Recess appointments: watch what you cite…

January 9, 2012

The continuing public debate over the constitutionality and propriety of President Obama’s recess appointments last week is something that I think is quite healthy for a democracy. One of the few things we can say for certain about the issue is that the Constitution is vague on the matter, and therefore open to a variety of  interpretations that are equally plausible. Don’t listen to anyone to tries to convince you that this is a settled matter with a definitive answer. It’s not. Ditto for anyone who tries to tell you that it’s a prospectively easy court opinion to write; my inclination (against my normative wishes) is that the Obama recess appointments are constitutional, by one logic or another. But I think it’s far from an open-and-shut case, and I can easily imagine an opinion to the contrary.

In my mind, all of this means that optimal political and legal adjudication of both the immediate matter of the Cordray et. al nominations, as well as the use of recess appointments in the future, requires a full and vigorous debate over the normative, constitutional, institutional, and political issues surrounding the current appointments. Although I don’t think it’s true of all political debates, this is one in which I think having more voices and more opinions is an unqualified benefit; and so i applaud the volume and diversity of writing that has sprung up on the topic in both the popular press and the blogsphere.

That said, one thing that is bothering my whig antennae is the deference that opinions of the Attorney General, as well as the Office of the Legal Counsel at the Justice Department, are receiving among commentators. Here’s Lawrence Tribe, writing in the New York Times last Thursday:

Past practice also points the way. Presidents have long claimed, attorneys general have long affirmed and the Senate has long acquiesced to the president’s authority to make recess appointments during extended breaks within a Senate session […] Since 1867, 12 presidents have made more than 285 such appointments, without constitutional objection by the Senate. And attorneys general going back to Harry M. Daugherty in 1921 have held that the Constitution authorizes such appointments.

Here’s Stephen Bradbury and John Elwood, writing in the Washington Post:

In 1921, citing opinions of his predecessors dating back to the Monroe administration, Attorney General Harry M. Daugherty argued that the question “is whether in a practical sense the Senate is in session so that its advice and consent can be obtained. To give the word ‘recess’ a technical and not a practical construction, is to disregard substance for form.”

Here’s Tim Noah, pushing back against the 1921 Daugherty opinion:

The problem is that although Daugherty broadened the definition of the term “recess,” he also affirmed … that he didn’t envision a recess lasting three days: “[A]n adjournment for five or even 10 days [cannot] be said to constitute the recess intended by the Constitution.” Daugherty’s caveat is also cited in [a] 1992 memoissued under Attorney General William P. Barr.

Here’s John Yoo, arguing against the constitutionality:

In the past, attorneys general and presidents have thought that an adjournment would have to be longer than at least ten days to become a “recess.”

Here’s Jonathan Bernstein, responding to Yoo on his blog:

As Yoo knows (since he refers to it in his article), the current three-day minimum standard is derived from a Clinton-era Justice Department opinion. Not the Senate. The Justice Department.

But here’s the problem I see: none of these opinions of the Justice Department are in anyway binding on constitutional matters that affect the legislative branch as an institution (note that this is emphatically not the the case for constitutional questions strictly within the executive branch, where Justice Department opinions bind agencies absent court rulings otherwise). Bernstein very correctly points out that the Senate is not the sole arbiter of what constitutes a recess for the purposes of Article II of the Constitution. But by virtually identical logic, it should be obvious that the opinion of the Attorney General is hardly the last word either.

In fact, common sense tells us that the Justice Department is going to have a much strong pro-President opinion, on average, than any definitive Court ruling on the matter. The Attorney General works for the President! Even worse, most of the opinions and memorandums of the Justice Department rely strongly on previous opinions and memorandums of the Justice Department. It’s not a stretch to say that many or most of these citations to Justice Department opinions are simply reiterating Justice Department precedent stemming from the 1921 Daugherty opinion. So while many commentators are presenting these opinions as a long and continuous cannon of rulings on the matter, it could just as easily be described as a series of self-serving executive branch precedents, stacked up on top of each other.

Now, there’s nothing wrong with the opinions as arguments. They are certainly important documents to consider when thinking about the issues surrounding recess appointments, and many of them are both well-written and thoughtful. As a historical resource for guiding deliberations or informing us of past thinking, they are useful. But they cannot be mistaken for court decisions on the constitutionality of the current recess appointments. As they relate to the ultimate constitutionality of any given recess appointment, they are, at best, the foundation of the arguments that the executive branch would bring to court. And they should be treated as such: thoughtful opinions and memorandum, produced by the executive branch for use by the executive branch, with the full understanding that they were not written by, or for, the legislature.

