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.
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.
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.
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.
[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]
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.
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…
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?
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.
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|
|Energy and Water (9)||[P]||[P]||[P]||[P]||25||34||35||45||48|
|State / Foreign-Ops (8)||[P]||[P]||9||12||15||26||29||33|
|Military Construction (8)||[P]||[P]||40||41||53||59||62||63|
|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.
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:
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.
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.
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.
[updated; see below]
Greetings from Austin, TX! For those of you who missed it, last time I was here (September) I took a fabulous tour of the state capitol building, which inspired this post on legislative security, or the lack thereof. Austin is, of course, named for Stephen F. Austin, who managed to make it into one of my GOP Candidate Venn Diagrams back in December. I’m sure by Wednesday my thoughts will have marinated in the warm Texas air long enough to inspire further Texas-blogging. But it hasn’t happened yet. Or maybe you’re just lucky that I’m resisting the urge to do some air-travel complaint-blogging (is there any sharper contrast than taking off in idyllic DCA and then having a layover in Dallas-Ft. Worth?). I did cross paths with a weary-looking Speaker Gingrich at DCA around 7am, but aside from reporting that he got no special treatment at security, there’s not much there.
What’s actually on my mind is all the talk about deadlocked conventions, specifically the prospect of the upcoming GOP convention being so. This seems to be all the rage these days on the blogs. Here’s Sullivan. Here’s Ezra. Here’s Mickey. Here’s Jamelle. Here’s Nate. Here’s Sean Trende. Etc. Etc. I should start by saying that Jonathan Bernstein and Josh Putnam have already done the yoeman’s work of bringing some solid political science analysis to the table, and getting the odds and required conditions of a deadlocked convention in proper perspective (see Jonathan’s writing here on the basic idea, here on the odds, here talking different definitions, here talking some nuts and bolts if the unthinkable came to pass, today talking about it again, search his blog for more; Josh’s writing here and then here on the myth of proportionality in the GOP rules changes; here talking about how the calendar has ruled out a late “straight” entry; search his blog for more). The bottom line is that a deadlock is (1) highly unlikely; (2) isn’t somehow magically more possible due to the GOP primary rules changes this year; and (3) also should not be referred to as a “brokered” convention, because the so-called brokers of yesterday simply do not have control of the delegates in the modern environment.
What I’d add to all of this is three things:
1. People are confusing the related historical ideas of a “brokered” convention and a “dark horse” candidate. These are two separate ideas, and they should be kept separate for analytical purposes. A “brokered” convention in the 19th century was one in which no candidate had enough delegates committed coming into the convention to simply take the nomination on the first ballot without any bargaining. Since the primaries weren’t universal prior to 1972, this often ended up being the case, especially on the Democratic side, where the 2/3 rule was in force between 1832 and 1936, requiring a candidate to get 2/3 of the delegates for nomination. In any case, it was often the situation in the 19th century that the convention opened with half a dozen or more candidates, each with some support among the various state bosses who controlled the delegates, but without anyone even close to majority support. The nomination would be settled after the campaigns bargained for the support of the brokers’ delegates, often by making policy promises or horse-trading patronage or other goodies.
This, however, has nothing to do with the idea of a dark horse. A dark horse was a nominee who emerged victorious at a convention despite have little or no delegate support coming in, and perhaps not even being on the radar screen as a candidate prior to the convention. The two most famous dark horse candidates are probably Franklin Pierce in 1852 and William Jennings Bryan in 1896. The ’52 Democratic convention opened with four major candidates — Douglas, Cass, Marcy, and Buchanan — but on the first 34 ballots, none of them could get a bare majority, nevermind the 2/3 necessary to win. On the 35th ballot, Pierce was introduced as a compromise candidate, and although he never got more than about 1/6 of the votes on the next 14 ballots, a deal was struck prior the 49th ballot and he was nominated almost unanimously. Bryan came into the 1896 convention unmentioned among about 8 possible candidates, but was so inspiring to the Silver faction during his cross of gold speech that he quickly became a contender, and won on the 5th ballot. The point is that a dark horse is the result when the brokering process completely stalls or when some unforseen event dramatically alters the convention; it’s not the essence of the brokering process itself. You could have a brokered convention in the 19th century without a dark horse (they were more or less routine); conversely, you could theoretically have a dark horse that emerged victoriously on the first ballot (although it never happened).
These two ideas are being conflated right now in regard to the GOP convention deadlock talk. A lot of people seem to think that a deadlock heading into the convention somehow strongly suggests a dark horse. But if the situation were to arise that no one had enough delegates to win on the first ballot coming into the convention, the initial bargaining would probably not include dark horse candidates, such as Jeb Bush or John Thune or Chris Christie or Mitch Daniels or Sarah Palin or whoever, but instead would involve bargaining between delegate groups among the existing candidates, in an attempt to resolve the deadlock in favor of one of them. Much like the 19th century, a turn toward a dark horse would probably only occur after the initial bargaining yielded no fruit. Now, this is not airtight: as Bernstein and others have pointed out, without the party bosses who could effectively bind and deliver voting blocs, who the hell knows how such bargaining would be organized. But I have a hunch that in the most likely of the unlikely situations — one in which at least one candidate is very close to having enough delegates — it would not be hard for him to bargain his way to an additional 100 or 200 if that’s what it took. And so I think the upshot is that those looking to deny Romney (or whoever) a bare majority going in are unlikely to see it result in a dark horse; much more likely is that Romney buys up the Ron Paul delegates with some platform or patronage or other promises, and takes the nomination.
2. Dark horse candidates are much, much better suited to the 19th century electoral structure. This is another reason the GOP would be unlikely to move toward a dark horse: the institutional structure of the modern presidential election is completely inhospitable to such a candidate, and the parties know it. And since the parties want to win, they won’t do it. Here’s the problem: in the 19th century, the party was the chief campaign organ; whoever the nominee was for President, they were simply plugged — more or less as a name on a sign — into the electoral apparatus of the party. The candidate didn’t even campaign; he usually just went and sat on his front porch, wrote a few letters about his policy positions (mostly of the type ”I am a regular Whig/Democrat in all respects”), and stayed the hell out of things. The party did the campaigning: they raised the money; they had the federated network of operatives, newspapers, volunteers, and printers; they conducted the parades and speaking tours through their party men and elected federal, state, and local officials; and they set the strategy in each state for promoting their presidential candidate within the context of their entire state ticket. The candidate was important because of who he was, but was not important in respect to what he could do between August and November.
Totally different now. The candidate now runs the electoral machine: raising the money, coordinating the volunteers, doing the polling, organizing the campaign themes, and everything else. He also personally campaigns and takes part in the general election debates. In other words, he is indispensable to the electoral effort of the party between August and November. And so, as many people have pointed out, a dark horse candidate has at least two strikes against him: first, he has not been vetted in the face of a national primary campaign. As someone said last week on Twitter, if Rick Perry hadn’t run in the primaries and been vetted out of the race, he would probably be one of the top dark horse names being mentioned right now. Think about what that line of thinking means to GOP operatives pondering a dark horse. Yikes! On the other hand, Perry is miles in front of a real dark horse, and this is point two: the financial and organziational requirements of a general election campaign seem fundamentally predicated on months, if not years, of advanced preparation. You need national donor and volunteer lists, boots on the ground in every state, media connections, deep polling and social analysis of voters, and so on. No politician who hasn’t been running for President has anything remotely close to this. Even if Jeb Bush had complete access to his brother’s 4-year old organization, it would leave him so far behind as to probably destroy any value-added (and more) that he could bring by not being one of the (evidently) unliked existing candidates.
3. I don’t see factional bolting as a realistic possibility, even contingent on a deadlocked convention. Bernstein raised an interesting possibility that cuts between the two ideas mentioned above: a factional bolting at the convention. In this idea, there would be no successful bargaining between the major candidates, but there would be no dark horse who emerges either. Instead, the convention might fracture, resulting in two conventions that nominate two separate candidates, creating not only an utter mess for the party, but also a legal disaster: unlike the famous Democratic party fracture in 1860, such an event today would require state by state judicial intervention, since the states control the ballot lines and would need to adjudicate who was the rightful holder of the GOP ballot line. A nightmare of intense proportion, and not for just the Republican Party: if one of the major parties was effectively cut off from nationally competing under one candidate, then real choice for voters is short-circuited, and that’s not good for anyone in the short-term.
I don’t see this as a possibility, even conditional on a deadlocked convention. The pro-bolt thinking goes something like this: the social conservatives have their candidate (Santorum), the business conservatives have theirs (Romney), and the libertarians have theirs (Paul), and we’ve come to the point where these groups will no longer play nice under the GOP tent. I don’t buy it. While there is probably intense personal loyalty among committed delegates (the campaigns choose them), I don’t see the schism required in the party to support bolting. When bolting has occurred in the past, it has almost always occurred over a single burning issue — the Southerners walking out of the Democratic convention in 1860 (slavery; or more specifically the defeat of platform support for Dred and a federal slave code for the territories) or 1948 (segregation). And in both of those cases, there’s a fair amount of evidence that the bolters were acting at least plausibly rationally, in an attempt to push the election into the House of Representatives. A bolt at the 2012 GOP convention would plainly not accomplish this, as there would be no visible way for the bolting candidate to get on the ballots.
And so the only reason to bolt would be in an attempt to wrestle the nomination away from the other candidates and for oneself. But this is obviously a high-risk strategy, and one that would probably be net-negative for the successful candidate. Now, net negative could be arguably better than not having the nomination, but party actors — particularly those whose job depends on winning the election — would be uniformly against it. As would the national press, I presume. And therefore, I find it highly unlikely that a candidate would want to try it; to be seen as the first bolter would almost certainly seal one’s fate to losing the election, regardless of the legal fallout as to who got the nomination.
Ok, I cannot believe I just wrote 2000+ words about something that not only isn’t going to happen, but that I’ve been laughing about all the writing that has been done about it already. But I guess that only proves the maxim: political junkies love things like brokered conventions, House-decided presidential elections, and electoral college ties, even if the results of those things actually happening would be almost certainly not good for our republic.
Update (2/28; 2:45pm): Jonathan Bernstein has posted a response to all this that I highly recommend reading. It’s always flattering to have people you respect critique your writing, and that’s certainly how I feel about Jon. I alos have a subsequent response to Bernstein’s thoughts here.
I’m headed down to Austin, TX on business this morning for the next bunch of days. That means blogging could be lighter. Or heavier. We’ll see.
Some stuff I enjoyed reading from this week:
1. John Sides had a two-part series — here, and then responses to criticism here — on the obsession with negative political ads and the reality of their effectiveness. I suspect the Daisy ad from the ’64 election is one of the most overrated campaign messages of all time. As if that is what sunk Goldwaterism.
2. Seth Masket has normed the data by votes on that excellent David Gilson chart of spending in presidential elections. I’d still like to see something that took GDP or GDP/capita into account, but it’s one of the more fascinating “in one chart” links I’ve seen in a while.
3. Tom Pepinksy reviews a new paper on language and economic behavior. I’m not sure there’s more than a handful of people in America besides Tom who have the precise background — linguistics and political economy — necessary to give you that sort of analysis.
4. John Bernstein had a nice quick hit knocking down the idea that Ross Perot had a substantive impact on 90′s budget politics. I’m not quite as sure that there was no effect — the man did spend millions of dollars on a campaign — but his point is dead-on relevant regardless: Ross Perot was not much of a policy factor, ever.
5. The guy who invented pinball — yes, that pinball — died … last Sunday! He was 100.
6. Ta-Nehisi Coates on good writing, and the authenticity of Ulysses S. Grant’s memoirs. I discovered Grant’s memoirs one morning while cruising the stacks in Sterling Library at Yale. Destroyed an entire day (not that it’s hard to do that in graduate school, but) sitting there reading them. Absolutely wonderful writing.
7. Of course I agree with Matt Yglesias on the absurd food truck bans in many cities. Having lived in two sweet food truck towns — Albany, NY and New Haven, CT — I can personally vouch for their awesomeness.
8. I’m normatively against affirmative action, but only mildly; it’s within the nexus of my cost-of good-intentions objection to liberalism. I have, however, been saying for over a decade that, as a positive matter, it will fall once it starts to pit minorities against each other. To that end, I agree pretty much entirely with Ilya Somin’s predictions about the Fisher v. Texas case.
9. I’m bored with most of the writing about contraception. As a libertarian, Connor Friedersdorf’s tweets yesterday struck a cord with me — that we should subsidize birth control for the poor, and make it over the counter, but it doesn’t seem like a health insurance company not offering it is somehow a denial of “access” — but mostly I’m just resigned to the idea that taking health care public means these fights are going to be the norm. And that liberals need to be very careful: requirements that things be covered can quickly be converted into requirements that things not be covered.
10. Kevin Drum on the Death Star. One of the best first sentences I’ve read in a long time. “There’s been a lot of loose talk about the Death Star lately.” It’s great because it’s so true. Of course, my contention would be that there will never be a piece of Star Wars writing that tops this.
People always say that it’s tough for Senators to run for President because they have all these roll call votes lying around from the past that opponents can pick on. But the actual mechanism that makes all these votes problematic usually goes unexplained; it’s not clear, on the surface, why having taken a ton of votes automatically makes you vulnerable as a candidate. I think it boils down to four issues, none of which are mutually exclusive:
1. You voted for something that turned out to be quite unpopular. This is pretty self-explanatory. If you voted for the Iraq war or the TARP bill or the Kansas-Nebraska Act, and the national primary or general election electorate isn’t too keen on those things anymore, you will be questioned about your vote.
2. Your constituency in the legislature might not resemble your constituency for national office. This is more or less every candidate’s problem when running for president. There are very few districts or states that perfectly reflect the national constituency. And there are none once you factor in the number of state-specific provincial issues that you might vote on.
3. Legislating fundamentally requires compromise. This comes into play in two different ways. First, there are votes on bills that have multiple provisions in them. Voting against a bill simply because it has one thing in it that you don’t like means that, more or less, you will be voting no on pretty much everything. So legislators quite intuitively weigh the overall value of a bill. Second, the construction of any given bill usually involves compromises in order to secure passage. And therefore your choice often boils down to, on the one hand, a bill you like but don’t love or, on the other hand, no bill at all.
4. Maximizing your personal power and your constituency’s benefits means often trading your vote. I’ve written about this a few time before (see here, and here, and here), but the basic idea is that all legislators have three primary goals: re-election, increasing their own power within the legislature, and making good public policy. Sometimes — especially when the three goals align together — it’s easy. You think policy X is a great idea, your constituents love it, and your party leadership not only loves it too, but they want you to lead the political fight for it, and they will reward you down the road for your leadership on the issue. Couldn’t be any easier. When it becomes interesting, however, is is when the three goals come into conflict: when increasing your power in the chamber means casting votes that hurt your re-election chances; when making good public policy for your constituents goes against their own perception of their interests (and thus your re-election chances); and when increasing your power in the chamber necessitates accepting bad public policy. It’s even harder when you factor in the endogeneity — sacrificing your constituents’ wants for more internal power may ultimately benefit your constituents down the road.
I say all this because last night’s debate illuminated this problem quite clearly, as Rick Santorum was forced to reconcile his voting record in the Senate. Here he is defending his vote on NCLB:
I supported No Child Left Behind. I supported it. It was the principal priority of President Bush to try to take on a failing education system and try to impose some sort of testing regime that would be able to quantify how well we’re doing with respect to education. I have to admit, I voted for that. It was against the principles I believed in, but, you know, when you’re part of the team, sometimes you take one for the team, for the leader, and I made a mistake. You know, politics is a team sport, folks. And sometimes you’ve got to rally together and do something. And in this case, you know, I thought testing was — and finding out how bad the problem was wasn’t a bad idea. What was a bad idea was all the money that was put out there, and that, in fact, was a huge problem. I admit the mistake and I will not make that mistake again. You have someone who is committed.
There’s the vote trade. And here he is defending his vote on an appropriations bill that had Title X funding in it:
As Congressman Paul knows, I opposed Title X funding. I’ve always opposed Title X funding, but it’s included in a large appropriation bill that includes a whole host of other things, including the funding for the National Institutes of Health, the funding for Health and Human Services and a whole bunch of other departments. It’s a multi-billion-dollar bill … [s]o while, yes, I — I admit I voted for large appropriation bills and there were things in there I didn’t like, things in there I did.
There’s the compromise. Here he is discussing entitlement reform and the wishes of Pennsylvanians:
I was a leader, as you know, on taking on tough issues, which is the entitlement programs, not just welfare reform, but I also worked on Medicare reform and Medicaid reform and also was a leader on trying to deal with Social Security. And I did that not representing one of the most conservative districts in the state of Texas but in the state of Pennsylvania, with the second largest per capita population of seniors in the country. And I can tell you those seniors really cared about Social Security. Why? Because all my rich seniors moved to Florida and Arizona. And what’s left — what’s left in Pennsylvania is folks who relied on Social Security … [I] had a strong record in a tough state to be a conservative.
There’s the different constituency. And here he is again explaining his NCLB vote:
Look, I think we’ve all had votes that I look back on I — I wish I wouldn’t have voted — No Child Left Behind, you’re right, it lead to education spending.
And there’s the mistake! Four for four, Senator.
Now, I’m not saying it was a good idea for Santorum to be this candid about his voting record; as Jon Bernstein said in his debate wrap, Santorum must have missed the day at candidate camp when they taught people how to duck tough questions. It’s abundantly clear, for whatever reason, that the electorate doesn’t usually like answers such as, “I made the best decision possible given the available information at the time,” or “You may not like the results, but it was the right thing to do and I make no apologies for my vote,” regardless of whether those answers are true or reasonable. And while it’s not unreasonable to cite the idea that you once represented constituency A and so you voted for X, but now you are seeking to represent constituency B so you are in favor of Y, voters aren’t too fond of that argument. And compromise is often disdained as well; it’s very difficult to explain to voters the sum value of a bill, if they instead want to know why you voted for the ACA even after the Stupak amendment was removed.
What’s more interesting to me is why voters don’t like hearing these explanations for legislative voting records — after all, none of them are unreasonable, and only the “I made a mistake” one fundamentally puts a candidate in a bad light. You’d think that being a “team player” might be a benefit to someone in a party primary, but it just doesn’t seem to wash like that. Same thing with being responsive to a constituency. I guess what I mean is that it’s not obvious that voters should be turned off by these sorts of explanations of voting record.
Three things intuitively come to mind: first, voters may simply prefer to be uninformed romantics about politics; perhaps they want to believe that sticking to the purest policy motivations can achieve legislative success or best represent a district. In other words, they don’t want to believe in strategic political behavior. At least not relatively speaking; perhaps they are willing to believe that if one candidate is telling them the dirty truth about the sausage-making and the other is singing as white as the pure driven snow, that somehow not everyone is making sausage.
