have. It’s like two businesses that have effectively used the government to create an oligopoly. In theory, the role of the state in regard to parties should be the same as the role of the state in regard to business: encourage open competition, and ameliorate situations in which market failures occur. Remember, the market is not beloved by the players. Just as individual businesses have no incentive to encourage market competition (but instead have strong incentives to stifle it), political parties have every incentive to discourage party competition.

And thus what you have in the current environment is exactly what the two existing parties want: permanent existence as state-run institutions. There’s no chance of replacement by a third party. But people get the reason wrong all the time for why that is the case. It’s not because no one can seem to organize a third-party outside of the existing parties. It’s because there’s no way for insiders within the party to effectively bolt and get on the ballot. That solves a lot of problems for the parties: minority dissenting opinion doesn’t really have to be taken too seriously, disgruntled losing candidates don’t need to be mollified, and shutting people completely out of the process only stands to lose votes, rather than threatening your long-term existence.

And that’s the real danger of things like the White Primary; with the ballot access locked up by the state, the market has no ability to react, and the entrenched status quo is easily perpetuated. The parties certainly respond to market forces in regard to gaining voters; but they have little incentive right now from market forces that threaten their own existence, and thus their own internal regulations tend to be created in response to things other than basic market forces.

Now, none of this is not to say that market failures don’t exist. Even an utterly private party system in Texas in 1940 might not have been able to save African-Americans who wanted to participate. They were perhaps too small a minority operating in a one-party system. Even if the state didn’t control the ballot access, it’s not clear they could have achieved meaningful participation. So the state may have had to step in anyway.

But I’m less sure of that than most, and I’m dubious about whether it would be a problem today under an utterly private party system. In much of the south, there was no Republican party to vote for in the general election. But that had nothing to do with market forces; it was directly the result of the state itself destroying the market, quite purposefully. Not only was the state explicitly trying to keep African-Americans from  voting, but the threat of private and/or state violence was discouraging African-Americans and their white allies from even trying to form a Republican party to compete with the one-party white democrats. You could imagine that in a situation where there were zero ballot access hurdles (i.e. print up your tickets and hand them out to your friends) and the state was ensuring everyone’s right to vote in the general election, African-Americans and their white allies could have easily put together a Republican party that was not only competitive, but very quickly the majority in many district across the South.

And if that happened, the Democratic party would have, by necessity, needed to respond to market forces and start trying to attract African-American votes. And presumably that would have eventually led to ditching the White primary. The point being that we shouldn’t assume the problem was inherently with the party system, given that the entire state apparatus of the South was conspiring to prevent African-Americans from voting in the general election. Which was clearly out of bounds, both legally and under any normative theory of voting and parties. So I’m disinclined to learn that the lesson of the White Primary is that no private party system can create equal opportunity because you are bound to get things like racial discrimination. I’m just not sure it follows.

But, of course, it did. The White Primary was real, and not only African-Americans but also aggregate public choice suffered from its existence. So we have to be wary of it. But I’d be less wary of it today than 70 years ago. If we completely privatized the party system now — and I mean completely — I have a hard time imagining we’d see very much in the way of systematic racial discrimination. Mostly because of the reasons stated above: the state generally has a commitment to universally protect the right to vote in the general election, and if it could do that at an acceptable level (I know many people think it currently does not), then I think market forces under an privatized ballot system would almost certainly destroy the possibility of a White Primary cropping up.

In fact, I think discrimination would be the least of our worries about private parties. Although I support the idea of deregulating the party system, I worry a lot about corruption. If you truly want to privatize the parties, you need to get rid of all laws punishing corruption in party activities or primaries. You have to force the parties to hold their own elections, in private dwellings, and count the ballots on their own. In effect, you have to make them do it privately. And that could result in a real mess, and it’s the main reason I retain some skepticism about deregulation; I think the possibility of vote buying and election fraud and the like would almost certainly raise the appearance of impropriety over the parties, if not an actual massive problem. And don’t think this wasn’t an issue in the 19th century, it was. The parties tended to use the caucus/convention system for just this reason; organizing a state-wide private vote without the help of the government is really hard.

Which is probably an odd way of saying that while I think normatively there should be no relationship between parties and the state, in practice I think we should simply move toward a system that lets parties behave more like, well, parties. And the first thing I’d do on that count is get rid of all open primaries. They go against the very spirit of a party system, and I can’t think of any legitimate purpose that they serve, except to weaken the control of the co-partisans over the nomination, in favor of mass participation. But that mass participation only serves to render the parties something more like an extra layer of elections, rather than a coherent group of like-minded political actors.

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The 2012 GOP nomination, as told by the 1860 general election

March 7, 2012

[Two rocking chars sit on a front porch. In one, there’s an older man, maybe sixty. In the other, a young boy of about 12. Both are drinking lemonade. It’s still afternoon, but the July sun is starting to set.]

BOY: Grandpa, tell me about the [election of 1860 / GOP nomination of 2012].

GRANDPA: Oh, geez, big guy. That was quite some time ago. I wasn’t much more than your age back in those days. But what a contest! What do you want to know?

BOY: Well, nothing in particular, I guess. Just what happened.

GRANDPA: Well, let me see. There were four major candidates by the time we got around to serious votin’. Other names had been tossed around, including some bigger names. A Senator. A Governor or two. But none of them panned out. Never made it to the dog days. [see here, and here]

BOY: Who were the four candidates?

GRANDPA: The strongest one of them, the fella who ended up winning, he wasn’t really a politician by trade. A politico, yes. But not really a career elected official. He had held a high office for one term, but didn’t stand for re-election. Now, don’t get me wrong, he had been in and around national politics for years, but just not as a candidate. Oh wait, let me see … scratch that, he also lost a Senate election at one point too. [see here, and here]

BOY: How’d he end up win—

GRANDPA: Hold on. Slow down. We’ll get to that. You see, it’s not usually the case that we have four candidates. Most of the time, it’s just two. But that year was special. People couldn’t decide who they wanted to support. Many of them — heck, more than half of them — knew they didn’t want the fella who ended up winning. But that didn’t add up to them being able to settle on one of the other men.

BOY: Wait, the fella that won — he didn’t get more than half the votes?

GRANDPA: Ha. No he did not. Not even close. Across the nation, he got something like 40% of the vote. He lost a lot of states, and even in the states he won, he didn’t always get half the votes. [see here, and here]

BOY: Well, then how did he win?

GRANDPA: Because getting half the votes — that’s not the way the system works!

BOY: It isn’t? I thought this was a democracy. Doesn’t the majority rule?

GRANDPA: No! In many cases, the plurality rules. A majority against you — so long is it is divided — often isn’t enough to stop you. Trust me, more than a few people messed this up at the time. All ranting and raving about how this fella couldn’t attract the majority of the national electorate to back him, how he couldn’t win in certain parts of the country, especially down south. None of it mattered, because politics is a numbers game, and the numbers that matter are not votes, but electors. [see here, and here]

BOY: Electors?