But wait, you say,  hasn’t the Senate signed on to certain Attorney General opinions in the past or otherwise validated executive branch action, like int he 1905 Judiciary Committee Report on the TR appointments? To which I answer: sure. But the Senate can surely validate an action at one point in time and change it’s mind at another. It would be striking indeed to come up with a theory of recess appointments in which Senate precedent — which can be, and occasionally is, overturned by a bare majority of Senators — was binding not only on a future Senate, but also on questions of the constitutional powers of that future Senate. At the very least, a contemporary Senate can actively disagree with its own past precedent, even if inaction was interpreted as an endorsement of the precedent (which itself is not inherently true.)

But wait, you say, aren’t the terms of recess appointments, as pointed out by Noah and Akhil Amar, often negotiated by the Justice Department and the Senate? To which I say, again: sure. But while the Senate and President can come to agreements on recess appointments, nothing they do can violate or alter the Constitution, simply because they agree. Consider the legislative veto: numerous Presidents signed bills into law that put in place legislative vetos, but that did not alter their fundamentally unconstitutional character, as decided in Chada. Both the Senate and House agreed to the Line Item Veto Act in 1996, but that did not render it constitutional. The Senate cannot consent to violate the Constitution, even if that violation results in a disadvantage for the Senate. (Note that the Senate certainly can violate the constitution and choose not to attempt to enforce the constitution; but even in that case, any individual with standing could challenge the Senate’s selfless actions as unconstitutional.)

But wait, you say, don’t the federal courts rely on such opinions and memorandum when consider the constitutional questions involved? To which, I say, again: sure. But that still doesn’t make them any more authoritative than a good law review article on the topic. And to the degree to which the Courts are deferential to an OLC opinion in an inter-branch dispute, I think that’s an error. The existence of such Justice Department opinions is probably, at least in part, constitutive of any lawsuit that was filed against a recess appointment. That it would also become the reasoning for the court opinion on the matter would rest solely, in my mind, on the strength of its arguments, not the province of its origin.

And look, again, I’m not trying to say the Justice Department opinions and memos are worthless. Far from it. They are some of the best-informed legal writing we have on the subject, especially in the absence of a lot of competition or definitive court rulings. My point is that we shouldn’t give them, on their own, as much weight as many commentators have been giving them this week. And I don’t say this as a legislative branch patriot; the same logic would hold for opinions and memorandum of the Senate Legal Counsel (or House General Counsel, for matters in their purview). These are entities whose primary function and activities are to serve an individual branch of the government. In cases of inter-branch disputes, their opinions can be interesting, helpful, and ultimately persuasive. But we should not mistake them for controlling court decisions.


Recess Redux

January 6, 2012

So there’s been a huge amount of writing about the recess appointments since I took it up from the Whig perspective on Wednesday. There appear to be four different playing fields on which this is being discussed/argued. To wit:

1) The Constitutional Question. Is the recess appointment of Cordray legal under Article II of the constitution?

2) The Normative Question. When should a recess appointment be available to the President?

3) The Institutional Questions. What caused this? How will it affect future inter-branch conflict over nominations and confirmations?

4) The Political Questions. Will the public legitimate this? Is this good strategy for Obama? How should the GOP respond? How will it affect domestic politics in 2012?

These are all excellent questions to ask, argue about, lobby the public over, and adjudicate.  But I see two problems with the current conversation. First, conclusively answering any one of the question doesn’t give you either the answer, or a solid argument, for any of the other question. Whether the recess appointments are judged legitimate by the public has little or nothing to do with whether they are constitutional, and whether they are constitutional has little or nothing to do with whether they are normatively desirable. And you can be damn sure that whether they are normatively desirable has nothing to do with whether it will be accepted as publicly legitimate. So don’t tell me it’s constitutional because the CFPB is popular, don’t tell me it’s a good idea because it’s  constitutional, and please don’t tell me the public won’t accept it because it’s a bad normative idea.

Second, and conversely, people seem to want to ignore some questions completely when they address others. And while the answers to some questions aren’t arguments for others, the fact is that all these issues are intertwined. For example, your answer to the normative question is at least partially dependent on your assessment of the institutional question; if the result of the current situation is that Presidents increasingly sidestep the Senate in making future appointments, that is almost certainly going to affect your normative view of Obama’s actions. Similarly, I don’t think the political questions and the institutional questions can be separated; as I wrote earlier in the week, institutional change is often driven (or not driven) by short-term politics. In the end, they are largely the same thing.