Second, I suppose voters may care about conviction and depth of belief, especially when voting for President in a primary. Even if strategic voting and constant compromise is the way to maximize your representation in a legislature, it makes you sound like you are a delegate-model automaton. If people believe that leadership (however defined) is required for the presidency, and that strategic legislative behavior is negatively associated with the conviction that may be required for executive leadership, then there’s certainly a connection there. This would go along with thinking that legislators have trouble winning the presidency because voters do not trust legislative experience or success as a good measure of executive potential. They are, after all, two very different jobs.
Finally, I think it’s possible that the information gap is to blame. Perhaps voters just don’t know that much about how a legislature works (probably true), don’t really care about taking the time to learn how it works for the purpose of voting in a presidential election (definitely true), and therefore see all defenses of a voting record as one large lump of equivocating. In other words, voters prefer a simple world, not for the romantic reasons outlined above, but because it’s too costly to get into a game of comparative evaluation of equivocations, and therefore anytime a politician starts explaining, they are going to evaluate the claim at a very basic level: is this bullshit or not. And, under this theory, the mechanisms of the legislature qualify as bullshit damn nearly all of the time.
So don’t worry ’bout tomorrow, take it today;
Forget about the check, we’ll get hell to pay.
—AC/DC, from Back in Black (1980)
Once again, my wife is going out with some friends tonight, and assuming that the girls go to sleep fine, at home it’s just going to be me, the GOP debate, and my liquor cabinet. I don’t know any drinks that are particular to Arizona, but it only stands to reason that tequila should be involved. I have some Patron Silver (Tequila white lightnin’!), so maybe a margarita made with fresh-squeezed lime juice and Cointreau instead of triple sec.
And, as always, I presume the executive power questions will have me ready to go straight to the bottle with a Modern Whig: chug bourbon, smash bottle, use glass to slit wrists. Cheers!
At any rate, I’m going to live-tweet this thing at @MattGlassman312, so check it out. And enjoy the debate.
And anyone local to me, c’mon over. I’ve got plenty of liquor.
Back when I was in graduate school, my (dorky) friends and I had an impromptu contest: everyone had to create an urban legend based on their dissertation research, and whoever could spread it the farthest on the Internet in 1 month won. Since my thesis was about statehood politics, I came up with the following: a DC statehood bill passed the House in 1984, but stalled in the Senate because a Reconstruction-era Supreme Court ruling requires that all U.S. flags flown by the federal government or a state government be up-to-date, and thus DC statehood would have meant the tremendous cost of going back to the moon to update the 50-star flags we planted there. I always kinda liked that — it’s stupid enough to make you laugh, but just plausible enough to possibly make you think twice.
And while that’s just some throwaway humor, I have always thought the connection between statehood and the flag was somehow important, enough so that the original title of my dissertation — and the title I’ll probably use if it ever becomes a book — was Sewing New Stars. The U.S. flag almost perfectly reflects the dual-sovereignty of our federal system: the states are constituitive of the whole, but the whole is far greater than the sum of its parts; and when we add a new semi-sovereign state to the union, the flag itself changes, a lingering physically manifestation of a fundamental political action within the federal union. And the post 1818-flag — in which the number of stripes is fixed at 13 — reflects a wonderful understanding of the union: new stars can be added to the union, but those new stars, rather than fundamentally altering the union, instead simply become part of it. The union itself, like the stripes, is perpetual and unchanging.
And yet that’s just so much romantic hogwash.
The more important connection between the flag and statehood —and I say this only three-quarters jokingly — is political, as in raw political power. As in currently-untapped raw political power. Let me explain.
One of the animating principles of democratic theory — whether your favorite political theorist is James Madison or Barry Weingast — is that human beings are self-interested, and that self-interest will motivate their political choices. Furthermore, the working assumption for at least the last few centuries is that the primary self-interest for most people will be economic. Which is to say, most people will make their political choices based primarily on the impact those choices will have on their accumulation of the scare material resources of society.
There are all sorts of well-known individual and collective consequences of this, ranging from the tendency of democracies to create inter-generational externalities (pushing pollution and debt costs onto our children) to the difficulty of forming interest lobbies for large groups seeking diffuse benefits (why spend the money to join the Sierra club when you can just free ride and get all the benefits?).
This is not to say that people will not, on occasion, be motivated by the common good (like reducing poverty) or by interests that are not primarily economic (like reducing abortions). But for most people most of the time, those interest will be secondary. Especially if they come into conflict with the economic self-interest. Which is simply to say that your views on the proper future of slavery circa 1857 might well have hinged on the amount of capital you held in slaves, or the degree to which your livelihood was dependent on the slave economy.
This, of course, can make for some interesting situations, in which economic self-interest puts people or groups in awkward moral situations. The most famous (and potentially disturbing) example is the role of munitions makers in the promotion of war. This has been a popular concern for centuries, and nary a major war occurs in which the weapons manufacturers aren’t accused of promoting and/or outright lobbying for conflict over diplomacy. A more humorous example is the often-told dark joke about segregation being propped-up politically by the deep pockets of the water-fountain manufacturers lobby. And if you happen to own the equipment needed to clean up an oil spill, well, yes. There does not seem to be an issue one can think of in which an economic interest for somebody can not be imagined.
Which brings us to the flags. As you might suspect, I have a certain fascination with the modern statehood movements in Puerto Rico, DC, and other American territories. Most of these movements have almost zero chance of success. Besides the mixed merits of their substantive claims for statehood, many of the movements are chronically underfunded,. There’s little incentive for the average person — either in the territory or outside of it — to donate money to them, because of the lack of particularized benefits and thus the ability to free-ride. Similarly, the economic consequences of statehood (in the contemporary cases) do not obviously benefit any sectors of the economy in particular. So the incentives for industry are at best neutral in regard to statehood, or in some cases may theoretically be to work against it. In other words, there doesn’t seem to be anyone to bankroll any of these individual movements.
But there is one potentially large, national interest group that seemingly has a huge stake in the success of any and all statehood movements: flag manufacturers!
Think about it: the average flag never needs to be replaced (not counting the little throw-away flags used at 4th of July or whatever). They basically last forever, or at least a solid 40 years. So the demand for flags is almost purely based on the need for flags in new locations, with very little demand based on life-cycle replacement of existing flags. But if a 51st state were to be admitted to the union, every flag in America would need to be replaced. Every classroom in America, every government building, all the military flags, every patch on every college basketball jersey, all the 4th of July sidewalk lining flags that reused every year. Hell, as described above, there are 50-star American flags on the moon. It’s endless!
Let’s do some very rough back-of-the-envelope math to figure out what kind of cheese is at stake here. Flags cost all different prices, but it looks like your basic nylon mid-size U.S. flag is something like $20. I have no idea what the profit margin is on a flag, but I don’t think $2-$5 is unreasonable. Let’s say $2.50 per flag. Now we just need to know the total number of U.S. flags to be replaced. Who the hell knows? It’s like one of those i-banking interview questions. Five hundred thousand? A million? 50 million? I literally have no idea. But we need a better answer than “a mind-boggling amount.”
So let’s just estimate a sub-question: how many flags would the public schools need? Let’s assume that there’s a flag in every classroom, as there was when I was growing up. A quick google search indicates that no one actually knows how many high schools there are in America, but various estimates seem to be around 20,000. Give each of them a radically conservative estimate of 15 classrooms. And give each high school one middle school and 3 elementary schools with a total of 35 more classrooms. By my math, that’s a million flags right there, in a conservative estimate. Which tells me this might be a billion dollar issue. In an industry that (evidently) hasn’t had a boom year since, well, 1959.
And talk about a manufacturing-sector stimulus plan. Imagine what the DoD contract for all new flags is worth? The lobbying campaign almost writes itself. Expand American Freedom, Create American Jobs. Do your part: give the gift of America this year. Statehood: It’s not just a 19th century relic. It helps makes the U.S. economy strong.
Of course, the flagmakers shouldn’t be satisfied with just a 51st state. The best strategy for the flagmakers’ lobby would be to try to get a state admitted about once a year, preferably in the late Spring. Under the flag laws at 4 U.S.C. § 2 (yeah), regardless of how many states are admitted to the union in a given year, new stars are only put on the flag on July 4, meaning it’s worthless for the flagmakers to get two states in at once. And the closer the admission date is to the next July 4, the less chance of any competition sprouting up to manufacture flags during the windfall. If you already are in the business of flagmaking, and you could just get a surprise admission in mid-June each year, I’m pretty sure that’s a goldmine.
Perhaps next week, I’ll do a more serious post on DC statehood. But for now, let me say that my preference would probably be to repeal the 23rd amendment, shrink the federal seat of government down to the bare-bones area surrounding the Mall, the White House, and the Capitol, and retrocess the remainder of the district to Maryland.
Happy 100th Birthday Arizona!
This is a few days late — Arizona the state turned 100 back on February 14 — but I happen to know a little Arizona territorial history, so I thought I’d pass it along. Better late than never.
My dissertation looked at the political development of the American west — how the statehood process in the Constitution was executed via the politics of territorial creation, territorial division, and state admission. One of the APD-ish chapters (condensed blog post on it here) examined how the civil war affected western territorial development, and Arizona was semi-prominently featured in that research, because the war affected not only the timing of the creation of the Arizona territory, but also the decision to divide the New Mexico territory along the familiar north-south line (as currently divides Arizona and New Mexico) rather than an east-west line, which at the time would have created a more natural political boundary.
Subsequent to southern secession, there was a general fear among the North of a western rebellion. Although the exact nature of the relationship between the states and the federal government had been up for debate for almost two generations, the reality of the southern secession in 1860-61 quickly turned all of the theoretical arguments of the previous 70 years into questions of immediate and concrete reality, including questions that had not been fully contemplated over the years: if the south was free to leave the union, was the west? If the south (free or not) did in fact leave the union, did it have any claim over the western territories? If the north made peaceful disunion with the south, did that affirm the concept that peaceful separation from the union was both legal and attainable for other states, or for western territories?
It is easy to imagine how these ideas made northern leaders, trying to hold the union together, quite nervous. Of greatest immediate concern to the union, however, was the competition with the south for the territories. It wasn’t an iron-clad lock that the western territories — particularly political communities in the west that had been denied territorial status over the past decade — would side with the union in the war. The combination of these two fears – the rebellion of the west into its own nation and the competition with the south for the allegiance and control of the territories – and the reality of watching their fears realized, spurred Congress into action during the war.
The creation of the Arizona territory exemplified these worries. After the New Mexico territory was created as part of the compromise of 1850 (the Gadsden Purchase was added in 1853), there was a period of about 5 years where there was very little local or national voice for further division of the territory. Staring in 1856, however, residents of the southwestern portion of the territory living in Tucson began to petition Congress to divide the state along an east-west line, which can be seen in the below map:
From 1857 until 1859, residents of Tucson annually sent a delegate to Washington from their proposed territory, but Congress refused to seat him. There were, however, sympathetic politicians in Washington, particularly southerners eager to see the creation of new plausibly pro-slavery states, and bills were introduced in both chambers of Congress for the creation of Arizona via an east-west line through the center of the territory annually from 1857 to 1860. Northern Republicans, of course, had little interest in creating a new southern-leaning territory, however, and correctly pointed out that the 1860 census revealed that Arizona county (the southwestern portion of New Mexico territory) had only 6,482 residents, far too small a population to merit a territorial government. With the northerners firmly in control of the national government after the 1860 election, the prospects for Arizona territory looked slim.
The secession of the south, however, was just what Arizona needed. With the southern portion of the New Mexico territory largely a pro-confederacy population, territorial secession conventions took place at both Tucson and Mesilla in March of 1861. The conventions seceded the pseudo-territory from the union, created a provisional territorial government, and sent out a petition to the Confederacy for admission. By January, 1862, the Confederate States of America had passed legislation organizing the territory of Arizona, and had accepted a delegate from the territory to their Congress. Arizona was officially a political institution of governance, only it was now in the Confederacy.
The union did not wait to act. Lincoln dispatched the Army to occupy Tucson, and Congress prepared legislation in March to create the United States territory of Arizona. The decision was made to split the old New Mexico territory along a north-south line, for two reasons: first, in order to reduce the influence of southern-sympathizers in both the new territory as well as the (new) New Mexico territory. Second, to avoid the appearance of rewarding rebel communities in the west who might seek to organize future territories by seceding from the union. The legislation for the territory stalled for a bit in Congress, and Arizona territory was not officially created until February 24, 1863, long after the Union Army had retaken control of the area. Although statehood would not come for almost 50 more years, the north-south line of division was never altered, and is today Arizona’s eastern border.
The upshot of this is threefold. First, it reminds us that contingent events matter. Absent the war, there would probably have been an Arizona territory eventually — the five big holding territories of the post-1848 west (Washington, Nebraska, Utah, Kansas, and New Mexico) were all subdivided into multiple territories and eventual states — but it would quite likely have been the southern state desired by the territorial residents, rather than the western state placed by Congress in response to war concerns.
Second, it illustrates that the process of bounding the proto-states was both shaped by contemporary politics and consequential to future politics. Time and time again — in Michigan territory, in Minnesota territory, in Washington territory, in Iowa territory, and so forth — the final boundaries of the new state or the new territory are both contestable and contested. As such, the territories and future states are first and foremost political constructions. And it’s not always the case that interests wish to be part of new states; in many territorial divisions and final statehood boundary fights, the politics takes on the character of a core vs. periphery battle, with each side sometimes interested in keeping the periphery in, and sometimes interested in getting it out.
Finally, the division of the New Mexico territory suggests that interests in both the territories and in Washington have goals to which different boundary lines can strongly influence, and thus strong incentives to shape the new territories and states to their preferences. The political development of new states is not simply an admissions game in DC, nor is it simply a settlers game out in the territories. Instead, the local goals of western residents combine with the goals of Washington politicians to create the political structure of development. Local leaders petition Congress, territorial legislatures memorialize Congress, and territorial conventions write state constitutions. But political actors in Congress have their own goals, to which the territories are often instruments. And almost uniformly, the key playing field for these two groups to meet is the House and Senate Committees on the Territories, whose influence on the process is still felt today, with its large role on the political footprint of the west.
The central government of the United States itself has no direct democratic constituency. It is instead constituted exclusively by the aggregation of democracy that takes place in the state governments: members of Congress are chosen by districts either within states or by the states at large; the President of the United States is chosen by the electoral college, a system that purposefully sets aside a direct national election in favor of an aggregation of state elections. Ultimately, no matter how great the authority of the central government becomes, the structure of social choice in the United States will continue to reflect the federal nature of the system.
And that federal nature was largely created as the byproduct of the political goals of western settlers and political actors in Congress, who built a nation incidentally while pursing short-term interests in the 19th century. The resulting configuration of non-original states in the United States – their number, size, and shape – is a lasting visual footprint of the politics of the statehood process in the 19th century. The politics that created that footprint continues to structure social choice in the United States today.
But that’s a (long) story for another time.
[The below writing is provisional, necessarily brief, and probably unclear; I did it with a 3-year old hanging on my back. -- mg]
My graduate school adviser, David Mayhew, had an article over the weekend in the Washington Post — entitled Which Was The Most Important U.S. Election? — that I’d recommend reading. The basic premise is that all elections are billed as the “most important,” and while that obviously can’t be true, some elections are more important than others. Mayhew then goes on to nicely discuss a variety of criteria by which to judge past elections — the importance at the time, durable policy shifts that resulted, durable political cleavages that resulted, the independent effect of the campaign, and of course the most fascinating to think about, what if the other guy had won? Well worth reading.
It’s this last point, the counterfactual point, that I want to take up briefly. Because I think it’s the one that bedevils most of this sort of analysis. At one level, the counterfactuals are impossible to figure, because we don’t have any grip on the path-dependence; as Mayhew notes, if Polk loses to Clay in 1844, the Mexican War may never happen, meaning the southwest might not have become part of the U.S. in time to create the territorial slavery crisis of the 1850′s, which might have dramatically altered the trajectory of anti-slavery in the North and perhaps the entire structure of the demise (or not) of southern slavery. Who the hell knows? Same thing in 1968. If Humphrey had wound down the war by the end of 1970 and didn’t resign in the face of impeachment over criminal political activity, it’s not clear how the nation would be different today, but reasonable to think it would be. Consequently, we only have the vaguest notion of the alternative realities against which we compare the known outcomes.
But at a second level, I think the counterfactual issue raises an even more daunting problem: it confuses our sense of what is important as opposed to what is consequential. This is an artificial distinction, I suppose, but here’s what I mean: when I say something is important, I mean that it has an independent effect on what happens. When I say something is consequential, I am saying something less: that the alleged thing did not affect what ends up happening so much as it contributed to when or how it happens. Here’s an example: you don’t eat your lunch until 3pm because you were busy at work. Then, when dinner is on the table at 6:00pm, you aren’t hungry and don’t eat much. We can pretty clearly say that being busy at work was important in reference to your dinner performance. But take the opposite situation: you skip lunch, and so at 5:00pm you are quite hungry for dinner. We could say that skipping lunch was important in the outcome but actually it’s just consequential. Whether or not you skipped lunch, at some point, you were going to get hungry anyway. Note that this is not true in the other situation — you were not eventually going to be too full for dinner; eating lunch at 3pm is precisely important to that outcome.
This may all seem trivial, but I assure you it is not. Let’s switch to the elections I always use to illustrate this point: 1860 and 1800. Everyone seems to think that 1860 is the most important election in U.S. history; I have always contended that it was simply the most consequential: the outcome of the election — a GOP victory followed by the gulf states seceding followed by a standoff over federal property followed by an armed conflict followed by the upper south seceding followed by a war — was probably not specific to 1860-61. It was the equivalent of getting hungry for dinner. If Fremont had won in 1856, there’s every chance that the entire play would have been produced four years earlier, in the winter/spring of ’57. Similarly, even if the most optimistic Unionist scenario had occurred in the wake of the 1860 election — a Douglas or Bell victory that somehow managed to reduce the tension between the fire-eaters and the anti-slavery men — it’s almost impossible to envision a path forward that would have diffused the fundamental conflict over slavery. As with 1856, a GOP victory under, say, Seward in 1864 might very well have produced the same spiral into war.