GRANDPA: Yeah, you know. Electors. Delegates. The men who really make the decision. They are the key. Every state got a handful of them, roughly in proportion to their popular strength. And those states got to hand them out in whatever way they saw fit. Under law, of course. [see here, and here]

BOY: And different states did it differently?

GRANDPA: That’s right. They could hold an election. They could have the elected officials decide. Whatever they wanted. But more importantly, they could also hand out the electors by any formula they wanted. Back that year, some states gave the electors out proportionally. But a lot of states just gave all their electors to whoever got the most votes. [see here, see here]

BOY: Even if they didn’t get the majority of the votes?

GRANDPA: That’s right! And that was the key. The fella that won, he didn’t sweat not having a majority of the vote in most of the states, because he knew — just as his opponents knew — that so long as he got a plurality in a lot of those winner-take-all states, he was gonna get all the electors. And that meant that 40% of the national vote could easily translate into a landslide among the electors.

BOY: That’s funny math.

GRANDPA: Well, it cut both ways, the winner-take-all system. In a multi-candidate field, 40% of the national vote could turn into a landslide victory if you spread it around right. But it can also turn into a landslide loss if you didn’t spread it around right.

BOY: Huh?

GRANDPA: Think about it. If you lost those winner-take-all states by a very slim number of votes, you got nothing. So your 40% in a state might have translated into 25 delegates, while my 39.99% translated into zero.

BOY: Did that really happen?

GRANDPA: You bet it did. The fella who ran second in the national vote, he ran into that problem in a bunch of places. In some places the fella that won got 35% of the vote and he got 32%. One state in particular — I can’t remember what it was — he lost by less than 1% of the vote. And neither of them got close to 50% of the votes in that state — the other candidates ran fairly strong. [see here, and here]

BOY: But if all the other candidates were opposed to the winner, why didn’t they organize together and run one candidate against him?

GRANDPA: That’s a good question. And there are a bunch of answers. For one, it might not have mattered. Because the voters who supported the other candidates weren’t exactly 100% united against the guy who won. A fair number  of them thought of him as their second-choice. So if one of the opponents had dropped out, a lot of his voters would have drifted toward the winner. It’s just wasn’t necessarily the case that any individual opponent could have beaten him. A lot of people have been fooled by this over the years — thinking that any single opponent could have won — but that’s not true.

Second, some of other candidates thought they could win. Couldn’t blame them for trying! Although the math of the election was pretty obvious, in retrospect, from the get-go, a lot of people thought it was a wide open field. Including the other candidates.  So none of them really wanted to give up until it was clear they were beaten, and by that point they were all beaten.

It was also probably the case that at least one, and maybe all, of the candidates weren’t even trying to win, just trying to keep the main fella from getting a majority of the delegates.  To get the vote into a brokering situation, where they thought they might have more leverage. And in that case, it sometimes would be correct for everyone to keep running in opposition. You know, you beat him in that state, I’ll beat him in this one, and so forth.

BOY: But that still doesn’t explain the situation. There aren’t usually 4 candidates. What happened?

GRANDPA: Well, it was a crazy time. Tension had been building within the system for a while. You see a war had occurred about a decade earlier, and it left an incredible political mess in its wake. A pretty strong cleavage had developed within the electorate, and there was a somewhat radical movement afoot that threatened to shake up the traditional political alliances. So you had this new radical grassroots element threatening to capture things, and the traditionalists and the old guard trying to resist it. [see here, and here]

BOY: So it was a gradual thing?

GRANDPA: Kinda. And it was definitely coming to a head that year. But a few events actually created the long, drawn-out, multi-candidate race. You see, the Supreme Court had just a few years prior issued a decision, and that decision had really opened up the floodgates. Totally rearranged the playing field and the candidates’ calculus. [see here, and here]

BOY: Must have been some decision.

GRANDPA: Indeed. But that’s not all. Two of the opposition candidates, as well as their respective followers, really hated each other. And again, this is another reason they couldn’t simply combine. They had been part of the same movement years before, but the events of the decade, as well as their personal animosity for each other and respective egos, had driven them apart. [see here/here, and here/here]

BOY: Wow, they must have really hated each other.

GRANDPA: Yup. One of them was strongest in the South, the other ran well in the old west, east of the Mississippi. What some call the Midwest now. And while some people deny it, it was pretty clear that the one fella took that Supreme Court decision and more or less used it as a sledgehammer to try to destroy the other fella.

BOY: What about the fourth candidate, you haven’t said anything about him?

GRANDPA: Well, he was never really considered a serious contender. He had a base of support among a very narrow strip of the electorate, but it really wasn’t enough to make much difference. And his platform was also really orthogonal to the rest of the candidates. Sure, it dealt with the pressing issues of the day, but not in a way too many voters were considering them at that point. He only got about 10% of the vote.  [see here, and here]

BOY: Why didn’t people gravitate toward the guy who won? What didn’t voters like about him?

GRANDPA: Well, it was partially an artifact of the 4-way race. More choice just reduces your percentage. Still, I appreciate your question. It was largely two things. As with all candidates, some voters just didn’t like him. But a lot of the voters who were on the fence, voters who might have voted for him, simply didn’t trust him. He had been kinda late to his positions, I guess, and that made him somewhat unpalatable to those who might have been his base, and slippery to everyone. But mostly people were searching for something that simply wasn’t available. All our political heroes of the previous generation — the men who had held the disparate strands together in the past — had died. But their shadows loomed large over the election. [see here, and here]

BOY: I see. So the stakes were pretty high?

GRANDPA: They were. The nation was more or less deadlocked over some fundamental issues, and whoever won the election was going to have a pretty big hand shaping the future.

BOY: I would have loved to see the campaign!

GRANDPA: Honestly, that was the strange part. The campaign seemed utterly detached from reality. There was a lot of debate, of course. And everyone was saying things related to the keys issues. But it didn’t seem like anyone wanted to wrestle with the fundamental problems at hand. In a lot of ways, it felt like the same old song and dance. The confetti came out, the rallies were held, and the past allegiances determined the outcome. Some people saw that we were on a precipice, but mostly it was just politics as usual.

BOY: Who’d you vote for?

GRANDPA: Wasn’t old enough to vote, but great-grandpa voted for the guy who came in fourth. Ha! [But, then again, maybe he cared about the union first and foremost? -ed]

BOY: So it was pretty memorable, I guess, grandpa.

GRANDPA: Yes. It was one hell of a contest, not one I’ll soon forget. Quite different than anything I ever read about that came before it, in form if not in substance, at least. And boy was it consequential. Wow.

BOY: Why, what happened after the election?

GRANDPA: A lot. But that’s a story for another time…

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Should I vote today?

March 6, 2012

I have not yet voted today in the Virginia primary, and I’m really on the fence about whether I should.