With all this in mind, I’ll make two quick points:

1. The normative question and the constitutional questions are inevitably in total conflict. I wrote this Wednesday, but I think it’s worth repeating given how the arguments have progressed: the  length of time under which the Senate needs to be in recess for a recess-appointment to be constitutional is already way shorter than any normative rationale can justify. The conflicting values here are congressional control of the executive branch and the judiciary vs. the smooth functioning of the government. Both are hugely important. But the span of court decisions flowing from the strategic use of recess appointments has whittled-down the time period needed for a recess to qualify to the point where the debate is over whether 3 days or a week is enough time under the constitution for a valid appointment.

But even if the constitutional minimum is a full week (and there’s good reason to believe it’s a lot shorter than that), I don’t think there’s a possible normative outlook that can justify that, or at least one that justifies that and doesn’t justify an even shorter time-period. The regular-order process of nomination and confirmation already takes longer than a week. If we had true normative concerns about executive branch officials being missing over a one-week period, we’d probably have temporary recess appointments for all regular nominations, so that the jobs could be stocked while the confirmation process took place in the Senate. But we don’t. Instead, we quickly confirm the very few key positions (like Secretary of State), and the rest sit and wait out the process.

What’s the upshot of this? I see two. First, as far as the constitution is concerned, and as much as it pains my Whig heart to say it, I think we pretty much have to concede that, realistically, the President has the authority to make a recess appointment whenever he wants. The legal issues have been completely divorced from the normative issues, and trying to read a normative position into the constitutional jurisprudence is a fool’s errand. Following that is a second point: we should  focus normative energy on the institutional questions. Just because something is constitutional doesn’t make it a good idea. And it also doesn’t make it inevitable that the actors who hold such constitutional powers will use them; political and institutional incentives can be arranged to constrain the constitutional actions of political actors. This is obvious and routine in politics, but something that people tend to forget in these sorts of constitutional stand-offs. But I think it’s especially important here, because…

2. The politics of this seem headed directly toward rearrangements of institutional power. I joked on Twitter this morning that the ultimate end of all of this is probably going to be a pro-president Supreme Court decisions that upholds a GOP recess appointment to the Supreme Court that was made during a Senate quorum call. That’s overblown humor, but I do think things are headed in a slippery direction here. Now that the precedent has been set to use recess appointments during periods of pro forma sessions of the Senate, the Senate’s available responses will be to either (a) accept the President’s ability to move recess appointments more or less at will; (b) stay in actual session for much tighter periods of time; or (c) find some political ways to constrain the President from using the recess appointments.

Obviously, choice C is preferable. But I don’t think we’re going to find out the true extent of this tit-for-tat game until the Senate and the Presidency are controlled by different parties. That may induce real fireworks. Right now, the co-partisanship of the two institutions is probably enough of a restraint on President Obama, but I don’t expect that to hold under an Obama second-term with a GOP Senate or under a GOP Presidency and a Democratic Senate. I would suspect in either of those cases, we will see a rise in recess appointments, to which the Senate may respond by freezing confirmations, to which the response may be more recess appointments. And while we don’t know where that would lead, it seems to me that the President would have the upper hand in the dispute.

But wait, you say, what about a solution in which the regular order nomination/confirmation process was reformed, such that the norms against filibustering nomination returned and recess appointments did not become any more common than they currently are? That would be an excellent outcome, of course, and it’s certainly a plausible solution. But it would also be a major reversal of course in what seems to be an ever-escalating game of constitutional hardball. And the Presidency is a real wildcard in any constitutional hardball game, I think. Internal congressional hardball can easily become a negative sum game for the institution after a series of small positive wins for individuals/parties, which might imply a leviathan-enforced type of internal reform bargain. But a Presidential-congressional battle would tend to be zero-sum game, and one that historically has not been won by the legislature.

So as a Whig, I’m worried. But as someone who studies the legislature institutionally, I’m getting the sense that this is a big enough disruption of the equilibrium to bring on some institutional change. There’s no solid way to predict, one way or another, if and when that will happen. But is certainly seems like all the ingredients are coming into place.


At a track called Saratoga…

January 6, 2012

You know, when you write a blog you are just constantly surprised at what topics flop and what topics get people talking. Much to my surprise (but warming to my upstate heart), my post on favorite-longshot bias ignited a burst of interest in both the mighty Saratoga Race Course and what it was like to grow up in its shadow.