And so those who claim 1860 as important should not, in my view, be attributing much of that importance to the Lincoln and/or GOP victory, per se. Consequential as hell, no doubt. It lit the fuse that led to Sumpter in April, 1861. But that fuse was ready and waiting to be lit, and any GOP capture of the Presidency after 1854 was highly likely to strike the match (See this post of mine for some discussion of why the Presidency was the key worry of the South). And so 1860 looks important where 1856 does not, but that’s just a matter of outcome and consequence, not of actual importance. In effect, 1860 was consequential because Lincoln won, whereas 1856 was not consequential because Fremont lost. But ex ante, both elections were of similar potential importance/consequence: a GOP victory was likely to lead to southern secession and possibly war. That it happened in one and not the other does not strike me as reason to assign one election as important and the other as not. (This is not to say 1860 was not important on the other Mahewian dimensions; it’s merely that the counterfactual aspect is not particularly compelling.)
This temporal effect — which preferences 1860 simply because that was the GOP victory — is even more insidious when there is a negative result. For after all, the war came, so we know that something was important in the late 1850′s and early 1860′s. But what happens when the war doesn’t come? This, in my mind, is what happened in 1800. In that election, the Jeffersonian forces defeated the incumbent Federalists, who had been steadily creating a more and more authoritarian and non-democratic central government (most well-known by the Sedition Act and the various Alien Acts passed in 1798). Two pieces of the election were notable: first, the Jeffersonians won, which led to the non-renewal of the Sedition Act; second, the Federalists did not challenge the legitimacy of the elections or otherwise refuse to give up power. I would argue that both of these were important, rather than consequential, events. There was nothing inevitable about the ending of the Sedition Act or the peaceful transfer of power to an opposition group. It wasn’t a question of when those things were going to happen, but if they actually were going to happen at all.
Thus, that the Jeffersonians won the 1800 was nothing like the GOP winning in 1860. But the key difference is that in 1800, the dog didn’t bark: the Federalists handed over power, the Sedition Act expired, and the United States went on to build a very solid limited national democracy over the following generation. But it could have very easily gone the other way: a Federalist victory or a refusal to give up power in 1801 could have either sunk the U.S. in its tracks as a nation, or wholly undermined the democratic character of the nation, perhaps setting us back a generation or more as a modern liberal state. And so we view 1860 and 1800 exactly backwards: the former is billed as a important election because it happened to usher in an almost inevitable set of events, while the latter is not particularly recognized as important because a set of vitally contingent events ended up not in disaster, but instead came out roses. In other words: the consequences of 1800 were happy, despite being the result of an incredibly important contingent election, while the consequences of 1860 were profound, despite being inevitable except as to date and time, which hinged on a similarly contingent election.
None of this, of course, denies that the 1860 was the most fascinating moment in American history. As I’ve written before, we may never see American politics in quite such disarray every again.
Back in October, as an anti-tribute to Columbus Day, I wrote a post on federal holiday legitimacy that included this chart:
1. First, to what degree would the event be celebrated/commemorated absent the federal holiday. Was the holiday significant prior to government recognition? Would it be without it? Does the private sector shut down? In essence, is the government holiday just a reflection of private reality, or is the holiday driven by the law.
2.Second, to what degree is the day off itself a cultural event. Do people get together with family or friends? Are there parades? Do you go over and see your neighbors for a barbecue? Do you think/talk about it at your dinner table? In essence, to what degree do you know its a holiday besides the fact that you aren’t going to work.
Columbus Day is the obvious loser on both these dimensions.
But the holiday coming up on Monday — which at the federal level is “Washington’s Birthday,” not “President’s Day” — is actually my least favorite holiday. Not because it’s the second least-legitimate under my dispassionate rubric. There’s that, but it’s mOre because I actually don’t believe in the underlying sentiment. Whereas I think Columbus Day is silly, I think Washington’s Birthday is fundamentally wrong. I don’t like the veneration of war service. And God knows I’m not really a big fan of the Presidency. Really, not a fan. Not at all.
But mostly, I just don’t believe in the idea of political courage, or that elected officials should be considered heroes for their political actions. I think Profiles in Courage is more or less bullshit. Democracy, for me, isn’t the story of good and evil men battling it out, with outcomes hinging on the character of individual key players. But our culture tends to reinforce that premise: that a few individual men produced our government in the 1780′s, and brought down slavery, and ended segregation, and defeated fascism and communism. President Washington was undoubtedly an important President who did many great things for our country. But he didn’t do them alone, and he wasn’t a divine right king. To make it out like he was just gives me the willies, like some sort of totalitarian state. Henry the 8th surely had holidays for himself. Kim Jong-il too. We don’t need them.
In reality, most of the important historical developments in our democracy were the complicated result of national or international coordination, with massive numbers of people — at both the low and elite levels — involved in the effort. But leave that aside. Even if we could pin something like the triumph over slavery on a few people, it’s not obvious to me that they were courageous. For instance, the leading antebellum Republicans weren’t exactly courageously going against their constituents when they promoted anti-slavery policies!
The historical triumphs of American democracy are a credit to the institutional structure and its ability to wring moral justice from an arrangement of government that, ex ante, preferences neither the good nor the right, but instead just the popular. It’s a testament not to individual leaders, but to a system and a people, and to the wonders of democratic government; ideas — no matter how unpopular at first — can and do matter. But leaders? I’m very skeptical, at least beyond the margins. Can skillful leaders accomplish more than weak ones? Sure. Are successful leaders more skilled or responsible for the outcomes than unsuccessful ones? I’m not convinced. And so, if it were up to me, I’d just assume get their pictures off the money, stop naming roads and buildings after them, and stop pretending that to win a national election is tantamount to a blessing from God.
And look, I’m not trying to be a curmudgeon. Anyone who reads this blog probably knows that I’m a hopeless romantic sucker for democracy and its ritual pageantry. I love voting. I love the State of the Union address. I also don’t have a strong beef against the holiday — this isn’t that big of a deal and, heck, I like the day off. But it definitely gives me the creeps. Of course, call me a hypocrite, but I love the National Mall. And yet, when I’m down there, I can’t shake the idea that the Washington Monument is the worst of all the memorials. Because it doesn’t pay tribute, really, to anything of substance; it’s all about a man. The Lincoln Memorial lets you read Lincoln’s second inaugural and the Gettysburg Address. In effect, it’s a tribute to a set of ideas, as expressed by a man. Ditto with the Jefferson Memorial.
I’d be much happier with Washington/Lincoln’s birthday replaced with something like a Constitution Day holiday, and MLK Jr.’s birthday replaced with an Abolition Day holiday or a “we beat segregation” day of some sort. But since that’s not going to happen anytime soon, I’m just as happy with a Washington’s Birthday that no one cares about. And so on Monday there will be sales at the stores and people will relax with their families. A lot of people won’t even have the day off. And not a whole lot of people will think about President Washington. And as far as I’m concerned, that’s a good thing.
Well then, congressional staff.
Someone asked me a few weeks ago to do a general post on the topic, but…where to begin? Let’s do this in three chunks: a legislative branch overview, a basic rundown of the staff in a Representative’s office, and a look at the most relevant recent trend: leadership staff growth. I’ll just highlight some key stuff, this is far too big of a topic for a blog post.
Legislative Branch Overview
There’s somewhere in the neighborhood of 30,000+ people working in the legislative branch of the federal government, which seems like a lot until you realize that 30k is roughly just a bit more than 1% of the about 2.75 million non-military employees in the executive branch. Anyway, those legislative branch staffers can be divided into five general categories:
Member Personal Staff — staffers in the House or Senate employed by individual Representatives and Senators. Each Representative’s office can hire up to 18 permanent staffers and 4 others (i.e. part-time, interns, etc.), constrained by the financial limits of their Member’s Representational allowance (usually referred to as the MRA; a lump sum of money appropriated annually in the Legislative Branch Appropriations Act and given to each office to pay for staff, office expenses, travel, and mail. The MRA is regulated by law, chamber rules, and Admin committee regulations). Senate offices are not limited in the number of staff, but are constrained by the financial limits of the SOPOEA (similar to the MRA). There are roughly 7,500 personal staff in the House, and about 4,500 personal staff in the Senate.
Committee Staff — staffers in the House or Senate employed by one of the standing committees. There are about 1,500 committee staffers in the House and about 1,200 in the Senate. Like personal staff, funding for committee staff is provided in the Legislative Branch Appropriations Act and authorized by the chambers under resolutions in the jurisdiction of the administration committees. Committee staffs vary in size, constrained by chamber rules and their budgetary resources. While there is no hard and fast rule in the House or Senate, the norm in the modern era has been to give the minority control of 1/3 of the committee staff; all vouchers, however, are signed by the committee chair.
Leadership Staff — staffers in the House or Senate employed by the chamber majority or minority. This includes the formal leadership structure — Speaker, majority and minority leaders, whips — as well as the party policy apparatuses (i.e. the caucuses and conferences) and some other positions (like cloakroom staff). As discussed in trends below, the overall number, and the funding for, leadership staff has increased significantly in the past few decades.
Administrative Staff — staff that work for the House or Senate itself, such as the Clerk’s Office, the Parliamentarian’s Office, the Sergeant-At-Arms Office, the CAO of the House or the Secretary of the Senate’s Office, and so forth. Roughly 900 staffers in the House and 350 staffers in the Senate.
Support Agency Staff — staff that work for the legislative branch external to the House and Senate proper. This includes the Library of Congress and Congressional Research Service, the Architect of the Capitol, the Capitol Police, the Congressional Budget Office, the Government Printing Office, the Government Accountability Office, and the Office of Compliance. Roughly 15,000 employees.
Staffing in a Representative’s Office
Within the general boundaries of their budget constraint, as well as law and chamber rules — which can be shorthanded to something like “follow the civil rights act in hiring, don’t hire your brother, staff must work on official business only, and absolutely no campaign work on official time” — Members can organize their staff resources as they see fit. Therefore, how Members allocate their 18 permanent staff slots varies considerably. It really is like 435 small businesses.
The first thing to get over is the nomenclature. There are literally dozens of names for the eight basic jobs in a personal office. I think of those jobs as: Chief of Staff, Legislative Director, Press Secretary, Legislative Aide/Assistant, Caseworker, District Director, Scheduler, and Staff Assistant. But you will hear tons of variations on these (Senior Legislative Assistant, Deputy Chief of Staff, Communications Director, etc.) as well as other jobs that are distinct but not universally employed by every office (Legislative Correspondent, Counsel, Systems Administrator, Field Representative, Office Manager, etc.). Here we’ll stick to the basic eight, since those are the most important to understand, anyway.
One key variable is how many staffers will be in DC vs. how many staffers will be in the district. In general, district staffers deal with casework (i.e. citizens who have a problem or issue interacting with the executive branch), grants, outreach, and sometimes the logistics of Member and DC staff travel while in the district. So the typical district office will have a District Director, some number of caseworkers, and probably a staff assistant answering the phones, dealing with mail, and other administrative tasks.
In the DC office, the point person will almost always be called the Chief of Staff, although there are still some old-school people who refer to them as administrative assistants, which is maddening because that doesn’t sound like the top job in an office these days. Under the chief of staff you are going to have three general groups of people: the legislative employees, which is typically a legislative director and some number of legislative assistants; the press shop, which in the House is often just one person, the Press Secretary; and the administrative people, which will include the scheduler and all of the legislative correspondents and staff assistants. These aren’t even close to hermetically sealed-off teams; House offices typically run much more like all-hands-on-deck situations. A brief description of the responsibilities:
Chief of Staff: overall management of the office; often the point of contact between other staff and the Member; strategic planning and coordination of district and Washington activities; policy adviser to Member; point person for budget and hiring.
Legislative Director: policy adviser on top Member legislative priorities; management of legislative assistants; point person on floor developments and action.
Legislative Aide/Assistant: track legislation in particular policy areas; develop legislative initiatives in those areas; follow relevant committee action; write floor or committee speeches; prep Member for committee hearings or other relevant meetings; meet with district and lobbying groups in policy area.
Staff Assistants / Legislative Correspondents: work with Cos, LD, and LAs on duties as assigned; often includes tracking legislation, drafting responses to constituents, prepping materials for meetings; answering phones; reception duty in office, etc.
Scheduler: Maintain Member’s personal schedule; schedules staff meetings, briefings; coordinates with Press Secretary to plan media appearances.
Press Secretary: handle all aspects of press relations; formal spokesperson duties; speech writing; communications strategizing; arranging media contacts for Member, etc.
Again, the most important thing to remember is that these jobs are hardily airtight compartments. The work of Member’s office — responding to casework and policy input from constituents, monitoring legislative developments, and formulating policy positions and original legislation — are often complete team efforts. It’s not unusual to see the Chief of Staff physically assembling a briefing book when time is short, or the press secretary taking a lobbying meeting in a pinch.
The most interesting trend in congressional staffing is the relative growth of leadership staff compared to personal and, in particular, committee staff. Below is a chart of House leadership and House Committee staffing levels, from 1982 to 2010. The dotted line is committee staff (note the large drop in 1995, when committee staff was cut across the board by 1/3), and the solid line is core leadership staff (Speaker, Maj. and Min. Leaders, and whips); the left Y-axis plots committee levels, the right leadership levels.
It’s not an exaggeration to say that the House leadership exists in a qualitatively different resource environment than it did a generation ago. Take the Speaker’s Office, for example. In 1982, the Speaker’s Office employed just 14 people. By 2010, the staff had more than quadrupled to 59 people. Here’s a plot of the growth:
I also have a forthcoming academic chapter about leadership staff trends. I will post an ungated version soon.
That’s a great question! And I’m spending some time answering it. Previous entries in the series:
Part One: Consenting Adults (1/31/2012)
Part Zero: Ground Level Decks (1/30/2012)
The Cost of Good Intentions
Having clarified the proper relationship — which is ‘no relationship’ — between the state and individual non-harming activity, I’d like to turn now toward the issue of state involvement in preventing and ameliorating harm. There should be no question that the state has some important role to play here; to disagree would be to leave the realm of libertarianism in favor of some sort or anarchy. So I don’t think the first-order question —- does the state have a role to play in regard to harm — is worth any further discussion. But that only leaves the second-order question: what role should the state play?
Rather obliquely, I think a singular concern animates this discussion: the lawful state execution of an innocent man. Which is, I think, the ultimate example of the general problem of the state causing harm to the non-harming individual as it seeks to prevent and ameliorate harms perpetrated on the non-harming individual by others. As a non-harming individual, I am obviously interested in the state having a monopoly on violence such that violent harm will not be perpetrated upon me by others; but if that monopoly on violence results in a greater harm being perpetrated upon me by the state than I otherwise could reasonably expect absent the state’s involvement, then clearly there is a problem.
And that’s the rub. If we were not concerned about harm caused by the state, then preventing harm caused by private citizens would be simple. We could employ massive numbers of cops (at massive expense), do huge dragnets anytime there was a mugging, arrest every plausible suspect within a 10 mile radius of any crime, drop all suspects in jail until they could prove they were innocent, and execute anyone who couldn’t do so within a week. Now, as absurd as that examples sounds, its principle is the basis of all limitations on the state’s ability to stop harmful behavior by individuals. The power to stop harmful behavior inherently entails the possibility of the state doing harm itself.
And so we find ourselves in a cost/benefit analysis. We need to maximize the utility function to the individual such that the harm reduction produced by state action is maximized, after the harm done by the state is subtracted out. And thus we get many of the familiar post-Enlightenment civil liberties: innocent until proven guilty, trial by jury, habeus corpus, an independent judiciary, the right to counsel, protections against search and seizure, and so forth. Many people naively believe that these rights are in place as limitations on the state’s ability to discriminate in pursuit of the guilty, that they exist for the purpose of due process and equality of all defendants. Nonsense. These restrictions are in place to minimize the state harm done to the innocent, non-harming individual. That they ultimately aid the guilty as well is a defect, albeit one that we happily live with given the alternative.
And so we learn to live with the consequences of this arrangement. We empower the state to reduce harm through prevention and punishment of crime, which gains us utility X. But we restrict the state from using all possible tools to maximize X, because those tools come with costs Y. Our goal is to maximize the function U= X-Y, hopefully across both society and all non-harming individuals. Which leads us to the situation in which, hopefully, we trade off a fair number of guilty men escaping punishment from the state, in exchange for an absolute minimization of the number of innocent men who are wrongly punished.
That’s the theory. And so far, I would suspect that any straightforward liberal is right with me. And probably many contemporary conservatives. The only difference at this point might be where we believe the line falls on the utility maximizing function. It’s a fair question. Some conservatives might believe that you can maximize total and individual utility by paring down the 4th amendment search and seizure protections. Some liberals might believe that the utility maximization may come from doing the opposite.
It largely depends on how you rate the costs of state harm. If you don’t think it’s a big deal for innocent people to be pulled over by the cops now and again for 15 minutes or so, you could obviously further optimize the utility function by allowing random Terry stops on the highways. Conversely, if you think all random citizen interactions with cops are highly suspect and potentially very harmful, you might very well believe that we could optimize the utility function by getting rid of the random DWI checkpoints on the highway. There’s no obviously correct answer; at some point, it becomes a clash of axioms.
So as a policy and constitutional matter, I probably differ from most conservatives in that I believe the harm done by the state to innocent non-harming individuals is a very serious detractors from the overall utility. It’s one reason I adamantly oppose the death penalty. It’s why I think indefinite detention is a policy utterly beneath our republic. And it’s why I’m for stronger 4th amendment interpretations by the courts and legislative restraints on police activity. I’m probably to the left of most liberals in these views as well, although I don’t think I could fundamentally be distinguished from them in a basic test on these counts. Perhaps I rate the costs of these state harms slightly higher, but I don’t think it’s all that different.
Where my thinking parts from the liberals is in my view of what constitutes a negative cost in terms of state harm: liberals (and conservatives, too, of course) do not fully account for the state harms, or the magnitude of that harm, when they look to use the power of the state to solve problems. And this, I think, illuminates what I see as the the principle difference between modern liberalism and libertarianism: liberals seem quite convinced that any definable problems or harm can, if not be eliminated, at least be mitigated through state action, such that the overall situation is improved. I simply do not believe that to be true; in my view, there are a great many things that we might agree in principle are problematic or harmful, but that are already at their maximum utility under current arrangements, and state action can only serve to increase the total harm to society. Or, conversely, that the utility function can be maximized by reducing the state involvement.
I would suggest that the blindspot of liberals is particular acute in three theoretical, and related, areas: unintended consequences, long-term utility calculations, and the general capacity of the state. Start with unintended consequences. For whatever reason, a fair number of liberals seem to think that policies aren’t particular dynamic, that you can institute changes A, B, and C and get beneficial effects E,F, and G that outweigh negative consequences J, K, and L without also getting surprise results X, Y, and Z.
But society is complicated! Predicting human behavior is difficult. Virtually nothing functions even 95% as intended. And perverse incentives and disappointing results are almost always the norm. The odds of getting a highway project in under budget is 50/50 at best. At best. The odds of getting the ACA to work as intended is probably way, way worse than that. We’re already seeing numbers on some aspects of it come in so far away from projections that it’s laughable. Now, does that make the ACA bad policy? Not necessarily. But it does mean that we have to apply a severe discount to the utility of proposed solutions when we consider them ex ante. And certainly more of a discount than most liberals are willing to apply.