This may surprise some of my regular readers, since I’m generally an unabashed romantic about election day. But I’m also a firm believer that the structure of the presidential primary election system in Virginia (and elsewhere) is fundamentally flawed, in at least two ways:

1. It is oppressively difficult for candidates to get on the ballot; and

2. Citizens who are not registered members of the party are allowed to vote in the party primary.

Let’s take the second concern first, since it’s as symptom of a more general problem. I’m a believer that the political parties are private entities, not public utilities. As Jonathan Bernstein wrote in an excellent piece this morning, party nominations are fundamentally different from general elections, and should not be regulated or held to the same standard:

But party nominations are different. They are how parties govern themselves, and the parties should be trusted to know what works best for themselves. Hasen writes, for example, that caucuses are poor organizational tools for the parties. That may be true—but shouldn’t it be up to the party to decide? It should be up to the parties to decide whether they would prefer a relatively high-turnout delegate selection scheme that would put more influence with mass electorates or a system that empowers smaller, more dedicated groups of party activists. The parties are also best positioned to figure out which influences they prefer (including second-order influences; mass electorates give more power to the media, which parties might not like). More to the point, it’s the parties who have everything at stake here, so they should be the ones to choose.

I could not agree with this more, and I’ll even go further: normatively, there should be no relationship between the parties and the state. As far as I’m concerned, the political parties do not, and should not, exist in any public sense. They are simply private tools of political organization, and the state should neither preference nor malign — or even acknowledge in any way — their existence. In a perfect world, I’d get rid of it all. No public money to parties, no access rules, no requirement to hold a primary, no Ds and Rs next to their names on official congressional documents, and so forth.

And I’d start by scrapping the Australian ballot: getting the state out of the business of printing ballots, out of the business setting deadlines for running for office, and out of the business of controlling ballot access. Just a free market sphere outside of the formal political system. Parties can have primaries, can have caucuses, can have neither. Just figure out your candidates (or not) however you want, print up some ballots, get them to your supporters, and have them come drop them in the box. Most votes wins the office. The state is not involved until they collect the privately-produced tickets.

Still, I understand that we’re working in a second-best situation. Breaking: we don’t live in a perfect world. Corruption was part of the reason the states took control of the ballots. (However, I think it’s been fairly well shown that the parties themselves were complicit in this: the state ballot solved the problem of party bolting for them, minimizing the risk that third-party candidates could arise or win elections.) And things like the Democratic white primary are really creepy. (Although I’d be fine with a party that, say, restricted primary participation to people over 21, at their own peril).  But, theoretically, I think those downsides are outweighed by the downsides of the state having control of the ballots. If you can’t hold your party together, you don’t deserve the artificial hand of the state helping you suppress the dissenters. And if you want to bolt a party and start printing your own ballots a week before the election, that strikes me as fundamentally much closer to the democratic ideal.

But here I am. The state of Virginia allows anyone to vote in the primary. While much of the talk is about whether outsiders (i.e. independents and Democrats) will affect the outcome, I don’t personally feel comfortable voting in a party election in which I’m not part of the party in any meaningful way, and in which I almost certainly wouldn’t be eligible to participate if the state did not have control of the ballots. I’m not part of the Republican Party. My ability to directly influence their nomination system is, in my mind, not legitimate. Now, there’s a very good practical counter-argument: the rules are what they are, and even if I disagree with them, I’m still allowed to play by them. No different than opponents of Super PACs setting up their own this election cycle. Or of any reformers taking advantage of current rules, as is. My influence on national politics is enhanced if I participate, and my ability to change the system is not enhanced by not participating. Therefore, I should vote in the primary.

So I’m torn. Except that there is another issue: the ballot access requirements. And this just gets my blood boiling.

The only people on the Virginia GOP ballot today are Romney and Paul, because the absurdly high threshold required to qualify for the ballot was not met by Gingrich, Santorum, or any of the other candidates:

Virginia law requires that any person appearing on a party’s presidential primary ballot receive signatures from at least 10,000 Virginians who are duly registered to vote with a minimum of 400 signatures required from each of Virginia’s 11 congressional districts. The Virginia State Board of Elections (SBE) required that these signatures be placed on official petitions which were circulated by Virginia residents, and that these petitions be filed with SBE by December 22, 2011. The political parties in Virginia are responsible for the counting of those petition signatures and the state Republican Party certified to SBE that only two candidates met the requirements for ballot access: Ron Paul and Mitt Romney.

That’s more or less the definition of unfair. I get that the state has to limit ballot access in some sense — otherwise we’d have hundreds of people on the ballot — but any system in which a well-funded major national candidate struggles to get on the ballot is more or less bankrupt. Oh, and before you mention it, there’s no write-in possibility:

Virginia election law (§ 24.2-529) does not permit write-in votes for primary elections. No ballot issued during the Republican Primary on March 6, 2012 will contain an area where a write-in name may be included. In the case of electronic voting equipment, the option for a write-in vote has been disabled. In the case of paper ballots, if a name is written in a blank area on a ballot, or a name is scratched through and another is inserted, it will not register as a vote. In no way will defacement of an official ballot be tallied as a vote for any person other than those candidates currently listed.

And in this case, I do feel like not voting has an impact on possibly changing the law: if voter turnout is pathetically low today — in what is (at least popularly believe to be) still an undecided nomination process, then maybe the state legislature will consider rethinking the ballot access requirements for the presidential primary. Because today, for all intents and purposes, the election in Virginia is more reminiscent of some banana republic than a centuries-old democracy. And don’t start in with any civic duty nonsense today. I don’t see any way in which it’s my civic duty to participate in a primary for a party I’m not a member with a nomination slate choice that is not reflective of the existing candidates.

Still, I’m quite up in the air about this. My instinct is to still go vote. So I’ll  leave it up to the readers. Should I vote today?


Sad Tuesday

March 6, 2012

Representative Donald Payne (NJ-10) died this morning, after a short bout with cancer. Rep. Payne was the first African-American to represent New Jersey in Congress. He was 77.

From an institutional standpoint, what happens when a Representative passes away while in office? A few things:

1. The Clerk of the House assumes responsibility for the Member’s office.  Representative Payne’s office will be renamed “Office of the 10th District of New Jersey.” Under House Rule II, clause 2(i)(1), the staff of the office may continue to be paid for performing their duties, under the supervision of the Clerk, until an election fills the office with a new Member.

While these staff responsibilities no longer include advising on roll call votes, developing legislation, or taking policy positions, there is still the normal amount of constituent casework to be handled, as well as the process of closing the office and organizing the files and records of the Member, which under House rule are the property of the Member.

Many staff, of course, leave their jobs to pursue other employment opportunities. The Clerk is authorized to hire and terminate staff, as necessary, in order to maintain the functioning of the office. In typical practice, only a small number of staff are necessary.

2. The Member’s next of kin receive a benefit. Under law (2 U.S.C. 38a), the remainder of the Member’s salary is paid to the Member’s specified beneficiary or heirs. It has also been long-standing practice for Congress to include a death gratuity, usually in the sum of one year’s salary, payable to the deceased Member’s widow or widower, or children, in the next annual Legislative Branch Appropriations Act.

3. The whole number of the House of Representatives is adjusted. The death of a Member triggers clause 5(d) of House Rule XX, which instructs the Speaker to announce that the whole number of the House has been adjusted. This is important for determining any numerical threshold that relies on a fraction of the total Membership of the House, such as the Constitutional quorum to do business. Since January 25, the House has had a whole number of 434 (due to the vacancy of the 8th district of Arizona). With Representative Payne’s death, the number will be reduced to 433.

4. An election is triggered. The Constitution provides for the filling of vacancies in the House, which can occur by death, resignation, expulsion, declination, or the House declaring a vacancy. Under typical practice, Governor Christie of New Jersey will declare the vacancy to exist in the 10th district, and then will issue writs of election to fill Representative Payne’s seat, under the protocols of New Jersey law.

5. Various memorials are traditionally provided for by the House. The death of Representative Payne will almost certainly be officially acknowledged on the floor of the House, and that recognition may be followed by a moment of silence. At some point, either immediately or in the following days, a resolution of condolences is usually brought up on the floor, and Members of both parties are given an opportunity to speak in memory of the Member. On occasion, a similar resolution may be offered in the Senate.

Unless the family of the Member is having a private funeral, statute provides that the House will pay for a congressional delegation to attend the Member’s funeral, and under law (2 U.S.C. 124), the House is authorized to defray to expenses of the funeral. If the Member is to be buried at the so-called Congressional Cemetary, the House is authorized by law to pay for the monument.

At the end of a Congress in which a sitting Member passed away, a tribute book is also produced by GPO, which includes the record of the memorials held in Congress, as well as tributes or eulogies entered into the Congressional Record by other Members.

Godspeed, Representative Payne. May you rest in peace.

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Fasten your wonk belt: let’s talk filling the tree in the Senate

March 2, 2012

Yesterday, in making a point about the filibuster, I mentioned that one fundamental difference between the House and Senate is the relative ease by which the partisan House majority can block minority amendments, even if those amendments have the support of the (numerical) majority of the chamber. As I’ve written about before, this has pretty big consequences for the deliberative nature of the chambers:

If deliberation is to mean anything in legislative politics, it needs to mean this: when one person proposes an idea, if someone else has a better idea that more people will like, the better idea should win the day. In effect, if you have a bill you want to pass, but I have an amendment that the majority thinks would make the bill better, then my amendment should be incorporated into the bill. That, in legislative life, is deliberation: a new idea having the chance to be voted on to replace an old idea, and actually replacing the old idea if the majority likes the new idea better. Normatively, this is what we want: people continually propose modifications to law, and the legislative output iteratively develops to ultimately match the will of the majority.

And when you come around to that version of deliberation — rather than one based on people listening when other people speak —  all of a sudden the Senate does begin to resemble the world’s most deliberative body. Generally speaking, amendments cannot be restricted on the floor without unanimous consent; anyone who thinks they have a better idea is guaranteed a vote on that idea to see if the majority agrees with them. No one can get their own idea passed into law without the possibility of a better idea replacing it. This is the essence of the Senate at its best — there’s no way to lock the place down  and ram through your ideas, if the majority wants a different idea.

But wait, in what sort of oddball legislature would they allow the opposite — ideas getting passed into law that a majority wants to, but can’t, amend with better ideas? Oh wait, that’s the United States House of Representatives! In the House, the majority can write restrictive rules of debate for individual bills, rules which state what amendments  are and are not allowed to be voted on. The majority leadership routinely uses special rules, held together by partisanship and punishment for dissenters, to eliminate the possibility of popular amendments altering the leadership’s ideas in any way.

This isn’t an occasional thing, either — the vast, vast majority of important legislation goes through the House under a special rule, and a fair percentage of the time there is a plausible amendment out there which would have majority support in the chamber, but cannot be proposed because the leadership has excluded it from the special rule, and has held together the majority party on the special rule vote through carrot and stick tactics with the backbenchers. And this has been a recent development. Even as recently as 30 years ago, most important bills came to the floor under open rules, or at least allowed a wide variety of amendments. Now it is virtually zero.

I say this all because the general public consensus is that the Senate is broken. But if your concern is democratic deliberation, in the true legislative output sense of the word, the House might be your real worry.

All that said, there is a procedural way for the majority leader to at least partially shut-off undesired amendments in the Senate, known as “filling the tree.” This procedural tactic, although still relatively rare, has come into greater use in recent Congresses. And from a deliberative point of view, it is not unrelated to the value of the filibuster: if  minority-offered amendments can be eliminated procedurally, then one of the key arguments in favor of the filibuster is undercut. For if the filibuster cannot be used to secure the right of minority amendments, then it is largely reduced to just an up/down supermajority hurdle on the passage of legislation, which is a much weaker (albeit, still defensible) justification for its existence.

So let’s talk through filling the tree  in the Senate. It’s a nice way to do a basic refresher on some Senate amendment procedures, too. There’s a ton to talk about here, so let’s do it Q&A style.

Q: What prevents House-style special rules from being written in the Senate to restrict amendments?

A: Unlike under the House rules, the Senate rules do not allow a bare majority to change the rules at will. So while the partisan majority in the House can (and routinely do) write temporary rules  to structure debate and limit amendments, in practice the Senate can only do so by unanimous consent. Which they do, all the time. But if they can’t come to a unanimous consent agreement to structure the debate on a bill, then they have to go by regular order.

Q: What does “regular order” entail?

A: It just means that they have to go by the actual Senate rules, rather than whatever they would make up in a unanimous consent agreement. For this discussion, there are two key features of regular order:

1) Unlimited debate. It is well-known that under normal Senate rules, debate on certain motions cannot be stopped against the will of a Senator without a supermajority for cloture.

2) No restrictions on germaneness of amendments. The normal Senate rules (unlike the House) allow a Senator, in most situations, to offer an amendment on any topic at any time.

Q: Wait, non-germane amendments are allowed in the Senate?

A: Yes. This can often lead to debate on a bill ceasing to be about the bill itself; instead, the entire debate shifts to debate over an amendment. The minority is quick to take advantage of this — the democrats were famous for offering minimum-wage amendments to everything under the sun in the late 90’s Republican-controlled Senate. Just yesterday, the Blunt amendment regarding health care coverage of contraception was a non-germane amendment to the Highway reauthorization bill.

Q: So any Senator can offer any amendment on any topic at pretty much any time?

A: In theory, yes. And this is what makes the Senate so different from the House. You can take an entire bill  — one that the majority has no intention of ever bringing up, or even letting out of committee — and put it into an amendment and then attached to any piece of legislation. There are four major exceptions, in which amendments must be germane: appropriations bills; legislation raised under the Budget Act or other laws that specifically require germaneness; amendments made after cloture has been invoked; and, of course, when a unanimous consent agreement has been reached that restricts non-germane amendments.

Q: So Senators can just keep adding amendments to a bill, forever?