Second, long-term calculations. Whatever the immediate unintended consequences of state action are, they pale in comparison to the long-term unknown consequences. Was Medicare a good idea in 1965? Probably. Would we have thought it quite as good of an idea if we knew the way senior health care costs were going to skyrocket over the following 50 years? Probably not. Would we have changed our mind then knowing what we know now? I doubt it. But would we have done things differently? Almost for sure.
And that’s the point: we can’t see the future 6-months down the road, and we sure as hell can’t see it 50 years down the road. That doesn’t mean we have to throw our hands up in the air, announce we have no crystal ball, and stop doing anything. But it should lead us to some humility and some conservative thinking about the capacity of the state to ameliorate problems. Short-term solutions are the easiest thing in the world, since you can borrow money and happiness from the future. But that doesn’t make them automatically less harmful than doing nothing. Liberals tend, in my experience, to forget this.
Finally, the capacity of the state. This kills me, every time I talk about it, because liberals often refuse to accept it even in principle. Here’s the concept: when you empower the state to do good, you inherently increase its capacity to harm. Period. Now, the classic examples — like The Road to Serfdom — are, in my mind, overcooked quite a bit. It’s not the case that centralizing control over a democratic economy will inevitably lead to a tyrannical non-democratic state at some point down the road. But that doesn’t mean it’s not a danger, or that it’s a danger you can ignore. If you want to maximize the possibility that there is never a police state in America, you can start by radically shrinking the military, the police force, and the tax base of the federal government. And when you don’t do that — when you instead increase the capacity of the state, you are creating the infrastructure necessary for negative uses of the state.
Now, like I said, you don’t want to think of this at The Road to Serfdom level. Instead, think about things like agricultural subsidies. If you are a liberal and you are appalled by the amount of money the federal government gives away to big farming, stop and think about the roots of the policy: 19th and 20th century price supports for family farmers. Same thing with corporate welfare policies, or with the income tax code. Good lord, the tax code. I would contend that if you support basically any tax breaks for anything (i.e. child tax credits, charitable giving deductions, etc.), you are merely setting the stage for massive corporate loopholes and carried interest tricks. The only way to avoid them is to stick with a neutral principle, like no credits/deductions for anything. I’m serious. The moment you allow the state to take on projects for the greater good, it will inevitably have the capacity — even if it’s only the intellectual ability to dream — to take on projects that benefit the rich, or the powerful, or both.
Again, does this mean nothing is worth the state’s doing? Not by a longshot. But it has to be part of the calculation if you want to be a realist. And at the policy level, there’s not much worse than a liberal dreamer. Actually, that’s not true: there are my parents, who I’m pretty sure drove me to libertarianism. Because they embodied the worst of all of the above blindspots, with one gut-punching twist: they knew the limitations and problems of the state, but they didn’t care. Both of them were mainstream young 60′s liberals, the kind of people who thought McCarthy was awesome in ’68 but were more likely to support RFK. Probably just like the modal middle-class northeastern 19-year olds of the day.
Anyway, they pared this sunny liberal optimism with an absolutely ridiculous level of cynicism about the government’s ability to solve problems. Never saw a highway project they didn’t curse at. Never watched the news without ripping into the inefficiency of the bureaucracy. And absolutely hated the post office and the DMV. And yet this cynicism did not stop them from endorsing ever-greater government interventions into the economy and society! My nickname for this was cynical liberalism. My father, arguing till the cows come home about how we need to expand Medicare and Social Security, only to 20 minutes later be complaining about how the federal government couldn’t tie it’s shoes for less than $20. And if you pressed him on it, he’d say something absurd like, “Well, we have to try! We can’t just do nothing!”
And that’s the point. We can do nothing. In fact, we are obligated to do nothing when doing nothing is the solution that maximizes the utility of society and the individuals within it. That’s why I titled this the cost of good intentions. Because sometimes, as hard as it is to do, the best solution is to simply walk away from the problem. It’s cliche, but sometimes the cure really is worse than the disease. Even whey you are trying to help the worst off in society.
And so while my beef with conservatives is that they are too willing to underestimate the magnitude of state harm when weighing it against the utility of state intervention, my beef with liberals is that that tend to discount whole categories of harms that detract from the utility of state intervention in society. Like I said, some problems — when put into a cost/benefit analysis — are best “solved” by doing nothing. My sense is that not enough liberals understand this.
A final example: handgun bans. I’m pretty sure that nothing drives me battier when talking to liberals — and I mean nothing — than discussing handguns. I don’t think there’s an issue out there (well, maybe agricultural subsidies) that turns some liberals into daydreamers faster. They are incredulous at the idea that reducing guns doesn’t always reduce gun crime, and in some cases may increase it. They refuse to accept that there are hundreds of millions of handguns currently in the United States, and that they aren’t going anywhere, legal or illegal. They can’t stand the idea that almost no murders are committed with legally-possessed handguns. It just annoys the hell out of them to hear a pro-handgun argument, even when I make my basic “I don’t love handguns either, but you have to be a realist about the effects of banning them” monologue.
But the cherry on top is watching them react to any sort of “protection from the state” argument. I swear, you mention the idea that gun ownership protects people from state tyranny, and pretty much every liberal immediately makes some joke about Joe Sixpack stopping a U.S. military tank with his handgun. But I think this precisely misreads the situation on two levels. The first is the factual: anyone who has ever watched the youtube videos from Iran knows that the tyrannical state doesn’t maintain its grip by employing tanks everywhere; there’s simply not enough money to do that. Instead, it relies on thugs and other ill-trained militia to terrorize citizens with knives, clubs, and small arms. You watch the video of a man being assaulted on his own front lawns by one or two state thugs with knives and clubs, and it become self-evident that such practices simply would not be possible in a society with as many homeowner firearms as the United States.
But leave that aside, because that’s the stuff of Road to Serfdom overcooking. The real reason I think the handgun bans make perfect sense to liberals is largely tied up in the blindspots I’ve pointed out in this essay. The belief that the state can be employed to solve or at least mitigate almost any problem corresponds to an unwillingness to see non-governmental solutions or mitigations to serious problems. The vast majority of people who own handguns own them for one specific non-sporting reason: to protect their families from harm within their own homes. But that brings us full-circle to the role of the state in the libertarian worldview: the prevention of harm to the non-harming individual. Any state action that reduces the number of handguns that exist solely for home defense must begin by admitting that the policy, on its face, is going to increase harm to the non-harming individual. And that places the tough burden of proof on those who seek the state power to do so. I don’t own a gun, I don’t think I ever would. But I have very little sympathy for those who think we should be taking them away from non-harming individuals.
Imagine that I sent an email to you and six of our friends suggesting that we plan a picnic for next weekend:
Hey all, we were talking about getting together this weekend. It looks like the weather is going to be great, anyone want to have a picnic? I already talked to Rachel and Jack about it, they thought it was a great idea. We could do it at Burke Lake Park Saturday around 12:30? There’s a good spot on the south side down by the water that’s nice and shady. It has a couple of picnic tables, but I could also bring my two extra-large quilts. What would people want to eat? I was thinking we bring hot dogs and hamburgers to grill over their charcoal pits, potato salad, watermelon, and chips. Maybe Sarahjane could make those blond brownies, too? And someone should grab some beer and soda. The water will probably be warm enough to swim, so we could bring bathing suits. They also have that frisbee golf there, and someone could bring a football.
Now, the chances are that this is not exactly how the picnic will go. People might suggest other food they want to bring, different recreational activities that we might need equipment for, or even a completely different time or location. Sarah might offer to make a different dessert; Jack might suggest we bring our baseball gloves; Becky might throw in that she’d rather have fruit salad than watermelon; Tom might declare that 1pm works better for him; Anna might say she also wants pretzels and veggieburgers; Megan might veto the quilts in favor of sand chairs, and Chris might suggest the clearing on the east side of the lake because it has both shade and sun. And, of course, the whole thing could fall apart if people have other things they need to do.
What is highly unlikely, however, is anyone sending back the following email three hours later, after 2 others have already agreed to the picnic:
That could be fun, Matt, but I was thinking this: we go to Manassas mid-afternoon Sunday. Have an afternoon lunch at Mickey’s Diner, we haven’t been there in forever. It’s going to be the perfect wind to fly kites at Bull Run battlefield park. There’s a great sunset there in the summer, and the hiking trails are awesome. And the Manassas gun range is right by there, so we could bring our rifles and go skeet-shooting afterwards. I’ll also throw my volleyball net in my trunk.
This is, in a nutshell, why it’s an advantage to be the first-mover in legislative politics.
1) You get a head-start on popular persuasion. This is because of the information asymmetry. You might have spent 3 hours crafting your picnic idea and formulating the perfect email. You might have even called Rachel and Jack to get them on-board before presenting it to the group. And people who love the idea are going to respond really quick. Anyone who disagrees fundamentally with the idea of the picnic has probably less than 20 minutes to counter with an alternative idea, since as soon as one person responds affirmatively, the wholesale substitution is probably no longer viable within the full group. And so it goes with legislation. Think of the committee chair who spent weeks crafting a chairman’s mark, facing off against committee opposition that only got a copy of the proposed legislation minutes before the markup. Or the army of people that the administration can deploy today on the press while Members of Congress sit around trying to figure out exactly what is even in the budget proposal.
2) Something beats nothing, every time. This follows directly from the head start on popular persuasion. Our picnic proposal not only offers specifics as to time, place, and manner, but it also quickly locks in the big-picture agenda. Even if the majority would prefer to do something else, as soon as a few people back the picnic and there is no immediate alternative, the picnic has won at the conceptual level. That’s why the kite-flying / gun range alternative seems so absurd and impolite — it might be more popular ex-ante in a pair-wise comparison, but once people have signed onto the picnic in concept, they’re not changing their minds. Too many plans may already be based on it, and too many resources may already have been expended. So to in legislative politics; when the majority in Congress chooses among possible legislative paths on a big issue, they are unlikely to accept a full substitute from their own side down the road, even if it would have won a pair-wise vote at the outset.
3) You force people to amend rather than substitute. Following from the lack of full substitutes comes the tendency for non first-movers to focus their attention on amending little details. This is when you know you have won, because it indicates that people have conceded the big-picture and are now out to maximize their utility under it. And so they each seek to change the detail that most concerns them. Here you have also won; not only have you laid down the big-picture, but even if everyone changes one detail, you’ve still decided almost a majority of all the details. Now that’s disproportionate influence. This is as true in legislation as it is in picnic-crafting. There are so many details in every major bill that if you can afford to cut loose any two dozen of them, you’ll still end up with something that not only looks like what you wanted in spirit, but is, in fact, 80% of what you wanted. Especially because even when they do change things — like Tom moving the picnic by half an hour — they haven’t really altered your general vision.
4) You become a stronger veto player. For whatever reason, people offer undue-deference to first-movers. Maybe it’s a subconscious reward, because the first-mover is seen to have put in the most “work” or “leadership” on an issue; it could also be the result of a repeated-game logroll, in which people expect you to defer to them when they are the first-mover. Or it could just be not wanting to step on anyone’s toes or create a scene between friends. In any case, when you propose a picnic, people will be more than careful not to alter things unilaterally without your permission. Someone wants to play cornhole instead of frisbee golf? They’re going to run it by you to see if it’s ok. And this seems true independent of your institutional authority over the situation. With co-partisans, it may come down to not wanting to embarrass someone or mess up their grander plan. But in any case, it’s real. It will not just take a simple majority to alter your picnic plan once the basic terms are agreed to, it will take a supermajority.
I suspect that not a whole lot of people were thinking about any of this in Congress when the Budget Act was passed in 1921, which for the first time required the President to submit a unified executive branch budget, rather than the departments simply coming to Congress piecemeal and presenting budget requests. The institutional results for inter-branch relations was largely twofold, both beneficial to the President: it made him the first mover in the budget and appropriations process, handing him the authority to develop and submit the unified budget. And second, it gave him increased control over the executive branch, since it required the departments to now send their budget request up through the BoB (now OMB) for approval, meaning the White House would have stronger authority to request, manipulate, and reject agency budgeting and planning.
In any case, the role of the President in the legislative process was vastly expanded in 1921, and it was done by Congress. Appropriations are the only thing that Congress has to do each year, and in an attempt to bring rationality and clarity to the process, they effectively took their main function and voluntarily decided to share it with the President. Does this make the Budget Act a mistake? Not by a longshot. The United States almost certainly needed a unified federal budget, and there is hardly another actor in the system who could have provided it. But it is a reminder that the best laid plans, even when they are executed successfully, are rarely without unintended consequences. For better or worse, the budget process in the United States is now, in part, heavily dependent on the President. And this is magnified by the fact that he now writes the picnic email.
This post was authored by my brother-in-law, Dan Courtright, a writer who lives in New York and knows a hell of a lot about football.
I’ve heard each of the following claims over the past few days, mostly on the Mike Francesa show and ESPN. Let me weigh in on their relative merits:
1. On the final drive of the game, the Giants put 12 players on the field on purpose. An entertaining fallacy. The idea is that the Giants purposefully put 12 men on the field in the 4th quarter to defend the Pats with extra players, taking non-refundable time off the clock, guarding the end zone, and taking the 5 yard penalty afterward. I have no problem with the idea that this might be a good strategy; but it was not the Giants’ strategy on Sunday. Justin Tuck – the 12th man – was running off the field when the ball was snapped.
2. Deion Branch may have caught the pass on the sideline at the Giant 30 with 5 seconds left. I haven’t heard this anywhere. But it’s true. Giants fans – check your Tivos (Patriot fans, recover the game from your Tivos’ ‘Deleted Items’ folder). Branch dragged both toes in bounds, and kept them down through the chalk; the only question is whether he had possession of the ball while the toes were still in bounds. My Tivo attests that it was incredibly close. When Branch first touches the ball, both toes are on the ground. There is a frame on one replay where he has both hands on the ball, and the toes are probably still in – although, the reverse angle would tell a more convincing tale (did anyone else wonder where the reverse angle was on the Manningham sideline catch the Pats challenged? The ball appeared to start moving as Manningham hit the ground…). The replays on the game broadcast did not offer the “incontrovertible video evidence” required to overturn a call, but a preponderance of the replay evidence led me to believe that it was probably a catch. One of the hardest things to determine in a frame-by-frame replay is “possession” of the ball – when the ball between Branch’s hands? Had his fingers yet flexed around it? It’s tough to tell.*** One thing is certain: incontrovertibly, the booth should have called for a review.
A lot of pundits wondered why Lee Evans’ end zone drop in the Super Bowl was not reviewed. The Branch play was much, much closer to being a catch than that one.
***The NFL needs to adopt a method by which the replay official can view a play from two angles simultaneously. How many times does an NFL replay have two elements that need to be satisfied at or by a specific moment in time? ”Was the ball out before the knee was down?”; “Was the foot still down when he gained possession of the ball?”; “Did the ball break the plane before the knee was down?” As any fan knows, sometimes one angle proves the first element, and another angle proves the second element, but there is no shot that prove both together. You can see from one angle when the ball came out, but the runner’s knee is obscured by a mess of bodies; you can see from another angle when the knee touched down, but the runner’s back is to the camera and you can’t see the ball. The when is the problem.
I’m no expert on video (despite the fortune spent to drag me through film school. Sorry, Dad). But couldn’t FOX and CBS and NBC sync all its video to one time code (isn’t its video already synced to a uniform time code?) Then, couldn’t they offer the officials split-screen, frame-by-frame video of any two angles simultaneously? There’s no way this is impossible. And there’s no way it won’t eventually affect the outcome of a big game. Like most of life’s important questions, NFL hinge on particulars of time, space, and perspective. With a split-screen, time-sensitive review of plays with multiple questionable elements, the NFL could bind the three in a way that would make Einstein blush. I know money’s not the issue. And, if the NFL wants to pretend money is the issue, slap a sponsor on it – the Budweiser “Double-Vision” Review. You know. For kids.
3. Having a first-round bye is a disadvantage. Some numbers: Since 1990-91, when the modern playoff structure was adopted (as far as two home-field byes awarded) the home team in the divisional round is 73-33. Since 2002-’03 the home team is 25-15. Since 2007-’08, the home team is just 11-9. Overall, since 1990, the win percentage for the home team following the bye is 70%. But, from 1990-02, the win percentage of the home team after a bye was a whopping 85% (41-9); and only in 1995 did the home teams in the divisional round collectively fail to win at least three of four games. From ’03-11, the win percentage for the bye team was just 58%; and the home teams collectively managed to win at least three of four games in only three of the nine years. The question is whether this discrepancy is significant. Statistically, it is probably not, given the small sample size (although, this should be confirmed by someone who can actually, you know, do math). But the discrepancy does follow a good deal of colloquial logic. Reasons for the downward trend could include:
(a.) The relative prevalence of precision-based, timing-route passing attacks, as fostered by recent pass-friendly changes in NFL rules and stricter enforcement of existing rules. See Peyton’s ’05 and ’07 Colts; and Aaron Rodgers ’11 Packers (all of whom took Week 17 off after clinching the bye).
(b.) The introduction of the salary cap in 1993, its effect on free agency. The integration of new players into a system takes time – even if these players are as good as the players they replaced, they aren’t usually that good right away. This could explain the “late surge” phenomenon that has produced many of the last decade’s Super Bowl champs. From 1980, when Plunkett’s Raiders won the Super Bowl, till 1997, when Elway’s Broncos did, no team without a 1st-round playoff bye won the Super Bowl (from 1980-89, all three division winners earned byes, and there was only one Wild Card game per conference). The ’00 Ravens; the ’05 Steelers; the ’06 Colts; the ’07 and ’11 Giants; and the ’10 Packers all won Super Bowls as teams without 1st-round byes – and they beat teams with 1st-round byes to get there. While each respective team was not the league’s most dominant team in September, winning the Super Bowl supports the argument that each of them was the best team in January. When there is a lot of player turnover, this sort of late emergence becomes much more likely. Rookies, newly added free agents, and former back-ups who step into starting roles for departing free agents, who don’t know what they’re doing in training camp, emerge as contributors late in the season. When bad players become average, average players become good, and good players become stars, the team on a whole gets much, much better. That team can, in those cases, surpass teams who would have mopped the floor with them in September, October, or November, when they amassed the wins that earned them the bye. In those cases, these wins over teams with byes are not so much upsets – at the time of the play-off game, the emerging team is actually better than the team that had the bye.