A: Yes, but not exactly. Absent a unanimous consent agreement and short of getting cloture, debate on any bill or amendment cannot be limited. However, the amendment process is still structured. That is, under regular order, only a certain amount of amendments are allowed at once, and they must be disposed of before further amendments can be offered. In addition, there is a limited number of opportunities to amend the same piece of text in a bill. So there’s no cap on the number of amendments, but you do have a process that both eventually runs out of room for amending, and also limits the number of amendments that can be pending at one time. And this is the key to filling the tree.

Q: Why is it called “filling the tree?” What’s the tree?

A: The amendment process in the Senate  is quite complicated. In order to simplify it, a set of charts have been developed by the parliamentarian to make it easier to understand when and what type of amendments may be offered. These charts are known as the “amendment trees,” due to their likeness to a tree trunk and branches. “Filling the tree” is the term for using up all the available amendment branches.

Q: How is the amendment process structured?

A: It depends on what form the underlying legislation comes to the floor, as well as what kind of amendment is first offered. I’ll use the most simple example here, a motion to insert text into a bill.  Here’s what the amendment tree looks like:

Under the Senate rules, when someone offers a 1st degree amendment to insert (“A” in the chart), no other 1st degree amendment to the bill are allowed until the pending amendment is disposed of. However, a 2nd degree amendment can be offered to amend the either the 1st degree amendment, either a perfecting amendment (“C”) or a substitute amendment (“B), or both if the substitute is offered first. (Generally speaking, a 2nd degree substitute amendment would replace the entire 1st degree amendment, while a 2nd degree perfecting amendments alters the text of the 1st degree amendment.)

Q: Huh?

A: It’s not as complicated as it sounds. Say we have a bill that “requires all school lunches to include fruit.” I offer a 1st degree amendment to insert “and vegetables.” Someone else then offers a 2nd degree substitute to my amendment that says “and whole grains,” which would have the effect if adopted of removing the “and vegetables” and replacing it with “and whole grains.” Finally, someone offers a 2nd degree perfecting amendment to my amendment that inserts “green” before “vegetables,” which would have the effect of making the amendment “and green vegetables.”  There you go. One important issue is the order of voting. In the case of a 1st degree amendment to insert, the vote order is 2nd degree perfecting, 2nd degree substitute, then 1st degree insert (as labeled 1,2,3 in the chart). And that has all sorts of strategic consequences. For instance, if the perfecting 2nd degree amendment that inserts “green” is popular, then the original 1st degree amendment (for just inserting “vegetables”) will never get a vote, since once it comes up for a vote, it will read “green vegetables.”

Q: But if there are limited amendments allowed, how come there are often dozens of amendments pending in the Senate?

A: Two reasons. First, that’s just the most simple amendment tree. In other scenarios (for instance, when the original 1st degree amendment is not an amendment to insert), you could have up to 11 1st and 2nd degree amendments pending. But more importantly, amendments can be laid aside in the Senate by unanimous consent, meaning that multiple first degree amendments to insert could be pending if everyone agrees to it. In fact, once you fill the tree, you have to make sure to object to any unanimous consent request to allow further 1st degree amendments, since that would of course make them available.

Q: So how do you fill the tree?

A: It’s easy: you just offer amendments on all possible branches, until no more amendments are allowed. At that point, no further amendments can be made until your amendments are disposed of.

Q: When do those amendments come to vote?

A: Unknown. Remember, there is unlimited debate in the Senate under regular order. Once the 2nd degree perfecting amendment is pending, no further amendments are allowed, and the vote on the 2nd degree perfecting amendment will not occur until debate has ended.

Q: But won’t those votes eventually happen?

A: Yes, but if you keep debating, the votes might not happen until after cloture is invoked on the underlying bill.

Q: Why does that matter?

A: Because, as we discussed above, after cloture is achieved, only germane amendments are allowed. So any non-germane amendment that a Senator had hoped to offer prior to cloture is no longer eligible.

Q: And therefore, the majority can limit the amendment process to germane amendments?

A: That’s right. And they can theoretically do more than that. Since there’s a finite amount of debate time allowed post-cloture, the majority could fill the tree, get cloture on the underlying bill, and then run out the clock post-cloture debating the existing amendments, never letting any other amendments be called up. And they could make all the amendments trivial, such that the vote on them doesn’t even matter, since it won’t change the underlying bill.

Q: But couldn’t minority Senators do the same thing, and fill the tree with friendly amendments?

A: No, for two reasons. First, amendments can be disposed of negatively prior to the end of debate; it’s called tabling. Anyone who gains the floor may make a motion to table an amendment, even if debate on the amendment is not complete. And the motion to table is itself non-debatable. Therefore, unpopular amendments can be quickly disposed of. This, of course, makes logical sense: there is good reason to allow extended debate on something the (numerical) majority is trying to pass; there’s not a lot of reason to allow extended debate on something a (numerical) majority opposes and doesn’t want to talk about.

Second, by practice and precedent, the majority leader has the first right of recognition on the Senate floor if multiple Senators are seeking recognition to offer amendments. Under Senate rules, a Senator who offers an amendment not only loses the floor after offering it, but also may not offer a 2nd degree amendment to the amendment until action has been taken on it. Now, the latter problem could be solved by asking for the yeas and nays (which doesn’t relinquish the floor), but it still requires gaining recognition multiple times in a row. Only the majority leader can realistically hope to achieve that, since he can  block any attempt by another Senator to do so (as could the minority leader, or bill managers, who have priority after the majority leader.)

Q: But why do that. Why not just table the non-germane amendments you are trying to keep out?

A: Three reasons. First, you might not have the votes. If the Senate is closely is divided, say your majority has a 52-48 advantage, then your caucus might be against a policy by a 49-3 margin, but unable to prevent passage of the amendment. So, just like in the House, you might prefer to never have to deal with it. You can use various bargaining tools to persuade your 3 supporters not to bring it up, and those same tools might work on the minority, but if they don’t then filling the tree might be your best way around having to include the amendment. And no, you can’t really filibuster the amendment, since that will stop your underlying bill dead in its tracks, which is probably just fine with the minority.

You also might be facing a killer amendment (also known as a “poison pill”). Killer amendments are simple: they are minority amendments that split the majority into two camps: one group that can’t possibly vote against the amendment, and a second group that can’t possibly vote for the underlying bill if the amendment is included. The minority then votes strategically: they vote with the first group to pass the amendment, and then they vote with the second group to kill the bill. Example: gun control. Say there are 48 Republicans, all who support a gun rights amendment. And say there are 15 Democrats who also support it, and must vote for it. But there are also 15 Democrats who can’t ever vote for a bill that includes strong gun rights. The GOP offers the amendment, it passes with 63 votes, and then the bill fails when the GOP aligns with the other 15 Democrats to vote against it. Filling the tree can theoretically avoid this situation.

The third reason is that, even if you have the votes to table an amendment, you might not want to take the vote. Minority amendments are often raised in an effort to put the majority on the record either supporting or opposing particular policies, and in many cases the majority would simply prefer to not go on the record, at least not in bill language chosen by the minority at a particular point in time.

Q: So how does this actually work, in practice?

A: Typically, it’s a move of last resort. The majority almost always prefers to call up bills and structure the debate and amendments under a unanimous consent agreement if they can get one that satisfies them. It’s just faster and more predictable. But short of that, the majority leader will get the bill on the floor (perhaps by securing a cloture vote on the motion to proceed), and then offer the necessary amendments, intervening between each to ask for the yeas and nays, until the tree is full. As an example, here’s Majority Leader Dole on May 3, 1996, filling a tree to avoid a non-germane amendment on the minimum wage [text is truncated by removing clerk readings,  UC’s to dispense with amendment readings, and seconds for the yeas and nays]:

There being no objection, the Senate proceeded to consider the bill.

Mr. DOLE. I send a substitute amendment to the desk and ask for its immediate consideration.

The PRESIDING OFFICER. The clerk will report.

The Senator from Kansas [Mr. Dole] proposes an amendment numbered 3952.

Mr. DOLE. Mr. President, I ask for the yeas and nays

The yeas and nays were ordered

Mr. DOLE. Mr. President, I send an amendment to the desk to the substitute.

The PRESIDING OFFICER. The clerk will report.

The Senator from Kansas [Mr. Dole] proposes an amendment numbered 3953 to amendment No. 3952.

Mr. DOLE. Mr. President, I ask for the yeas and nays.

The yeas and nays were ordered.

Mr. DOLE. I now send a second-degree amendment to the desk.

The PRESIDING OFFICER. The clerk will report.

The bill clerk read as follows:

The Senator from Kansas [Mr. Dole] proposes an amendment numbered 3954 to amendment No. 3953.

And the tree is full. No more amendments allowed. Dole then explained his actions:

Let me also indicate, it is necessary to go through this procedure of filling up the tree so we can take action on this bill without having nongermane amendments offered to it. I would indicate we have made a proposal to the Democratic leadership with reference to minimum wage. I have asked Senator Lott to try to resolve that with Senator Daschle and others … if we want to change general policy, I suggest we do it through the process of hearings in the appropriate committee.

Q: Are there any loopholes?

A: Yes. The minority could offer a motion to recommit the bill to a committee with instructions to report back forthwith, which would be functionally the equivalent of an amendment. In order to avoid that, the majority leader would need to himself make a motion to recommit, and then fill that motion’s tree (which includes a first degree amendment and a 2nd degree amendment to the amendment). Senator Dole did this in the example above.

Q: Is it common to fill the tree?

A: Not particularly, but it’s more common than it used to be. During the 111th Congress, the tactic was used about 15 times. In comparison, it was only used twice in the 105th Congress.

Q: How does the minority feel about the tree being filled?

A: Um, they don’t like it. Not at all.

Q: What recourse does the minority have to the tree being filled?

A: Procedurally, very little. Of course, the Senate is run on a lot more than procedure, and the minority can retaliate against perceived norm violations in all sorts of manners, ranging from withdrawal of support for some aspects of the bill at hand, to cross-issue retaliation, such as putting holds on other legislation or filibustering a nomination. And, of course, the minority can always escalate things by taking drastic actions, such as refusing to dispense with routine items by unanimous consent, such as the reading of amendments or even morning hour procedures such as the reading of yesterday’s journal. In effect, the recourse is largely political.

Q: Are there downsides to filling the tree.

A: Yes. When you shut off amendments, you shut off all amendments, including ones that your side might like to make. Now, that can be overcome in part by including those amendments as part of filling the tree, but that requires both forward knowledge as well as off-floor negotiation. And while that’s by no means impossible, it does highlight that filling the tree doesn’t simply preclude minority rights to amendments, it precludes everyone’s right to amendments.

Q: Are there other reasons to fill the tree besides avoiding non-germane amendments?

A: Sure. It can give the majority better control over the substance of amendments and the order in which they are voted upon. As noted above, the order of the amendment votes can alter which underlying ideas actually get a vote, as well as the pair-wise comparison that is being made in any given vote. Also, the majority can fill the tree as negotiating leverage if they are working with the minority on a UC agreement regarding debate or individual amendments.

Q: Is filling the tree a problem?

A: Only if you think it is. But if so, then yes. As I discussed yesterday and earlier in this post, any legislature needs to draw a balance between the ability of the majority to quickly move its preferred legislation, against the rights of the minority and the individual to extended debate and deliberative amending of legislation. In the end, these are both axiomatic sets of values, and your answer to the question of the propriety of filling the tree almost certainly depends on what underlying values you bring to the table. What filling the tree can accomplish — shutting off non-germane amendments, and in some cases all amendments — is hardly beyond the pale for a legislature; after all, the former is written right into the rules in the House, and the latter is accomplished in the House on a daily basis. But, while perfectly legitimate procedurally,  it certainly is not in the spirit of the traditional Senate rules.

Previous “Q&A” style posts

December 15, 2011 — Rule Layover Waivers in the House.

December 5, 2011 — How a bill becomes a law. Literally.

November 29, 2011 — The other caucuses. The ones in Congress.


Polarization and the filibuster

March 1, 2012

I recommend reading Ezra Klein’s two recent pieces on polarization and the filibuster, here and here, which focus on the important idea of how institutions filter preferences:

Snowe’s retirement will have many lamenting the endangered moderate and wondering how we can turn back the clock. But we can’t. About that, Snowe is right. Polarization is with us now and will be with us for the foreseeable future. The question is whether we will permit it to paralyze our political system and undermine our country or whether we will accept it and make the necessary accommodations.

Doing so would require taking on cherished, consensus-promoting features of the old system, like the filibuster. But in today’s girdlocked world, those features no longer promote consensus. They simply promote gridlock.

The filibuster, of course, is what permits a united minority to kill bills. As such, it radically increases the value of holding the opposition together in a “block everything” strategy, and thus radically increases the pressure on minority senators to resist the allure of compromise. In its absence, it would both be worth less for individual minority senators to resist compromise, and worth less for their leadership to pressure them to resist compromise. Thus, compromise would become easier.

It’s also important to note that the filibuster is mainly an issue in times when one party controls the House, the Senate, and the White House. That’s not an unknown state of affairs, obviously, but it is relatively rare: In the last 30 years, there have only been eight years of unified government — four for Democrats, and four for Republicans. That’s because, in our system, with its staggered elections, a party usually has to win a few subsequent elections to achieve unified control of the government. When they do that, it tends to mean they have an unusually strong mandate from the public.

So the question isn’t whether the majority party should be able to work its will all of the time, as is true in, say, the British system. It’s whether the majority party should be able to work its will during the few times when the public has decisively put it in charge of the government. And it seems to me that given the nature of our problems, it would be productive if the two parties had more opportunities to govern effectively and then be judged upon their results.

This is a fair argument, but it doesn’t hold water for me. Mostly because it’s at odds with itself: you can’t simultaneously achieve “more compromise’ and “more opportunities [for the parties] to govern effectively and then be judged upon their results.” Those are basically opposite: you either have a majoritiarian system in which the minority is effectively shut out from policy making, or you have a system in which minority participation is required to pass policy, and compromise is therefore necessary. Given the realities of polarization, you really can’t have both.