(c.) The league divisional and scheduling realignment of 2002, which turned three 5-team divisions into four 4-team divisions; and made teams within the same division play common opponents in all but two of their 16 games. The changes were made to fit two new teams – Houston and Cleveland – into the NFL. The first part – which created more, smaller divisions – increased the variance in intra-divisional strength. Strong divisions were likely to be stronger, and weaker divisions weaker, than under the old system. The second part – which brought more inter-divisional equity to the schedule, introduced three new factors with regards to the playoffs: 4 division winners per conference, instead of the three from 1990-2001; 2 wild cards per conference, instead of the three wild cards from 1990-2001; and a schedule that was relatively balanced within the division, and therefore made it more likely for each division’s best team to win the division. These three factors combined to make division battles more fierce, since Wild Cards were reduced by 50%. Also, more subtly, these factors conspired to mask terrible divisions when they were matched in the schedule with another terrible division. Each division plays one in-conference division and one out-of-conference. When relatively weak divisions (divisions whose mean expected win total is under 8 wins) are matched up against one another, they artificially inflate the records of their divisions by bringing both divisions closer to the league mean expected win total of 8 wins. Simply put, when teams from these bad divisions play one another, one team has to win, and one team has to lose. But if both teams are bad teams, really neither team deserves to win – they both deserve to lose! When this reciprocal stinky-divisional masking takes place in concert with a large discrepancy between the good and bad teams within a division, the division winner finishes with a record that is better than the actual strength of the team. Two such teams include the 2003 Chiefs (opponent record in Chief wins: 80-128) and, in concert with (a.) above, the 2005 Colts (101-123 opponent record in Colt wins).
The above analysis does not tackle the real question – is a 1st-round bye a disadvantage? Well, compared to what? Compared to what it used to be? Well, yes. Compared to the teams who have to play an extra game? Decidedly no. I mean, would a team ever NOT want to take a bye? Winning the divisional game is not – of course – the only consideration; the team with the bye essentially has a 100% chance to advance to the Divisional play-off. If that team had to play a Wild Card game, that percentage (while still above 50%, presumably) would depreciate significantly.
4. The Giants are picking 32nd in this April’s draft. I saw this on the ESPN crawl. That’s when the win sunk in. I love when the Giants pick 32nd.
5. Eli Manning is an elite quarterback. True. I am a linguist, and – thank you to my friend, and foremost Eli devotee, Satch – you cannot spell elite without Eli. He is so good at the 2-minute drill – and so literally unstoppable in the 4-minute drill – in a league where the 2-minute drill is very hard to stop (due to expanded restrictions on contact with receivers, and the quarterback***), that the Giants are within 6 points and two minutes of winning any game. Taken with the fact (above) that NFL teams are designed to be, and are in reality, competitively balanced; and are likely to play close games with close scores; the best (or 2nd or 3rd best) two-minute quarterback gives his team an enormous advantage over other teams. With age, vulnerability to injury, home field, and all other applicable factors in consideration, I would trade Eli Manning straight up for Drew Brees and Aaron Rodgers. That’s it.
***Many of the “rule-changes” I remember the NFL making are actually amendments in how the rules are enforced. I was sure that “illegal contact” was a completely new penalty, invented in the mid-2000s; I mean, I’d never seen it called before – there was pass interference, and defensive holding; evidently, it was not. A rule from 1995 outlawed using the helmet to hit ‘defenseless players’ in the head or neck. The helmet-to-helmet roughing the passer and defenseless receiver penalties that we see every Sunday owe to the expanded enforcement of that rule.
6. Eli Manning is a Hall-of-Fame quarterback. In the week leading up to the Super Bowl, I offered some loud-mouths at work a bet: 1:1 odds, I take Eli Manning inducted into the Hall-of-Fame in the next 20 years, you take that he’s not, for any amount of money up to $10,000 (I used the money total for bravado). No one took it (it’s untakeable – the duration is preposterous – any of us clowns might not have a job in two weeks – we spend most of our time at work making bets). The odds are now 1:2***. I don’t know if Eli should make the Hall of Fame; I try not to think like a sportswriter thinks. But I do know that he will.
***The only 2-time Super Bowl-winning QB eligible for the Hall of Fame who has not been inducted is Jim Plunkett. Three are currently active: Eli, Brady, and Roethlisberger.
7. Eli Manning is as good as Peyton Manning. False. He’s better. Much better. He’s six years younger, and he has the ability to turn his head up to 90 degrees each way.
8. Eli Manning’s career is as good – or better – than Peyton Manning’s career. False. Peyton Manning is one of the three best quarterbacks in NFL history. Eli Manning is one of the three best quarterbacks in the NFC East.
9. Tom Coughlin is a Hall-of-Fame coach. Tough Tom’s career winning percentage is .558. The only coaches in the Hall of Fame with lower win percentages are Sid Gillman (who modernized the downfield pass) and Weeb Ewbank (whose name is Weeb). Coughlin was Jacksonville’s first head coach; he led them to a record of 36-12 from 1997-1999, including 14-2 in ’99, and the team made the play-offs in four straight seasons, the first of which (’96) was the Jags second season in existence (an NFL best). He does not make enemies among sportswriters, nor does he make friends among sports-readers. He is not known as unique in either personality (an important component in a popularity contest) nor in football strategy; his most notable trait is his punctuality. He has won two Super Bowls. So did Jim Plunkett’s coach, non-HOFer Tom Flores. So has Mike Shannahan; not yet eligible and, unless he turns around the Redskins, not a Hall of Famer. So did Bill Parcells, who failed to make the Hall of Fame last week, in his first year on the ballot. I thought he would make it – 1:100 odds. So I’m not sure about Coughlin. Again: I try not to think like a sportswriter. (Of course, when Coach Coughlin wins his third, he’ll be a shoe-in. Let’s Go Giants!)
10. The Giants need to sign a guard this off-season. Okay, so only Satch said this to me, and he said it three weeks ago. And, after the Giants’ 4-game skid, when he wanted to put 100 bucks down on the G-Men to win the Super Bowl, I talked him out of it, so I do sort of owe him $10,000. But I went back and watched the tape: aside from the bullshit hold call on 3rd-and-1 when Wilfork fell down, and a false start, LG Kevin Boothe had a phenomenal Super Bowl. He looks trimmer (you know, than a blimp), quicker, and he’s really strong. The Pats clearly had Boothe marked coming into the game, as they lined Wilfork up over him the whole first half. In the 2nd half, they moved Wilfork over Baas to try their luck there; Boothe had simply owned the All-Pro nose tackle. Also, his combination-blocking with Diehl on stunts was great. When the Pats ran a two-man stunt against their side, Boothe and Diehl switched seemlessly. He really had a great game, and I’m glad we have him signed through next season as a player with no leverage to hold out.
11. Mario Manningham has played his last game as a Giant. True. Some desperate GM will sign him to add bling to a crappy WR corps. I saw Cincy being bandied about; a buddy of mine at work thought Cleveland. Either one sounds feasible – Oh-hi-oh, meet low-I-Q. Nice postseason beating nickel-back single-teams about 30% of the time. Thanks for the memories.
12. Brandon Jacobs has played his last game as a Giant. True. Jacobs all but bid the Giants adieu during his post-game interview on the field in Indy; when he was asked about Eli, he said he loved being Eli’s teammate. Then he added that he wished Eli, “All the best.” The Giants owe Jacobs 4.4M next year, plus a $500,000 roster bonus due in March that they won’t pay. Jacobs has expressed a desire to renegotiate; but I think the Giants terms will come under market value. Satch asked me to put a number on him; I think the Giants will offer him about 2M, little guaranteed, for one year, with escalators he won’t reach unless Bradshaw gets injured. As above, I think some desperate GM will sign him to add bling to a crappy RB corps. I think somebody will give him 2 years, 5M, half of it guaranteed.
I’m seeing/hearing a lot of political analysis today that goes like this:
Fact: a majority of Catholics (58%) are in favor of the Obama administration’s recent birth control decision.
Conclusion: therefore, the decision cannot possibly hurt Obama electorally among Catholic voters.
This is bad logic: the conclusion does not necessarily follow from the fact. And I think it’s a good example of the more general problem of extrapolating electoral effects from policy polling. So let’s go through this in a bit of detail:
Standing in front of us are 100 random Catholic voters. What do we know about them? Well, we can guess that about 58 of them support the birth control decision, and that about 37 of them oppose it (presumably 5 “don’t know” or “have no opinion.”). What else can we say about them, in regard to the politics of this situation? Well, not much. We are missing a lot of information, namely:
1. What were the voting preferences of the 58 and the 37 prior to the birth control decision?
2. What are the voting preferences of the 58 and 37 now?
In other words, what effect does an administration birth control decision have on their vote?
The reason this is so important is that elections are not about winning majoritarian approval for individual policy decisions; they are about winning votes. At the micro-level, the relationship between the two things is a simple equation: how many net votes did a particular policy action gain or cost you? If it gained you aggregate votes, then electorally it’s a good thing. If it didn’t, it’s not.
The problem is that we don’t know how many Catholic votes the birth control decision gained or lost. For example, if all 58 of the supporters were going to vote for Obama as of last week, but 20 of the 37 in opposition were previously going to vote for him but have now changed their mind, then the net results is 20 votes lost. The opposite scenario — in which all 37 opponents were already not going to vote for Obama, but 20 of the 58 supporters of the decision were previously going to vote Republican but now will vote for Obama — is also possible. That’s a net gain of 20 votes. More reasonable numbers can be plugged in for the underlying support and the patterns of switching, but the result is the same: the aggregate level of support for the policy itself is more or less irrelevant.
And that’s the key here: the level of support for a policy choice may be correlated with electoral support and/or net change in electoral support, but it doesn’t have to be. The only way the poll numbers could be definitive is if we knew all Catholics were single-issue voters on this policy question. But they aren’t, so we need more information about how the decision affected both Obama’s supporters and his opponents. Ask yourself which is a bigger number: the number of Catholic Obama supporters who might turn against him over birth control, or the number of former Obama opponents who might become supporters over birth control. I have no idea what the answer is, but those two numbers combine to the net electoral number, and that’s the number we are interested in.
Opinion polls can be quite deceiving in this manner. Imagine you are a liberal Democratic President and you see a poll that shows a decisive majority — say 70% of Americans — wants to legalize medical marijuana. On it’s face, looks like a really smart electoral move to come out in favor of medical pot. But be careful: there are almost certainly voters who supported you in the past on both sides of this issue. And there’s a strong possibility that more former supporters will desert you over the issue than former-opponents will join you. Probably want to get more data before you make a decision. (Or, more likely, just sidestep the whole thing. Sigh.)
Lurking behind this is the issue of intensity of preference. Ask 100 people how they feel about some policy issue, and you’ll find that some oppose it and others support it. But only a small portion of those people will consider it relevant to their vote choice on election day, and only an even smaller fraction will be single-issue voters on the subject. When those intensities are not evenly distributed among the opinion, that’s a good recipe for the electoral effects to be strongly skewed in reference to the policy opinion numbers. Fifty-eight of our Catholics support Obama’s birth control position, and 38 oppose it. But what if only 10% of the supporters see it as a key electoral issue, while 50% of the opponents do. I have no idea if those numbers are correct, but it’s not insane. That could (potentially) make for an electoral problem for Obama.
Now, there are a million caveats to keep in mind. First, I’m just pointing out a logical error; I have no idea if the decision will help or hurt Obama among Catholic voters. I just know we can’t know from a poll of Catholic support for the decision. Second, in some ways it doesn’t matter how it affects Catholics, because they aren’t the only voters. Even if the decision hurts Obama among Catholics, it might be a net positive if it gains him votes among other demographic groups. Or vice-versa. At the ballot box, demographics don’t matter. You just want the most votes. Third, policy decisions affect more than just voting preferences; everything from campaign donations to volunteer labor can be gained or lost. And those things have important effects on electoral outcomes.
The fourth factor: good public policy
I’m going to shift gears and go long-form on the fourth caveat, which is policy decisions aren’t just made for electoral reasons. Sometimes, good public policy is the goal! There seems to be a strange and increasing trend among Washington journalists and others to seriously discount the “good public policy” component of party goals. Part of this is a traditional media frame: it’s much easier to cover the horse-race electoral aspect of politics than the substantive policy side of things, and it also allows for an easy neutral story line that is less readily available when policy comes into play. But part of it is something quite new; there seems to be an increasing belief that the only measure of party success is electoral victory. I read story after story talking about how the Democrats failed in the 111th Congress because they lost so many seats in 2010, and how they are continuing to fail in the 112th because they are likely to lose seats in the 2012 election. It’s pervasive.
This is what, in political science, would be called a Downsian view of parties: they exist only to win elections, and their platforms are formed only with that goal in mind, the resulting public policy utterly incidental to the goal of winning the next election. It’s not a bad view of politics; in fact, it’s quite instructive for thinking about (small d) democratic politics, but it’s obviously a model. It’s not intended to suggest that becoming singularly concerned with winning elections is a good prescriptive frame for a party or for partisans.
So what’s the problem with this outlook? I think the main problem is that it misplaces the long-term policy goals of parties. As I’ve discussed before (here and here and here), one of the weaknesses of democracy as a form of government is its inability to undertake long-term planning. Here we have a related problem: parties and partisans tend to undervalue long-term policy successes. The increasing belief that success is equal to seat maximization in the House adds to this problem. Health care serves as a good example. The Democratic Party has been seeking to federalize some form of universal health care for the better part of a century. All of a sudden they are faced with the prospect of being able to do so, but at the expense of losing a pile of seats in Congress and their majority in the House. It’s easy to see why that would freak out any individual Member — would you want to give up your job to pass a policy that might not even be your top priority? — but it’s less easy to see why it should bother the party. Trading 65 House seats to enact a policy that it has been chasing for 70+ years seems like no big deal, so long as a few conditions hold:
1) The party thinks the policy is good long-term policy and politics
2) The party things they will be back in power in a reasonable length of time
3) The party thinks the policy will not be reversed when they are out of power
It’s undoubtedly true that the Democrats believe number 1, and all historical precedents show that number 2 is true (if they survived the Kansas-Nebraska Act, the Democratic Party can survive anything). The third tenet is more problematic. From an individual perspective it’s probably decisive. It’s one thing to give up your job for a public policy outcome; it’s entirely another to give up your job for a public policy outcome that is repealed immediately following your election defeat. (Of course, all of these things are probabilistic; you will lose re-election at probability X and your policy will be repealed at probability Y and those are both numbers you can estimate and base decisions upon). The same logic probably holds from the perspective of the party.
Think this through for a few moments. If you’re a liberal, ask yourself: how many years would I give up control of Congress and/or the Presidency in order to get the health care bill I like? Likewise, if you’re a conservative, ask yourself: how many years would I give up control in order to achieve substantial Medicare reform, or social security privatization. It seems to me that these partisan goals are easily worth giving up power for two or three Congresses (conditional, of course, on not being repealed). And once such actions are taken, it strikes me as silly to bemoan one’s electoral condition subsequent to the policy. Example: President Obama’s two signature initiatives of the 111th Congress were the stimulus bill and health care reform. Both were controversial at the time, both passed, and now you have many liberals bemoaning the President’s electoral circumstances. But why? This is a fine example of a party campaigning on a platform, enacting the program, and standing for re-election. Would you rather not have the policies? That seems (from a liberal perspective) silly.
One argument I will hear counter to this from liberals is that they are paying the price for a stimulus plan that (a) was necessary as a response to circumstance; and (b) staved off a depression but didn’t reduce unemployment, and thus looks like a failure to the median voter. In effect, they feel wronged because they enacted a policy to clean up someone else’s mess, and then when the marginal effects weren’t visible in the absolute indicators, the someone else blamed them for bad policy. That may be so. But I pose the question to liberals on their own terms: take your own counterfactual — global depression — and ask what your electoral fate would have been under those circumstances. I see exactly no possibility that President Obama and Speaker Pelosi would be in power come January 2013 under the condition of 25% unemployment beginning in 2009. Governments do not survive depressions that set in on their watch.
There are institutional factors that mediate all of this. In a strict parliamentary system, reversal of policy is much more cut and dry than in a Presidential system, especially when the election in question is a mid-term. There’s also a stickiness to public policy that makes reversal much less likely as time goes on. If a policy is not immediately reversed, there is a strong chance that it’s implementation, if even moderately successful, will reshape the issue space such that future adjustments to the policy will be just that, adjustments. This hold across a wide variety of policies — entitlements, taxes, social policies — that are often subject to strong proposals for radical adjustment, but rarely attacked fundamentally for repeal.
Another mediating factor is the lack of counterfactual knowledge implicit in these decisions. Health care reform provides an example again. Just about everybody knew by the end that the Democrats were going to lose seats in the House. And there was good circumstantial evidence that those losses were at least partially attributable to the health care debate in ’09 and ’10. But there were a fair number of liberal voices arguing by Spring ’10 that not passing the bill at that point was going to cost more seats than passing it. Similarly, polling evidence seems to suggest that Republican House Members might pay some electoral penalty by voting for the debt limit increase. But the counterfactual — how much of a penalty would they pay by not voting for it, given the unknown consequences of doing that — is unclear. And therefore determining the marginal effect of these sorts of decisions is very difficult, even at the individual level. At the party level, it’s immensely complicated.
And so all of this tends to interact with the various theses you hear from your friendly academics, journalists, and crazy uncles, regarding polarization and partisanship and all of that. It seems to me that one of the axioms of modern intellectual centrism is that policies which tend to hurt a party’s electoral chances are inherently bad policies. I think this is wrong, and probably disingenuous. For one, it collapses the idea of representation into a pure delegate model of Member behavior. That seems normatively wrong. But it also comes off as very self-serving, as the delegate model is often the strategy picked by the centrists, as they tend to come from swing districts and their incentives are strongly aligned with very carefully reflecting their constituents and often avoiding difficult choices.
Parties which take strong positions and stick with them may lose election. But they also have the ability to enact significant policy. While these two things always require a balancing act, I think it would be wise for parties to seek institutional structures and procedures which fight against the tendency to equate electoral seat increases with good policy choices. So many forces in a democracy inherently tend toward this line of reasoning, and it would well serve programmatic-oriented parties to be cognizant of, and institutionally resistant, to such tendencies.
The 9th Circuit Court of Appeals has struck down Proposition 8, effectively legalizing gay marriage in California.
For the libertarian reasons I’ve outlined in depth here and also defended here, I don’t think this is the optimal way to address the issue of marriage inequality; it takes a set of special government preferences (for heterosexual married couples) and extends those benefits to a wider group of people (heterosexual and homosexual married couples), while leaving enormous pools of people short of the benefits (single people, people who prefer polygamy, and the huge and growing group of long-term monogamous cohibatators).