Four related general points, not all of them directed at Ezra’s columns:

1. This concern — the majoritarian one — is much wider than the filibuster. The American system is just chock full of anti-majoritarian features. That is, if the comparison is to the British system or some other single-chamber sovereign legislature that attempts to singularly replicate the will of the people, the filibuster is really far down the list of anti-majoritarian features. Here’s a short list: bicameralism, staggered Senate elections, the independent Presidency, the veto, the supermajority requirements to ratify treaties, the committee system, the bar on non-germane amendments in the House, constitutional federalism, and so on. It’s endless.

Our system is not majoritarian. On purpose. And there’s nothing inherently wrong with that. Or, to put it better, it’s not obvious to me that making a system more majoritarian necessarily improves the overall legislative output or the overall health or happiness of a limited-government republic. There are plenty of things in life that absolutely shouldn’t be majoritarian — like criminal jury deliberations — and the burden of proof, I think, is on those who believe our federal government would be better served with fewer anti-majoritarian institutional features. Simply asserting — as many people reflexively do — is definitely not good enough.

Which I think Ezra agrees with. But I also don’t think it’s good enough to point out how one exogenous change (polarization) is amplified by an existing anti-majoritarian institutional feature (filibuster). That’s true for almost all exogenous changes and all institutional rules. Things change. The practice of politics is dynamic, both across institutions and over time. Within the broad understanding of representative democracy, there’s virtually no arrangement of institutions that, ex ante, is superior to any other. It depends what your axiomatic priorities are. And so for each argument you make against the anti-majoritarian features, there’s pretty much an equivalent argument in favor of them. It reduces, usually, to a clash of axiomatic values.

Still, there are consequences to the majoritarian impulse in the contemporary political environment. One important one is that…

2. The filibuster is under attack, I think, for quite the wrong reasons. I’m of the mind that the filibuster is probably the most overrated of all the anti-majoritarian devices. Not because it’s not important or consequential, but because many commentators view it as the difference between hell and utopia. But as Ezra notes, it’s often not even a huge systemic factor unless there is unified control of the government. Does it alter policy outcomes? Of course. Are there places I’d like to see it reformed? Absolutely (judicial nominations). Is it more important than the veto, or bicameralism, or the staggered terms in the Senate, as far as anti-majoritarianism goes? Color me skeptical.

The reason the filibuster gets so much attention is threefold: first, high visibility. It’s pretty tough to see how the committee system works it’s anti-majoritarian ways, but the filibuster is often on bright display. Now, that’s not always the case — tons of legislation is buried by the filibuster before it ever gets to the floor, making filibusters ridiculously hard to count up — but it’s definitely in the limelight a disproportionate amount of time. Second, the filibuster as currently practiced is new. That is, plenty of people can easily remember when lots of legislation passed the Senate that would, under today’s conditions, be killed by a filibuster. Finally, the filibuster is, relatively speaking, easy to change. Unlike bicameralism or the veto, here is an anti-majoritarian institutions that could theoretically be removed by a few quick votes in the Senate.

But all of this sums to looking for your lost keys under the street lamp. Regardless of the fate of the filibuster, the policy outputs of our system are not going to respond to bare majoritarian wishes. Period. If you’d like them to be somewhat more responsive to bare majoritarian wishes, then by all means promote the ending of the filibuster. But I don’t think it’s fair to say to that ending the filibuster would somehow have massive consequence for the anti-majoritarian character of the institutional structure. We had policy gridlock at many points in the (pre 60-vote Senate) 80’s and, conversely, a sizeable amount of important legislation has been passed in the last 10 years, despite the Senate rarely having an effective 60-vote coalition. And so while I understand that the filibuster changes policy outputs, I’m less inclined to believe it actually regularly stops major policy dead in its tracks. At any rate, even total reform is unlikely to result in huge consequential policy changes. And it certainly wouldn’t make our system more just in any sort of normative sense. In fact, it might just make it less just, because…

3. The conventional non-filibuster counterfactual is pretty weak. I’ve always thought that there’s a strange nostalgia for the Washington politics of the 60’s among those who dislike the filibuster and/or polarization. It doesn’t really wash. Yes, on civil rights the northern Democrats and the Republicans teamed up and the bill was written in the minority leaders’ office and, in general, the parties weren’t quite so ready to vilify each other because there were conservative Democrats and liberal Republicans and a fair number of cross-partisan coalitions. But if the animosity wasn’t so partisan, it was certainly just as real. And I can’t imagine contemporary Democrats would be all the happier if they could just get a dozen of the more conservative Republicans to switch party labels.

But the main point here is that when you look back a generation or two and see (1) less polarization and (2) less use of the filibuster, it doesn’t at all follow that if you institutionally replicate the second point (by ending the filibuster), you somehow move closer to the first. Now, I know Ezra wasn’t exactly asserting that, but I think a lot of people seem to believe it — that if we just get rid of the filibuster, we can achieve the sort of bipartisanship of yesterday. Nonsense. What you will achieve, at best,  is the party politics 1870s’. And while that’s not something that bothers me — I’m fine with strong responsible parties — it does fly in the face of what a lot of people think of when they think of killing the filibuster. Things like deliberation and compromise.

I just don’t see it. Killing the filibuster in its entirety in the contemporary climate would almost inexorably lead to a foreclosure on the ability to raise amendments on the floor, in effect removing the one clearly deliberative aspect of the Senate. Generally speaking (and tree-filling aside), amendments cannot be restricted on the Senate floor without unanimous consent; anyone who thinks they have a better idea can get a vote on that idea to see if the majority agrees with them. In effect, no one can get their own idea passed into law without the possibility of a better idea replacing it. This is the essence of the Senate at its best — there’s no way to lock the place down  and ram through your ideas, if the majority (numerical, not partisan) wants a different idea.

But wait, in what radical legislature would they allow the opposite — bills getting passed into law that a (numerical) majority wants to — but can’t — further amend with better ideas? Oh wait, that’s the United States House of Representatives! In the House, the (partisan) majority can write restrictive rules of debate for individual bills, rules which state what amendments are and are not allowed to be voted on. The majority leadership routinely uses special rules, held together by partisanship and punishment for dissenters, to eliminate the possibility of popular amendments altering the leadership’s ideas in any way.

This isn’t an occasional thing, either — the vast, vast majority of important legislation goes through the House under a special rule, and a large percentage of the time there is a plausible amendment out there which would have majority support in the chamber, but cannot be proposed because the leadership has excluded it from the special rule, and has held together the majority party on the special rule vote through carrot and stick tactics with the backbenchers. And this has been a recent development. Even as recently as 30 years ago, most important bills came to the floor under open rules, or at least allowed a wide variety of amendments. Now it is virtually zero.