It’s kind of like if the civil rights act had said “no discrimination against blacks” instead of “no discrimination on account of race.” Not a bad thing, by any means, but hardly a statement of universal equality on the issue of human sexual relationships.
I believe the only legitimate solution to this is to completely decouple marriage and the state. In other words, abolish all state benefits for any marriage, — gay, straight, polygamous, or otherwise. Anything short of that leaves in place a system in which the state preferences, incentivizes, and legitimates some human relationships over others. Human sexual relationships exist prior to the state, and the state has no business promoting some and not others.
My brother-in-law and his girlfriend live virtually the exact same lifestyle my wife and I do, in all respects. Why we should have a myriad of financial government benefits that they lack, simply because we signed a piece of paper the state wrote, is a question that has no plausible legitimate answer. Allowing homosexuals to sign that same paper is certainly benevolent, but hardly equal.
The Sunlight Foundation has slogged through two quarterly House Statement of Disbursements reports to produce a nice piece on staff turnover in the House. Endlessly interesting to think about. Go read it.
I don’t mean the following as a harsh critique — I really liked the study and, having done my share of research in the Statements of Disbursements, I have a professional respect for anyone who dares sit down with them — but I have three concerns:
1. I’m not sure I buy into the theoretical importance of turnover, per se. Here’s the SF’s theory:
Retention rates affect how well members of Congress can do their job, since they rely so much on their staff. And as any manager in the private sector knows, high turnover undermines organizational effectiveness. Hiring and training new staff takes substantial time, and institutional knowledge is frequently lost in the process.
Offices with less experienced staff and less institutional knowledge will generally be less competent. This makes it harder for members to execute their legislative priorities and makes them more likely to rely on lobbyists and special interests for guidance. It may also make it more difficult for offices to adequately serve constituent needs.
I’m skeptical of this turnover-effectiveness link. It makes sense in theory, but I’m not sure how applicable it is to the Hill, which is a strange employment market / work environment if there ever was one.
One feature of the Hill job market is that lots and lots of people who leave an office on the Hill do so in order to take a job in another Hill office. It’s probably the exception to hire from the outside for anything but the entry-level staff assistant jobs. I think it surprises a lot of people how much hill staffers jump around, especially at the lower levels. Some people seem to think that most hill staffers grew up in the district for which they work, but that’s not at all the case. It’s not uncommon for someone to have interned at one office, caught on as a staff assistant at another, and landed as an LA at a third office. My experience/intuition is that senior staffers do less of this, but it’s still common. The culture of the Hill makes it more or less normal for everyone to always be looking (or at least open) to a new job in a different office.
Now, even if the turnover is strongly driven by people moving around a lot, that’s potentially bad for the individual Member offices. But I don’t think it’s quite as bad as the study suggets. Despite co-existing like 500+ small businesses on the same campus, the individual Member offices tend to have a lot of functional and cultural overlap. And they are definitely completely intertwined professionally. Enough so that if your education LA leaves, you don’t exactly have to reinvent the wheel to hire a senior staff assistant to fill that role, whether you get him fr0m your own office or another. There’s enough commonality to the Hill (the campus, the day-to-day happenings) and the individual offices (chains of command, typical job description of the education LA) that, yes, it’s a transition, but no, it’s not a huge shakeup to an office. In fact, many policy staffers spend as much time talking to staffers from other offices as they do talking to staff from their own office.
What it comes down to, I think, is that I’m not sure the individual offices can be seen as different firms for the purposes of asking how turnover affects them. The institutional knowledge and/or experience with an individual office is not nearly as important as institutional knowledge of the Hill as a whole. Think about it this way: if I had a legislative director who had been on the Hill for five years, all of them in my office, and then he left and I replaced him with a senior policy adviser who had been on the Hill for 7 years in three different offices, that might actually be a net positive for my office on the experience and knowledge dimensions. For the Sunlight study, it’s simply more bad turnover. Same thing with our education LA. If you get someone making a lateral move who already covered education, the deadweight loss strikes me as almost nothing. It’s not a similar job in new circumstances; it’s really the same job with a new supervisor.
Again, this doesn’t damn the study at all. But the key variable I think we want to know is missing: how many people, in aggregate, are leaving the Hill and being replaced by new faces that have no Hill experience. My intuition is that it would be much more interesting to get a feel for total Hill turnover. I’d much rather see, for instance, the total number of years on the Hill for the staff of an office. Turnover might proxy that, but we really don’t know. After all, if we want to measure experience and institutional knowledge, we should measure experience and institutional knowledge, not how that knowledge and experience is moving around within the system.
2. The study cuts through the 2010 election, comparing employment data from before and after. Unfortunately, the 2010 election — in which 90+ House members were replaced by new freshmen — was an unusual event for Hill employment. Not only were there 90 offices worth of staff looking for jobs, but they were disproportionately on one side of the partisan divide. As a result, you had the following employment situation: lots of Democratic staffers in the Member offices and committees out of work, with a very tight market for Democratic Hill jobs, and lots of Republican job openings in both the offices and committees, but very few Republican staffers out of work. Result: lots of Democratic staffers leave the Hill; lots of Republican staffers get promotions to go work in a new office; and lots of Republican staffers come to the Hill for the first time.
In short: lots of turnover. In fact, perhaps — and this is just a guess — some of the highest turnover in history. Now, this doesn’t damn the story about relative turnover between offices, but it does gum things up a bit. I would guess that it has something to do with the partisan turnover differential in the study. The cascading effect of all the job openings in the new Republican offices probably churned up a lot of turnover, and almost certainly a disproportionate amount, among offices that existed both before and after the election.
3. I don’t think staff spending is a good measure of representational effectiveness. The SF study notes that higher paid staff are less likely to turnover. That seems about right. And it probably follows that a member could slow down turnover by increasing his staffers’ pay. But it doesn’t follow from this that an individual office can more effectively represent its constituents by increasing staffer pay. And that’s because offices are working on a fixed budget, the Members Representational Allowance (MRA). Any increase in money devoted to staff has to be balanced against the corresponding loss of resources for other office activities.
What else does the MRA fund besides staff? Three general categories: office expenses like office supplies and district office space leasing, travel back to the district for the Member and staff, and franked mail for constituent communications. To the degree that any individual Member is maximizing his budgetary efficiency, an increase in staff pay will generate a resource loss on this side of the ledger. And if a Member is maximizing his efficiency, then he has already struck the balance he thinks proper. And if you don’t think Member are maximizing their budgetary efficiency, well, that only raises the question of whether more money can actually solve anything. I suppose one response would be to increase the MRA for the purpose of increasing staff pay, but that’s quite a hard sell in the current budget climate (the MRA has been cut in recent years).
Quite unexpectedly, I found myself in a very interesting situation Sunday morning: listening to an overtly political sermon at church. Based on the reaction I saw in the congregation, I think it might be a very big deal. It was absolutely the talk of the congregation on the way out of the building when church let out.
Now, I grew up in a unabashedly milquetoast Methodist church. My grandfather was the pastor when I was a boy, and my uncle wast the pastor when I was older, and I cannot remember either of them ever giving an even remotely political sermon. These days — despite more or less subscribing to an agnostic Quakerism in my personal beliefs about theology and church institutions — I go to a suburban Catholic church, since my wife is part of the One True Church and, only God knows how, my kids ended up part of it too. On average, pretty much any Catholic priest will tend to be slightly more political in his homilies than some pastor at a liberal Methodist outfit in upstate New York, but your odds of running into what I ran into yesterday — an all-out political assault from the pulpit that you might associate with conservative evangelicals or fundamentalists — are extremely low at a Catholic mass at a not-particularly-conservative Catholic church. So part of the reaction and buzz was probably due to the unusual nature of the message.
It definitely took me aback. I was out in the hallway walking around with Abigail, who had gotten restless in the pews, and we were listening over the PA system as the homily started. And right out the gates, the normally-restrained priest — whom I had never really heard give a political sermon of any sort — just started going to town on the Obama administration, over the HHS decision to leave in place the rule requiring church-affiliated institutions to offer birth control services as part of employee health packages. And he didn’t let up. He talked about church and state, the founders, the role of Catholics in building this country, and even, if I remember correctly, called the decision a “slap in the face.” Abigail and I nearly ran back into the pews at that point, because I wasn’t going to miss this rest. When I sat down, I leaned over to Sarah and said, “Can you believe this? I’ve never heard anything like this here,” and she was in complete agreement.
Now, I’m not particularly interested in the substance of the debate. I’m personally very supportive of birth control access, particularly to the degree it lowers the abortion rate. And I know only a few Catholics (and no Protestants) who are absolutely against artificial birth control. As a libertarian, I’m not a huge fan of government dictates over health policy like this, but that’s a general complaint and has nothing to do with the church’s particular issue here. What I am interested in, however, is the political power of the church to swing voters over things like this. Like I said, the vast majority of Catholics I know are probably happy that birth control can be part of their health care plan, and while many of them probably have reservations about forcing Catholic hospitals and schools to offer it to their employees, I don’t think it’s a big enough issue to affect the vote of very many.
On the other hand, if you can convince a lot of Catholics to vaguely understand themselves as catholic voters, and then convince them that the Obama administration is anti-catholic, that strikes me as potentially a very big deal. For both ideological and socio-cultural reasons, Catholics have long been a strong part of the Democratic coalition. And definitely have (in the past) supported Democratic candidates at a greater rate than the rest of their demographic backgrounds would suggest. It’s also true that Catholics in America — particularly older Catholics outside of the northeast — still identify with past anti-Catholicism and the group solidarity that came with such discrimination. Yes, Kennedy was elected 50 years ago; but he’s still the only one who made it, in a nation that’s about 1/4 Catholic. In effect, I think it’s probably easier to get Catholics to think of themselves as religious group members for the purposes of voting, in comparison to, say, Methodists or whatever.
Now, that’s just conjecture. But if it’s true, what I saw on Sunday is not good news for the Obama administration. Walking out of the church, all people were talking about was the homily. I heard one man say, “Obama had to choose between the Catholics and his other supporters. And he didn’t choose us.” I overheard someone else say, “It’s like he’s doing this just to spite us.” I heard a lot of people — including my wife — express complete surprise that the new rules might force Catholic hospitals to make tough choices, or even shut down if they didn’t want to bend their beliefs. Put it this way: I’m fairly confident 80% of the people in that church on a given Sunday couldn’t even tell you what the homily was about. But yesterday, it was pretty clear that all of them got the message. And the message was “Obama is making unnecessary and unprecedented decisions that hurt the Catholic church’s ability to help people.”
That’s exactly the attitude that Obama can’t afford to foster. Now, I don’t want to make too big a deal out of this. In part because I’m obviously dealing with one anecdotal account of one mass on one Sunday a year before the election. And also because who knows how much mileage Obama will get from other groups who are happy about the decision. And maybe this will all fade by the election anyway. But it sure seems like something that might cause an unexpected problem for the President. Like I said, I’ve never seen a political discussion at this particular church before. But what I did see on Sunday was not a good sign for the Democrats.
After the Giants got their final first down last night, setting up first and goal, I tweeted the following:
Twenty years ago, neither team manages the clock correctly in this situation.
I was both right and wrong. The situation was the perfect moment to put the modern advance in sports strategy on display. There was just enough time left to almost run out the clock, given the two Patriots’ timeout remaining. The Giants were down exactly two points — down three and they’re trying to score a TD, down one and they’re arguably trying to score 8 to get a full touchdown lead. And the defense was being coached by a man who was almost certainly aware of the strategic implications. That it happened in the Super Bowl was almost too good to be true. If both teams had played 1st down perfectly, it would have become the poster-child for the advancement of strategic thinking in football.
As it turns out, the Patriots did play it (almost) perfectly — they opted to let the Giants score on second down, so they could get the ball back (they probably should have done that on first down, to preserve their other timeout). The Giants, on the other hand, arguably made two mistakes. One was Bradshaw not being able to stop himself on the 1-yard line. The other was the decision to run the ball at all; they could have just knelt on it three times at the seven at kicked a 24 yard field goal with very little time on the clock.
But let me be crystal clear here: with 1:09 left, 1st and goal, down two, opposition with 2 timeouts, it is absolutely correct strategy NOT to score a touchdown. Whether you try to get closer than the 7-yard line is debatable — it depends on the relative success rate of 24 yard field goals vs. 18 yard field goals, as well as the probability of fumbling in both scenarios — but you certainly don’t want to get in the endzone. The theoretical math is very easy: if you kneel three times, you will be able to kick a field goal with, at most, about 20 seconds left on the clock (and probably less, since the kneel-downs take more time than you think, and can be prolonged). Even if you do run a real play, you absolutely stop on the 1 yard line and do the same thing. If you score the touchdown on first down — which you will if your opponents are correctly letting you score — the opposition will be down either 4 or 5 with about a minute to go, with two timeouts. So the question is simple: which is more probable — missing what amounts to an extra point, or Tom Brady leading a touchdown drive in 1 minute with two timeouts?
It’s not even close. You kneel and kick. Or stop on the 1 yard line. League wide, 99.4% of extra points were made this year. The Giants were 45 for 45. You think Brady has less than a 0.6% chance of leading a TD drive with a minute and two timeouts? Not a chance. According to the NFL win probability stat, the Pats had a 4% chance to win when they got the ball back. And they only had 1 timeout as it turned out. And win probability doesn’t take into account the individual team, or whether or not you have Tom Brady. Here’s the thing: football is a zero-sum game. If Belichek was correct to let the Giants score, then by definition the Giants were wrong to get into the end zone there. And vice-versa. By the above math, the Giants gave the Pats roughly 24-1 odds to win, when they could have made it roughly a 199-1 chance. That’s right: by getting in the end zone, the Giants increased their chance of losing roughly eightfold. (This math doesn’t include what the Pats could do with 10-15 seconds and no timeouts, down 1, after your field goal and the ensuing kickoff. But that’s virtually negligible, especially without a timeout to get the kicker on. They are basically reduced to a hail mary from their own 20. If you want to give them a 1% chance of winning that way, go ahead, it doesn’t change the strategy).
After the game, Coughlin admitted he didn’t send in the order for Bradsahw to try to stop on the 1-yard line — that was Eli. Instead, Coughlin said he actually wanted the touchdown there, arguing that no kick is ever guaranteed. Bradsahw said basically the same thing. That’s almost the perfect expression of risk-averse coaching, which is a huge problem in the NFL. If you deviate from conventional wisdom — no matter how much it increases your probability of winning — and it doesn’t work out, you get killed by the media and popular opinion. Consequently, coaches have incentives not to maximize their chances of winning, if doing so has them implementing unconventional strategies that will be criticized (nad possibly get them fired) if they fail. If the Giants had somehow blown a field goal and lost the Super Bowl after Bradshaw knelt on the one, Coughlin would have been (incorrectly) buried by the media. But if they score the TD and then the Pats come back and win, that would have been (wrongly) seen as not quite so bad: we did everything we could, but they beat us.
It’s horrible logic, but it still holds in popular perception. Let me repeat: the Giants hurt their chances of winning last night by scoring that TD; the actual outcome doesn’t matter when evaluating the strategic decision. But perhaps the conventional wisdom about these things will not hold for much longer. Last night definitely exemplified how dangerous the traditional decision can be, and there’s actually a debate going on today in the popular press that leans toward kneeling and kicking. Twenty years ago, that debate would not even have existed; no one would have dared even consider not getting the TD.
[I promise to get back to the libertarian-blogging next week; I just got less writing time than I hope these past few days.]
I’m still quite stunned by the GOP primary contracts at Intrade.
As of this writing, you can buy Romney for 89 cents on the dollar. Now, let me be clear. I’m not saying that’s a solid value play. I’m saying that’s an incredible value opportunity, a potential 21% annualized return on any money you invest now (the contract expires at the convention, which is just under 7 months away).
It’s even scarier to see it expressed as a time series. Here’s a graph of Romney’s Intrade closing prices since December 28, when I made a public declaration that the race was, for all intents and purposes, over.
So what is going on here; why is Romney so seemingly undervalued. I see a few things. First, two legitimate issues:
1. There’s some (small) chance he loses the primary. This isn’t a risk free investment — Romney could still be beaten, straight-up — but the odds of that are simply nowhere near 11%. Not a chance. But they are something. I don’t think they are greater than 1-2%. So let’s call it that, 2%.
2. Something could happen to Romney. People do die, and massive scandals do happen. Upon occasion. One way to estimate the marginal probability is to look at President Obama’s Intrade number for winning the Democratic nomination, which may incorporate things like the probability of death or massive scandal, but certainly does not include any chance of losing the nomination in a competitive primary. The President’s number is 97.7%, which means that it’s probably safe to say that in the case of the GOP primary, those last 2.3% are systemic, not anything to do with Romney himself. I have the 97.7% line marked in red on the graph; that shaves another 2.3% off his chances.
And now, three irrational issues (i.e. money-making opportunities):
2. Market distortions, mostly longshot bias. That 2.3% from above isn’t all about something happening to Romney. It also contains at least one market distortion: longshot bias, which I wrote about last month. This is a well known empirical finding of economics research into gambler behavior: gamblers like to bet on longshots rather than favorites, in part due to psychological utility of hoping for big paydays and in part due to cognitive misunderstanding of large numbers. The upshot is that it attenuates the odds whenever the odds are set by the market, be it at the Saratoga Race Course or on the Intrade political market. But, as I said, this is built into the 2.3% we’ve taken from Obama’s Intrade Odds. That’s why the red line on the graph is labeled “Act of God + longshot bias.”
Still, there are a few other market distortions worth noting here: for instance, the market might itself have an influence on the outcome of the race, and thus partisan backers of one candidate or another might have reasons to manipulate it. I don’t think a lot of people are looking to Intrade to see if the race is over, but would it really be that bad of an investment for the Gingrich or Santorum campaign to spend a few thousand dollars driving down the price of Romney? It’s not a huge-volume market. It couldn’t hurt. If there are voters or journalists out there who are using Intrade as a cue, then it might actually be a very smart strategy.
3. Actors incentives to continue to make it a race. As I’ve written before, virtually everyone — but particularly the media — has a strong incentive to portray the race as not over. That is probably playing a role here, even if its just putting a hint of doubt into people’s minds.
4. The polling. There was a long (and wonderful) nerdfight earlier this year on the internet over the relative importance of polling and, on the other hand, fundamentals like money, organization, and party actor endorsements in predicting the outcome of elections. My personal opinion is that in primaries, both are relevant, but fundamentals are more important. Others disagree. But anyone who puts more weight on polling is bound to see the race as still not in the bag. And that’s probably a sizable percentage of people, even in the chattering class. I mean, just look at that graph. It follows the media narrative and state-by-state polling to a ridiculous degree.
So, in sum, I think it’s something like this: Romney is at 88.7 right now. If he were a lock absent the act of god, he’d be around 97.7 or so, but that contains the longshot bias, so there’s some value in there. But call it 97.7 So we have to explain about 9% among other market distortions, actors actively trying to make a race where there isn’t one, people putting too much reliance on polling and not enough on fundamentals, and Romeny’s actual chance of losing the election in some way other than death. I’m of the mind that the vast majority of the 9% is illusory (as I said, I would estimate his true chance of losing at less than 2%). How you divide up the rest is probably a question of philosophy, or at least a better social scientist than I.
But make no mistake about it, this thing is over. And people who refuse to believe this are handing out cash right now on Intrade. Not, of course, at the 21% annualized return we discussed above, that would be if we knew Romney was 100% to win. But by the back of the envelope we’ve done here, it’s at least a 12% annualized return, plus (12/7) * whatever the longshot bias is. Needless to say, my recommendation is, as it has been, BUY.
There’s a long and well-known literature in political science that say Members of Congress have three goals: re-election, increasing their internal power within the legislature, and making good public policy for their constituents (For example, see Fenno). In general, the re-election goals takes primacy, because without it, the other two become unattainable. And contrary to what your cynical uncle says, that’s probably a good thing: if Members did not concern themselves with getting re-elected, both the theoretical and practical underpinnings of republican representation tend to fall apart. This is not the kind of political science that is much up for debate; at this point it’s more or less self-evident to everyone. But it does leave a whole bunch of black boxes, namely how do you achieve any of those three goals?
Sometimes — especially when the three goals align together — it’s easy. You think policy X is a great idea, your constituents love it, and your party leadership not only loves it too, but they want you to lead the political fight for it, and they will reward you down the road for your leadership on the issue. Couldn’t be any easier. When it becomes interesting, however, is is when the three goals come into conflict: when increasing your power in the chamber means casting votes that hurt your re-election chances; when making good public policy for your constituents goes against their own perception of their interests (and thus your re-election chances); and when increasing your power in the chamber necessitates accepting bad public policy. It’s even harder when you factor in the endogeneity — sacrificing your constituents’ wants for more internal power may ultimately benefit your constituents down the road.
How Members make decisions when these goals come into conflict is perhaps the most interesting aspect of congressional behavior. Still, this doesn’t tell us much about the actual fieldcraft of power accumulation in a legislature. Imagine you are a freshman backbencher in a legislature, doesn’t matter if it’s Congress or just the town council. How do you go about becoming powerful?
I think there are two general strategies and skills: adding value and extracting value. Both are consequences of the institutional context of a legislature, which I think has the following key features: power is distributed asymmetrically, Members have long-term repeated interactions, and very few people can make things happen without help from others. Consequently, Members — even powerful Members — need to bargain with others in order to achieve any of their goals. This results in what James McGregor Burns calls “transactional leadership,” the trading of something of value in return for something of value.
So when I say adding value, in the most basic sense this simply means your vote on the floor. And on the bare face of it, this is all the freshman backbencher has at his disposal to bargain with. Is there another Member who’s help you need? Almost assuredly there is. What can you give them? Well, you can be loyal to them with your vote. This is, as most people know, a very common relationship between the leaders of a legislature and their partisan freshmen. The freshmen provide loyal votes — even if it goes somewhat against their constituents or their own thoughts on good public policy — and in exchange the leadership provides all the usual resources that come from holding a position of power in the legislature: desired committee assignments, help moving district-related legislation or earmarks, opportunities to speak on the floor or sponsor high-visibility bills or amendments, and perhaps help raising campaign funds for the next election. And so on and so forth.
But, of course, votes are not the only way that a freshman can add value, they just happen to be the formal power that comes with the office. Outside of the formal power lies an endless list of resource externalities that can be translated into added value. This includes personal attributes of individual legislators: are they smart? hard working? politically savvy? natural leaders? All of these things can add value to someone else’s pursuit of a policy agenda, which can result in transactional benefits to the possessor of the qualities. If you are capable of working endless 20-hour days to help someone else achieve their goals there is little doubt that you will build up an enormous amount of chits from them for future use. Even more importantly, you will develop a reputation that brings future clients to your door looking to put your value-added to use for them, and willing to trade you some present or future chits for that value.
But freshmen backbenchers can also develop resources that can create value added. Two examples of this are fundraising prowess and policy expertise. Both of those are highly desirable types of added value, and both (within limits) can be developed without relying on others. If you can begin your legislative career by raising twice as much money as you need for your first campaign, you will have cold hard campaign cash to donate to other Members. If you can turn yourself into an absolute wonk within key policy areas, you will be helpful in developing legislation, and in selling it to other Members and the public. Both of those commodities are highly desired by other Members, and you will be rewarded handsomely.
In short, in order to accumulate power, you need to provide scarce resources to those who are in positions to help you in return. But that’s not good enough: providing resources in exchange can get you things, but to develop long-term power, you need to trade immediate resources for continuous power. Logrolls to get your preferred legislation are certainly nice, and certainly can help you get re-elected. Loyally voting for the leadership can do the same. But they do not help you accumulate internal legislative power (at least not beyond the power that flows from pure seniority). What you need to do to accumulate internal power is trade immediate added value for lasting power. Tireless work on a bill in return for strong consideration for a good committee assignment. Loyal votes even in the face of your constituent preferences in return for an entry-level role in the caucus. These are the types of things that can get your power snowballing — using your added value in exchange for things that can themselves generate value added. To use an economic analogy, it’s the difference between labor and capital. Wages are good, but owning the company is better.
And that brings us to extracting value. As a backbench freshman, you definitely have your vote. But what is your vote worth? What can you get in exchange for it? Those who can get a lot are good at extracting value; those who cannot get much, or who give it away free, are not. Seems like a simple principle, but it is sure as hell not easy to put into practice. Maximizing the value of your resources is incredibly tricky; it’s like being good at poker, you need to be able to play the game well, and you need to be an astute reader of people and possibilities. Some people are good at it, and get a lot in return for their added value; others are fantastic at it, and get a lot more in return for their added value.
Creating value where there seems to be none is even trickier. There are those, however, — former Rep. Rostenkowski comes to mind — who were masters at extracting value by creating it, whether it was from other legislators or external political players like lobbyist and party actors. Rosty had a simple maxim on how to extract value out of thin air: figure out what the hell you want to do on some issue, and then get someone to reward you for doing it. That’s where the value is, precisely because there’s no downside; you already made your decision because it was the best thing for you, period. Now go get someone to pay you off for doing exactly what you were going to do anyway. No fuss, no muss. Every time you make a decision, someone was hoping you would do what you did. Get them to pay for it. Even if it’s just a tiny favor. Plain and simple.
This is one reason why I have always believed that the effects of political lobbying are overrated. Legislators have every incentive to string lobbyists along even if they already agree with them. Lobbyists provide all sorts of resources to legislators: information about policies, talking points for speeches, entire bills that can be introduced, staff support that can be called upon in a pinch to augment existing human resources. And so legislators love being lobbied hard. By all sides of an issue. And the upshot is twofold: first, legislators have a strong incentive to be coy about their positions on various decisions. Indecision — at least the appearance of indecision — is the key to maximizing extracted value. Second, extracting maximum from thin air requires a credible threat to make an alternative decision. You can’t pretend you are on the fence about something if you are not. People with 100% pro-choice ratings aren’t great at extracting value from thin air on abortion issues.
Which creates a dual-track system for approaching decision making. If you are faced with a legislative choice, figure out what you want to do. If you have no credible commitment to do the opposite, then your only chance to add value is to marshal what resources you have (your vote + the external resources you possess) and work to maximize your future rewards based on your immediate help. If you do have a credible commitment to do the opposite, then you might be better off sitting on the fence and seeing what offers come your way for you to do what you were going to do all along. Obviously, the moderate Members of a legislature spend a lot more time doing the latter, simply because they are much more often in the position of having a credible commitment to go either way on an issue.
A while back, there was a movement afoot to require Members of Congress to certify that they had read a bill prior to it being voted upon, stemming from concern that Members sometimes did not know what was in legislation that they were passing. There are lots of reasons to think such a requirement would be silly, but from my perch, the one that comes to mind first is that legislation is often written in very technical and referential language. This is one of the reasons that bills in Congress are usually required to have committee reports attached to them — so that Members and the public can have a plain-language explanation of the contents of the legislation.
There’s is a good reason that the bills themselves iare not drafted in plain language: bills must be precise and consistent. Both the House and the Senate have Offices of the Legislative Counsel, which work with Members and Committees to draft legislation. Members or staff can come to Leg Counsel with plainly written ideas for laws, and Leg Counsel will work with them to translate their ideas into precise legislative language, or to help them determine which aspects of existing law need to be revised in order to accomplish with the bill what they intend.
At any rate, I thought it might be useful to read through a very short bill today, to illustrate how complicated it can be to understand a bill if all you have is the legislative text itself. Below is the full text of H.R. 3835, which was debated in the House this afternoon under suspension of the rules, and is expected to pass when voted upon (the record vote was postponed by the Chair under rule XX, clause 8). The bill would extend the current pay freeze for federal employees for an additional year, as well as extend the pay freeze for Members of Congress. Give the bill a read through, and then I’ll go through it with annotations below (I’ve removed the title, sponsor, session, and referral information from the bill).
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. EXTENSION OF PAY LIMITATION.
- (a) In General- Section 147 of the Continuing Appropriations Act, 2011 (Public Law 111-242; 5 U.S.C. 5303 note), as added by section 1(a) of the Continuing Appropriations and Surface Transportation Extensions Act, 2011 (Public Law 111-322; 124 Stat. 3518), is amended–
- (1) in subsection (b)(1), by striking `December 31, 2012′ and inserting `December 31, 2013′; and
- (2) in subsection (c), by striking `December 31, 2012′ and inserting `December 31, 2013′.
- (b) Application to Legislative Branch-
- (1) MEMBERS OF CONGRESS- The extension of the pay limit for Federal employees through December 31, 2013, as established pursuant to the amendments made by subsection (a), shall apply to Members of Congress in accordance with section 601(a) of the Legislative Reorganization Act of 1946 (2 U.S.C. 31).
- (2) OTHER LEGISLATIVE BRANCH EMPLOYEES-
- (A) LIMIT IN PAY- Notwithstanding any other provision of law, no cost of living adjustment required by statute with respect to a legislative branch employee which (but for this subparagraph) would otherwise take effect during the period beginning on the date of enactment of this Act and ending on December 31, 2013, shall be made.
- (B) DEFINITION- In this paragraph, the term `legislative branch employee’ means–
- (i) an employee of the Federal Government whose pay is disbursed by the Secretary of the Senate or the Chief Administrative Officer of the House of Representatives; and
- (ii) an employee of any office of the legislative branch who is not described in clause (i)
Ok. That’s not so bad. The whole thing is just 245 words. Let’s go through it section by section. The first few line are the title and enacting clause:
To extend the pay limitation for Members of Congress and Federal employees.Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
This portion reports the title of the bill, and then adds the enacting clause, which is required by Title 1, section 101 of the U.S. Code. Neither are themselves part of the legislation or any resulting law. After the enacting clause, the text of the bill begins:
SECTION 1. EXTENSION OF PAY LIMITATION.
(a) In General- Section 147 of the Continuing Appropriations Act, 2011 (Public Law 111-242; 5 U.S.C. 5303 note), as added by section 1(a) of the Continuing Appropriations and Surface Transportation Extensions Act, 2011 (Public Law 111-322; 124 Stat. 3518), is amended–
(1) in subsection (b)(1), by striking `December 31, 2012′ and inserting `December 31, 2013′; and
(2) in subsection (c), by striking `December 31, 2012′ and inserting `December 31, 2013′.
And here we have run into the first problem of legislative drafting: our bill is achieving its objectives by altering existing legislation, which itself has already been altered. The Continuing Appropriations and Surface Transportation Extensions Act, 2011 added a Section 147 to the Continuing Appropriations Act, 2011, and we are now amending that added section. (As a side note, “Public Laws” are just sequential numbering of enacted legislation, so “Public Law 111-242″ was the 242nd piece of legislation enacted by the 111th Congress; citations such as XXX Stat. XXX are references to the Statutes At Large, the official legal and permanent evidence of all the laws enacted during a session of Congress (see 1 U.S.C. 112); citations such as X U.S.C. XXX are references to the U.S. Code, which is a consolidation and codification of the general and permanent laws, organized by topic and updated to reflect amendments. Only some of the U.S. Code is “positive law,” however. More on that later).
And so we need to reference other law in order to understand the plain text of the bill. Here’s the referenced section 147 from P.L. 111-242, as added by P.L. 111-322:
Sec. 147. (a) For the purposes of this section–
(1) the term `employee’–
(A) means an employee as defined in section 2105 of title 5, United States Code; and
(B) includes an individual to whom subsection (b), (c), or (f) of such section 2105 pertains (whether or not such individual satisfies subparagraph (A));
(2) the term `senior executive’ means–
(A) a member of the Senior Executive Service under subchapter VIII of chapter 53 of title 5, United States Code;
(B) a member of the FBI-DEA Senior Executive Service under subchapter III of chapter 31 of title 5, United States Code;
(C) a member of the Senior Foreign Service under chapter 4 of title I of the Foreign Service Act of 1980 (22 U.S.C. 3961 and following); and
(D) a member of any similar senior executive service in an Executive agency;
(3) the term `senior-level employee’ means an employee who holds a position in an Executive agency and who is covered by section 5376 of title 5, United States Code, or any similar authority; and
(4) the term `Executive agency’ has the meaning given such term by section 105 of title 5, United States Code.
(b)(1) Notwithstanding any other provision of law, except as provided in subsection (e), no statutory pay adjustment which (but for this subsection) would otherwise take effect during the period beginning on January 1, 2011, and ending on December 31, 2012, shall be made.
(2) For purposes of this subsection, the term `statutory pay adjustment’ means–
(A) an adjustment required under section 5303, 5304, 5304a, 5318, or 5343(a) of title 5, United States Code; and
(B) any similar adjustment, required by statute, with respect to employees in an Executive agency.
(c) Notwithstanding any other provision of law, except as provided in subsection (e), during the period beginning on January 1, 2011, and ending on December 31, 2012, no senior executive or senior-level employee may receive an increase in his or her rate of basic pay absent a change of position that results in a substantial increase in responsibility, or a promotion.
(d) The President may issue guidance that Executive agencies shall apply in the implementation of this section.
(e) The Non-Foreign Area Retirement Equity Assurance Act of 2009 (5 U.S.C. 5304 note) shall be applied using the appropriate locality-based comparability payments established by the President as the applicable comparability payments in section 1914(2) and (3) of such Act.
And now you can probably see the rabbit hole into which we are descending. The referenced law is itself full of references to other laws! We won’t go any further down the unraveling; instead I’ll simply explain Sec. 147 to you: certain federal employees, as defined in various sections of the U.S. Code (5 USC 2105; subchapter VIII of chapter 53 of title 5; subchapter III of chapter 31 of title 5; 22 U.S.C. 3961; and section 5376 of title 5) cannot receive an adjustment in pay during calendar year 2011 or 2012 under the standard annual adjustment system of Title 5 of the code, or any similar statutory adjustment in the Executive Branch agencies. Nor can senior-level employees receive an increase in their basic rate absent a promotion.
And so the bill we are currently working with — which specifies that the relevant end dates of the freeze will be changed from December 31, 2012 to December 31, 2013, simply extends the freeze for an additional calendar year. Ok, on to the next section:
(b) Application to Legislative Branch-
(1) MEMBERS OF CONGRESS- The extension of the pay limit for Federal employees through December 31, 2013, as established pursuant to the amendments made by subsection (a), shall apply to Members of Congress in accordance with section 601(a) of the Legislative Reorganization Act of 1946 (2 U.S.C. 31).
On its face, this subsection seems to simply say that Members of Congress will also not get a pay increase in 2013. But what’s that reference to section 601(a) of the LRA of 1946 and 2 USC 31? It’s a pointer to the section of the Code that says, in reference to the formula for adjusting Member pay:
In no event shall the percentage adjustment taking effect under subparagraph (A) in any calendar year (before rounding), in any rate of pay, exceed the percentage adjustment taking effect in such calendar year under section 5303 of title 5 in the rates of pay under the General Schedule.
In other words, the current bill’s application of the pay freeze to Members is more or less a fig leaf; current law already requires that any increase in Member pay be less than the increase in pay for federal employees. Therefore, the extension of the freeze in subsection 1 automatically extends the freeze on Member pay, regardless of whether subsection B is included. There’s nothing wrong with restating the Member pay freeze, but it is not necessary. (For my previous writing on Member pay, see here.)
As a sidebar, here’s a good question? Why do bills and laws sometimes reference old laws, and sometimes reference the U.S. Code? The answer is that the old laws are legal proof of existing law, but the U.S. Code — which is a compilation and rearrangement of the laws to ease finding and allow for amendments — is not always legal proof of law. Starting in 1926, Congress began enacting whole titles of the Code as “positive law” and repealing the underlying statutes. But only some of the Code has been enacted into positive law. In those cases, bills can directly amend the Code; the Code is law. But for areas that the Code is not yet positive law (such as Title 2), bills must reference the actually Acts, and Code citations are merely for reference.
Alright, onto the next portion of subsection (b):
(2) OTHER LEGISLATIVE BRANCH EMPLOYEES-
(A) LIMIT IN PAY- Notwithstanding any other provision of law, no cost of living adjustment required by statute with respect to a legislative branch employee which (but for this subparagraph) would otherwise take effect during the period beginning on the date of enactment of this Act and ending on December 31, 2013, shall be made.
(B) DEFINITION- In this paragraph, the term `legislative branch employee’ means–
(i) an employee of the Federal Government whose pay is disbursed by the Secretary of the Senate or the Chief Administrative Officer of the House of Representatives; and
(ii) an employee of any office of the legislative branch who is not described in clause (i)
This section is, presumably, trying to make sure that the pay freeze extends to the legislative branch. There are many provisions of the U.S Code that deal with the Executive Branch as distinct from the Legislative Branch. Whether the definition of employee under Title 5 falls into this category is debatable; this may be another fig leaf to reiterate that the proposed law is also being applied to congressional employees. But it also may be relevant; there may be employees in the legislative branch who are not covered by the definition of employee under Title 5 (although it doesn’t look that way to me).
Now, the current bill at hand came up today under suspension of the rules, so it was never reported out of committee, and therefore does not have a committee report. If it did have one, the explanation of the bill would likely say something like this:
“Section 1 of the bill would extend the current freeze on federal employee pay adjustments through 2013. The current freeze is set to expire at the end of 2012. It would also specifically apply the freeze to Members of Congress and employees of the Legislative Branch.”