The true tension in all of this is that you can’t have it both ways. You either have the House — where the leadership of a partisan majority can effectively lock out legislation that has majority support — or you have the Senate, where the minority can block legislation that has majority support. Threading the needle requires either strangely weak parties or unrealistically benevolent leaders. But my bottom line, one that you don’t hear too often outside the Capitol, is that we probably don’t want two chambers that suffer from the same problem, and that having iron-fisted leadership rule in the House and minority power in the Senate is preferable to having two of either, and probably better than having the converse. Scratch that, definitely better than having the converse.

Kill the filibuster and get more compromise? It’s just not a likely result.

4. A majoritarian Senate might not even be a normative improvement. I’ve said it before, but at the micro-level, the main problem with filibuster reform is that you aren’t unleashing majoritarianism in the Senate as we normally think of it in the contemporary world, you are unleashing majoritarianism of the states, which may or may not correspond to popular majoritarianism at any one time. People constantly bemoan the state of the world when the Senate rejects an idea that seems popular in public opinion. But one simple explanation is often forgotten: the Senate is malapportioned!

Yes, everyone “knows” that, but a lot of times people seem to overlook one of the basic consequences: a Senate vote will often not match aggregate public opinion, even if every single Senator is explicitly following the public opinion of his/her constituents. Unlike the House, which at least theoretically is weighted like a public opinion poll, the structure of the Senate makes no pretense to being a reflection of national public opinion. (Of course, the House can suffer the same problem; any aggregation of district preferences — no matter how perfectly apportioned — could stray from national preferences. But it’s much more pronounced in the Senate).

Now, you can ask Senators to take a Burkean trustee view of representation and vote the national good. That may or may not be warranted in any individual case. But I think it’s a fallacy to imply in such situations that at least some Senators must be inherently doing something against the wishes of their constituents if national public opinion goes one way and the Senate goes another. The institution, for better or worse, is simply not built that way. And because it’s not built that way, we have to be careful about adjusting Senate rules in search of majoritarianism. For it isn’t there to be found, in any real sense. Any bare Senate majority might reflect an underlying 40% of the nation, or an underlying 60%. And that would be just as true post-reform as it is now. It’s a reminder that the Senate can be just as anti-majoritarian without the filibuster as it is with it. For it is not, and was not meant to be, a popular institution.

And look, I’m not a huge fan of the filibuster. I think it allows for unhelpful ambiguity in Senator position taking, unnecessarily slows things down, and gives perhaps too much leverage into individuals. But all of that sums to much less than the whole of the contemporary complaint. A federal government without the filibuster is just a government with one less anti-majoritarian feature. For every policy the filibuster buried, there are probably 50 that were buried by non-filibuster anti-majoritarian features of the system. And for every policy you like that got buried by the filibuster, there’s probably one you don’t like that saw the same fate.

Now, I don’t want to say this is all much ado about nothing. The filibuster shapes policy, and in some areas (like judicial nominations) it is having a serious impact. But I think it gets way more attention than it deserves. The filibuster is far from the only institutional veto player, it is usually not the decisive institutional veto player, and its reform will come with some costs. Reformers should correspondingly temper their expectations about the world after success.


Beating a dead (dark) horse: Everyone on the bolt bus

February 28, 2012

In response to my post from yesterday about brokered conventions and dark horses, Jonathan Bernstein makes the case that I’m underestimating the possibility of a factional bolt if the (highly unlikely) deadlock came to pass:

I’m going to stick up for my argument a bit. The thing is: Matt’s objections are also objections to getting to a deadlocked convention in the first place. So if they really reach Tampa with no resolution, then that means that the party didn’t unify around one candidate during the primaries and caucuses, and they didn’t work something out during the two months between Utah and Tampa, and they didn’t work out anything in the first days of the convention. If all that happens, then either the rules and norms of the game are somehow getting in the way of cooperation (contrary to what I and some others believe, which is that the rules and norms of the game facilitate cooperation), or that there really is some sort of serious schism either predating the nomination battle or caused by it.

So basically, if we grant the implausible premise of a deadlocked convention…I’m going to say that all bets are off, and lots of chaotic outcomes are very possible. Including the possibility that some of the actors involved may not behave very rationally at all. For two reasons: one is the emotions of the moment, but another is that a lot of the delegates are probably not very sophisticated or experienced political actors at all.

You should take anything Bernstein says very seriously (I certainly do), and the point he makes here is a good one. I agree that the possibility of chaos increases dramatically if a delegate deadlock from the primary season is not settled prior to the 1st ballot vote at the convention. That’s definitely a signal (beyond simply the voters indecision) that the party itself is seriously split on the nomination decision. And I think it’s also a really good point that emotion can lead to irrational behavior among delegates, and that this can precipitate a bolt. Hell, that’s basically the story of Charleston, 1860: the southerners worked themselves into a frenzy in the convention hall after they lost the platform fight over Dred and the territories, and then walked out basically on impulse. Once they had bolted, however, most of them sat around Charleston either sulking or giving fiery speeches, but mostly wondering when they would be invited back to join the convention. Emotional and irrational indeed.

So I would say Jon’s argument convinces me that a bolt is at least plausible under a deadlock. But I still think there are serious structural forces working against it, even if we did get to the 1st ballot undecided. First, I think there’s a big difference between a party being closely divided and one being deeply divided. The Democrats in 1860 were deeply divided, but not really closely divided: the schism over slavery was (obviously) about to come to physical sectional conflict, but within the Democratic convention (where at the time delegates were assigned by state population proportion, regardless of party strength within the state), it wasn’t really closely: the northern view basically predominated. In the GOP right now, we kind of have the reverse: a deadlock would show a very closely divided party — perhaps split almost exactly 50/50 between Santorum and Romney — but it doesn’t seem to me to be a deep division. It’s more like Hillary and Obama. Sure, each faction has its preferred candidate, but it’s not like either faction would consider moving their support to the Democrats given the nomination of their non-preferred candidate. In 1860, that was exactly the situation.

Second, I don’t think a split aggregate judgement of the voters necessarily implies a schism among delegates, or among the competing candidates. The voters aren’t purposely choosing schism; they are only acting collectively by aggregation, over a series of months. The delegates, on the other hand, would have to take a dramatic step while everyone was watching in order to create a bolt. It would not simply be a ratification of the voter indecision; it would itself be a wholly new decision. Now, part of this is mitigated by Jonathan’s point: if the party can’t get this together between the end of the voting and the start of the convention, that’s evidence that something is wrong. But it’s still not the positive step of fracturing the party. That seems to me to be another purposeful action, at another level of seriousness, in and of itself. And I don’t think it would occur until after many ballots had been taken. In fact, I think the possibility of a dark horse — itself a radical longshot and a completely untenable idea in practice — is probably more likely than a bolt. But maybe I’m just agreeing with Bernstein now: this is so highly unlikely at two levels (first the deadlock, second the inability to solve the deadlock prior to, or subsequent to,  the first ballot), that once those two unlikely scenarios have come to pass, a bolt becomes an actual possibility.

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