And that is one of the reason why the House requires Committee reports to describe the provisions of reported bills, and more or less all you need to know as to why we don’t require Members to read the actual text of the bill (or certify that they have done so) prior to voting on legislation.
That’s a great question! And I’m spending this week answering it. Previous entries in the series:
Part Zero: Building a deck in Fairfax county, VA (1/30/2012)
Pretty much any libertarian theory must start with the some variant on the basic ideas of the autonomous individual and the harm principle. Now, as you may already know or may come to find out, I’m a pretty pragmatic libertarian, but I do certainly believe in these two concepts. Simply stated, every individual exists prior to their interaction with other individuals or the State, and no individuals’ behavior should be restricted by others or by the State unless it is causing harm to others. There can (and should) be an ongoing debate over what constitutes “harm,” but there can be no doubt that if the actions of an autonomous individual can be agreed to be not causing harm to others, then it’s really none of our business what he or she is doing.
And so we must arrive at the conclusions that when an adult is not harming others, he is free to pursue his own happiness unencumbered by other individuals or by the State. And therefore, it is none of your business and none of the States business as to which cereal I eat for breakfast, what kinds of clothes I wear, which books I want to read in my free time, or what solitaire game I play with my deck of cards. Now, you can argue that I can harm you (or the State) simply by not maximizing my industry or health or economic output, and therefore everything I don’t do that I should do is a harm to others (or the State). But that’s a theory of fascism, best I can tell. And I doubt anyone wants to object to my theory by promoting fascism.
Following from this, as well as from human nature, we must also thus accept that individuals will have different conceptions of happiness and thus different private strategies for pursuing that happiness, and none of it is of any concern to the rest of us. I might enjoy playing my piano in all my free time. You might enjoy reading books. Someone else might enjoy growing vegetables in a garden to make snacks. And someone else might enjoy growing pot to smoke. People will lead different lives. We are free, of course, to negatively judge people for how they choose to spend their autonomous non-harming time, but we are not allowed to restrict them from choosing how to spend it. Not as individuals and not collectively as the State.
Following from this, quite naturally, is the first principle of the State: whatever else the State may do, it should not be in the business of promoting or discouraging any particular conception of happiness, or any particular choices a non-harming autonomous adult might make in pursuit of that happiness. And this brings us to a first political principle: all State bans on the private non-harming activities of the individual are presumptively illegitimate. In particular, all “for your own good” bans are obnoxious to libertarianism. If someone want to spend their free time smoking cigarettes all day in their own backyard, or eating ridiculously fatty foods, or drinking absinthe until they pass out, those all seem like pretty silly ideas to me. But who are we to judge? And so the State’s role in a non-role: there should be no restriction under law.
Nor should there be any discouragement. If the State cannot choose between competing conceptions of happiness or the good life, it follows that it should not discourage or encourage any particular conception of the good life for the non-harming autonomous individual. I don’t doubt the success of public health campaigns — particularly the anti-smoking campaign — in the second half of the 20th century in America. It isn’t a question of whether the government can influence the non-harming behavior of adults; it can. But that is precisely the problem. Handing the keys to private happiness to the will of the collective majority is wr0ng. But public health is at least plausibly defensible; perhaps adults should know about the dangers of tobacco so they can make informed decisions about their private activities. What is not defensible is the next step: manipulating the taxation system to preference one conception of the good life over another. As much as it makes me sick to think about smoking cigarettes, excise taxes employed to reduce consumption of so-called “vice” products are indefensible. And so are, obviously, outright bans.
Why, you might ask, should the State not take a position when there are competing conceptions of happiness? I would say for at least three reasons. First, the distinction between “taking a position” and promoting/discouraging and banning are not very clear. And the latter is clearly not acceptable. Second, the state taking a position on such an issue is itself a harm; to burden me with additional obligations in order to enjoy my autonomous non-harming activity is wrong. Finally, the State is supported by collective taxation; it should not be discriminating among competing conceptions of the good in order to spend collective money promoting one or the other.
Naturally, it follows that if one autonomous individual can undertake any non-harming activity he wishes, then two autonomous individuals may undertake any activities they mutually desire, so long as they do not harm anyone else. This is where, as a policy matter, I completely diverge from the conservatives, and the basis of why I do not think of myself as a conservative. It strikes me that Lawrence v. Texas is the most important libertarian SCOTUS decision of our age; if the State were allowed to regulate the non-commerical sexual habits of consenting adults, then it would seemingly follow that the State could regulate a good deal of the private habits of the non-harming individual. And that would be horrible.
Which brings us to gay marriage. I don’t think there’s an issue out there that so clearly illustrates why I’m a libertarian rather than a liberal or a conservative. In a nutshell, conservatives are wrong because there should be no State restrictions on intimate human relationships between consenting adults. But liberals are also wrong, because the solution to the situation is not to allow homosexuals to obtain the State preferences afforded heterosexuals, but instead to get the State completely out of the business of granting preference to any arrangement(s) of human intimacy over any other. Anything short of that commits the State to promoting a particular conception of the good life, or to discouraging other conceptions.
Let me explain.
I. How gay marriage gets misunderstood
It’s easy to get lost in the all the high-minded talk about marriage from both the pro-gay marriage crowd and the anti-gay-marriage crowd. Most of the rhetoric is wrapped up in things like love, tradition, equality, western civilization, freedom, and the such. That’s understandable from a political lobbying point of view, but it’s not really a good way to think about what is actually at stake here: selective government benefits.
Right now, anyone who is legally married (whether straight or gay) in the United States has access to a myriad of public benefits from their home state. Here’s a list of several dozen: tax breaks, estate planning benefits, sick days from work to care for your spouse benefits, medical benefits, consumer benefits, etc. Etc. Etc. The list goes on and on. In addition to these state level benefits, straight couples legally married in the United States can get similar benefits from the federal government (such as social security, tax breaks, etc.)
Since only a handful of states have gay marriage (or civil unions that are identical to gay marriage) and the federal government does not recognize gay marriage at all, gay couples do not have the same access to these benefits that married straight couples can receive. Thus the claim of inequality.
What is emphatically not at stake here is the right to live a married life. Ever since Lawrence v. Texas was decided by the Supreme Court, it is not possible for a state or the federal government to punish someone for homosexual conduct. Thank God. Short of the selective government benefits, gay couples may mimic the lifestyle of any straight couple without any worry about public repercussions: they can have a public wedding ceremony, put rings on their fingers, cohabitate, and even bicker with each other over who should take out the garbage. In essence, gay couples have complete and total access to marriage as it exists outside the sphere of the state. Prior to Lawrence v. Texas, this was not the case. But it is now. No government in our nation can punish you for living a married, homosexual lifestyle. All they can do is deny you the selective benefits.
So the cause of action here is simple: one group of people (heterosexuals who declare themselves married) can get a set of selective benefit from the state if they sign some forms. Another (homosexuals who declare themselves married) cannot. The latter group would like the selective benefits of the former group. In effect, they want in on the party. It can be cloaked in as soaring rhetoric as you would like but, in the end, what we are talking about here is tax breaks and visitation rights. Nothing more, nothing less.
II. The relationship between marriage and the State
But this raises a fundamental libertarian question: why do these selective benefits exist at all? And what about the heterosexual (or homosexual) couples that would like to live a so-called traditional married lifestyle (i.e. long-term monogamous cohabitation) but don’t really feel like signing up with the state? Where are their benefits? Even more to the point, what about heterosexual (or homosexual) couples who don’t want to agree to one of those three pieces (long-term, or monogamy, or cohabitation), but would surely like them some visitation rights at the hospital?
Or even more to the point, this: why should the government let my wife visit me 24 hours a day at the hospital, while my unmarried friend cannot have anyone visit him 24 hours a day? It’s nonsensical. And it can be dressed up in any of the lingo currently being tossed around in favor of gay marriage: is someone less deserving of love and companionship when they are sick, simply because they aren’t married? Should they really have to go it alone at 3am at the hospital because they don’t have a husband?
So the question becomes this: what should the relationship be between the state and marriage? State and federal law says “lots and lots of selective benefits.” I say ” nothing.” Marriage is fundamentally not a government institution. It existed prior to government selective benefits for married couples, and it will exist long after we do away with those selective benefits. What marriage is is this: a private arrangement between private citizens. Some people think it’s a religious arrangement, others just a contract between consenting adults. But whatever it is, it can be achieved without the existence of the selective benefits.
And note that this is historically true. Selective government benefits for married couples are a (relatively) new phenomenon. Five hundred years ago, this isn’t how it was done. And 500 years isn’t all that long when you are talking about an institution that pervades a decent chunk of human history
III. The advantage of removing the state from heterosexual marriage
None of this would be all that important if there weren’t one fundamental wrinkle: the development of the selective government benefits is having a corrosive effect on marriage and human relationships. This falls into two general categories:
1) The state has a monopoly on the marriage contract. Right now, if you want to get married in the state of Virginia and get your hands on those selective government benefits, you have to play by the state’s rules. One of those rules is “no gays need apply.” But there are tons of other rules, mostly regarding how the marriage might legally end and what happens to the joint possessions of the parties when it does. Once upon a time there were other rules (i.e. husbands could not be charged with raping their wives, etc.), but many of them are gone. Some remain: those regarding debt, pre-marriage property, liability, etc. And, of course, the most important one: adultery is a criminal offense in Virginia if you are married. In any event, your marriage in the state of Virginia will be just like mine. One size fits all.
But what’s the point of that? Why can’t my wife and I have a different marriage contract than you? Why does the public get to set the terms of any dissolution of my marriage? And why does it have to be uniform? In effect, what is going on here is that the government is saying the following: if you want our selective benefits, you have to play exactly by our rules. This is not only a bar on gay or polygamous relationship, but it’s a bribe on heterosexual relationships: go with our marriage contract or be denied the benefits. Thanks, but I’d much rather write my terms of life with my wife.
So here’s a trade I propose: the state drops all selective benefits, and we’ll all write our own contracts. And just like the state of Viriginia will enforce a premarital financial contract (i.e. a prenup), they can enforce our marriage contracts. And then, without the bribe of the selective benefits to straights or the bar against non-traditional marraiges, we’ll let a thousand flowers bloom: gays can write up their contracts, polygamists can write up theirs, and I’ll write up mine. Maybe you’ll put in a bar on adultry, maybe I wont. Maybe your wife will change her last name. Maybe I’ll change mine ( can’t do that in VA right now! Go cavaliers!).
2) People (especially homosexuals) have come to equate marriage with state recognition. Nothing makes me sadder than to see a gay couple on TV crying because they “can’t get married.” Why? Because it’s obvious that they aren’t crying because they can’t get at those selective government benefits. They’re crying because they don’t feel that their marriage is valid if the state won’t approve it. This, of course, is complete pap. Their marriage is perfectly valid the minute they proverbially stick some rings on their fingers and begin living the lifestyle of whatever they believe “marraige” means. But that’s an intellectual take on what is obviously a highly emotional thing. And I hold the government responsible: the public through its elected officials has created a situation in which two people, engaged in an utterly non-governmental insitution, are made to feel excluded by the fucking government. As if anyone needs the government to bless their marriage. It’s heartbreaking. But it’s real. Your fault, big brother.
IV. Addressing conservative objections
So, everyone right-wing ideologue and his brother are reading this and having the same thought: wait, Matt, the state has an important role to play in all this, because marriage is a positive for society and the state has a vested interested in promoting things that are positive for society. If we encourage marriage, it will be for the benefit of all.
Leave aside that it’s an odd thought for a conservative to be arguing the positive role of government. I take issue with each clause of the above statement. Let’s start with the first one: marriage is a positive for society. Two objections: what’s your proof and, more importantly, who cares?
On the proof question, conservatives love to raise all sorts of stats about how children do better in school or are happier or whatever in a two-parent household. Probably true, but it’s not good enough proof, because the comparison that is most important isn’t how kids with married parents do vs. how kids with single parents do. Undoubtedly, the former do better. The true comparison is how kids of married parents do vs. kids of unmarried-but-cohabitating parents do. Because as we’ve shown above, state marraige is nothing but a set of selective benefits. But conservatives want to make the case that marriage — private marriage prior to those benefits — is worth promoting. And so an apples to apples comparison would be that marriage itself, not two-parent households, is the key. And if the key is two-parent households, then the state should, on its own terms, be promoting co-habitation, not marriage. Or else conservative defenders have to address the causation issue (more on this below). (Also note that the comparison should be betweeen (married parents minus the selective benefits) and cohabitating parents, since that would be a true prior-to-government proof of the benefit of marriage).
But let’s assume the conservatives are right that marriage is a positive for society. Who cares? There are a million things that would be positive for society that we wouldn’t dare directly incentivize: brushing your teeth, not eating ice cream, running a few miles a day, getting enough sleep. Why? Because these are all in the domain of stay the fuck out of my life. Whatever the benefits of marriage might be for society — and I’m skeptical they amount to much if anything — they need not take precedence over any other potential benefit.
Why? Because of the second clause: the state has a vested interest in promoting things that are positive for society. In a word: No. The state has a vested interest only in collective action of what individuals would collectively like to achieve but cannot, or will not, do privately together. The state has a vested interest in national defense. In policing crime. In building roads. In ensuring universal access to the democratic process. Plausibly in regulating national economic affairs. But in promoting marriage? Please. I’d write more, but you can go look up your favorite libertarian theorist at this point. If you disagree, little will convince on this point, but maybe…
…a eureka moment is possible on the third clause: If we encourage marriage, it will be for the benefit of all. Again, in a word: No. It will be for the benefit of those who get the selective benefits and would have chosen the exact same marriage arrangement if the benefits had not existed. Everyone else — everyone else — will pay a price, either in benefits or freedom. Single people will not benefit. Gays will not benefit. Polygamists will not benefit. Straights who wanted a different marriage contract will not benefit. And you can sure as hell believe that some of the people who would not have otherwise gotten married will not benefit.
This is the crucial point. Whether or not we incentivize marriage, a hell of a lot of people are still going to get married. The only place we can make a difference is on the margins: for the conservatives who want to make the good-for-soceity argument, the marginal marriages have to either (a) benefit those who got married on the margins, or (b) benefit society as a whole. I doubt either is the case. My guess is that people who get married for the selective benefits who otherwise would not have gotten married have massive rates of divorce. That’s clearly not good for them. And that’s probably not good for society (and, at least, a deadweight cost in the size of the legal fees). In addition, you have to guess at how many people get married on the margins: it can’t be many. It should be none.
A better world is one in which intimate human relationships are defined and executed not by the government, but by the parties involved. That’s called freedom. It’s not a world where someone takes your one-size-fits-all marraige contract and submits to it because they want to go visit their boyfirend at the hopsital when it’s not visiting hours. That’s called cruelty.
V. Addressing liberal objections
The liberal objection to my idea goes something like this: getting the state out of heterosexual marriage won’t provide real equality for gays, because the inequality is prior to the state. State recognition would legitimate homosexuality as “normal” and would promote tolerance in private society as it enforced it in public society. Decoupling marriage and the state would be like decoupling education and the state in the south after Brown v. The Board of Education; it would be equality on paper, but nothing else.
For me, the short (and callous) argument is: too bad. I’m sympathetic to the Brown comparison (which is closer to reality than you might think; South Carolina and other states flirted with abolishing or defunding all public schooling as a way to avoid integration), but both not convinced and unconcerned even if convinced. It’s just a bridge too far: legal equality exists under law; not in people’s heads. I concede that law can change attitudes; I’m not such a libertarian as to think that anti-segregation laws did not improve private race relations, or that Lawrence v. Texas didn’t improve attitudes about homosexuals. But I also believe that equality can run both ways. If the state is handing out benefits, then equality can be achieved by equalizing the benefits, even if its a downward equalization.
But, in reality, these liberal arguments are too clever by half. True equality would mean equality for the cohabitating, for the polygamists, and for those who are single who just want someone to sit by them at the hospital at 3am. Recognizing gay marriages does nothing for these equalities. In the end, it’s still just selective benefits for a few more selected people.
VI. Addressing the conservative-gay objections
My favorite objections to my position is the Andrew-Sullivan-esque critique: that marriage is a wonderful institution, should be promoted by society, and that getting gays to marry is a conservative victory: more good-for-society marriages! Most of my responses to this are above in my thoughts on the general conservative objection. But I also do not think any political resolution of gay marriage will be legitimate unless polygamy and other non-heterosexual relationships are legalized.
Many people — including Sullivan himself — bristle at this. Especially liberals, because they fear that equating gay marriage with polygamy means political death for gay marriage. That may be reality right now, but in the long run it’s not the correct course of human freedom to continue to insist that traditional marriage was wrong about its gender specificity, but correct about it it’s monogamy component. Easing the transition of thought necessary to make the leap to a true freedom of intimate human relations could be jumpstarted by abolishing the selective benefits. I presume it’s a lot less scary for everyone if they know that the polygamist at least won’t have some special benefits that single people don’t have.
If human beings want to construct personal relationships, I see little reason to tell them they can only do so with one other person. I personally don’t think polygamy works that well in practice, but who am I to judge. The stereotypical negative vision of polygamy is a bunch of teenage girls in Utah forced into a marriage they don’t want. But those marriages were underwritten and protected by a territorial government itself promoting polygamy; under a private contract world of marriage, children would be ineligible to create legal marriages.
We can’t stop polygamous relationsihps from existing in private right now. If we just kill off state marriage, we won’t even have to do anything to bring equality to polygamy. It will just be so.
VII. Implementing the idea
So what is to be done? Here’s my three-step plan:
1) Repeal all selective government benefits for married couples. Abolish state marriage licenses. This means everything: no tax breaks, no special hospital visitation rights, no more social security benefits for widows. No more power of attorney. None of it. Abolish the very definition of state marriage.
2)Arrange for the government to enforce all otherwise-legal marriage contracts. Write statutes directing the courts to enforce all legally-written marriage contracts. Straight? Of course. Gay? Sure. Polygamy? Bring it on. The only exception I would make would be that no one could write a contract that violated other laws (i.e. husband can beat wife without recourse). A tough call would be contracts that called for perpetual marriage with no exit. But I’d be inclined to allow them. And other things that make people squirm — contracts that allowed one partner to practice adultry but not the other; contracts that put all marriage property into one partner’s name or gave one partner all property upon dissolution — I would be fine with. Welcome to the world of freedom. A contract is a serious piece of business.
3) Continue to allow private marriage discrimination. Should private entities be allowed to offer selective benefits to married people under their own definition of marriage? I say, with a lot of reservations, yes. Could a university that received federal funds define marriage its own way and provide married student hosing only to those who fit the definition? It’s a tough call, but I’m persuaded that it’s the right one right now. But I’m open to being convinced otherwise.