Luckily, I blogged a 6,000 word essay on all things Saratoga, on my old local upstate blog, Oh, SmAlbany!, back when I was a graduate student who didn’t feel like working on his dissertation. The essay is in three parts — one on the cultural relevance of the track to the local area, one on how to spend a day at the track, and one on how to enjoy downtown post-track. And it’s got a bunch of great pictures!

The entire thing appears below after the jump (click “read more” if you are on the main page)… Read more »

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Horse Races, Real and Political: Intrade’s Favorite-Longshot Bias

January 5, 2012

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

One thing you become quite familiar with at Saratoga, virtually by intuition, is the economic concept of the favorite-longshot bias: horse bettors seem to vastly prefer betting longshots rather than favorites, independent of the true odds on the horses. And since the odds are set by the betting market at the track, this creates an attenuation: horses that should be massive longshots by their true (but unknown) odds of winning (like 150-1) end up selling as only big longshots (perhaps 75-1), while horses that should be ridiculous favorites by the true odds (say, 1-9) end up going off for much less (perhaps 1-2).

As a result, most longshots are absolutely horrible bets (since their pay odds are vastly less than their true odds), while there’s usually a fair amount of value in just betting the favorites (because they pay much better than their true odds would imply). And despite having a century-old reputation as the “graveyard of  favorites” — just ask Man ‘O War, whose only career loss came at Saratoga to, yes, a horse named Upset — savvy horseplayers at Saratoga know that longshots are still for suckers.

Favorite-longshot bias has a long-known and well-documented empirical history in the economic study of the gambling world: using past performances, it has been shown over and over again that bets on longshots lose much more money, on average, than bets on favorites. For example, in the linked study of 6 million horse races between 1992 and 2001, bets on all 100-1 or bigger longshots returned -61%, while bets on all favorites returned -5.5% and utterly random bets returned -23%. Uninformed betting is expected to have a negative return because of the state’s take from the prize pool, which in NY is 16% on win bets. But that only highlights how good blindly betting the favorites can be: if the state wasn’t removing 16% of the prize pool, blindly betting the favorites would generate a significant positive return!

There are two theories about why gamblers tend to behave this way. The first is known as “risk-love.” In this view, gamblers are rational utility-maximizers, and get utility from the excitement of the risk of the longshots, whereas betting the favorite, well, sucks. Anyone who has ever cashed a winning $2 bet at Saratoga for a return of $2.40 (and thus a profit of 40 cents) knows how that feels. The other theory is behavioral: people are not good at discerning between two extreme sizes. And thus gamblers don’t distinguish between 200-1 and 100-1, they are cognitively the same odds. And therefore bettors systematically take 100-1 prices on 200-1 true odds.  And the betting market responds.

I say all this because longshot bias is at least a partial explanation of what you see on Intrade right now, for both the Democratic and GOP nomination markets. Let’s start with the Democratic market:

Intrade Democratic Nomination Market (1/5/2012)

Obama: 94.5
Clinton: 3.0
Biden: 0.5

These prices reflect only the functioning market — where there are actually sellers and buyers — and does not include candidates who have no current offers to buy at any price. As a reflection of the true odds, this seems certifiably insane. I would guess the odds on Obama are much closer to 99.5 (leaving a tiny amount of space for death, massive scandal, or incredible political turn in the party), which means the sum of the true odds of all other plausible candidates can’t be more than 0.5. I would suspect that neither Clinton’s or Biden’s true odds are greater than 0.1.

But the observed odds are easily explained by favorite-longshot bias. Right now, in order to bet Obama, you are effectively laying approximately 17-1 (i.e. bet $17 now and return $1 profit this summer). That might be a nice investment strategy — it looks like a pretty darn stable 5.5% return to me — but it’s absolutely no fun as a gamble. Conversely, Biden at 0.5 looks like a horrible financial investment (a 1 in 200 chance Joe B is the nominee? No way.), but one heck of an exciting gamble — think of the psychological utility you could get from $10 on Biden, which could get you dreaming about two grand every time President Obama has to go the doctor. The Democratic market seems very much to be reflecting a risk-love bias.

Now, let’s turn to the GOP market:

Intrade Republican Nomination Market (1/5/2012)

Romney: 79.9
Gingrich: 5.1
Santorum: 4.8
Huntsman: 4.8
Paul: 2.4
Perry: 2.0
Jeb Bush: 0.3
Bachmann: 0.1
Chris Christie: 0.2
Sarah Palin: 0.1
Paul Ryan: 0.1
Mitch Daniels: 0.1
Buddy Roemer: 0.1

This market strikes me as equally biased, but somewhat different. The existence of the true mega-longshots at 500 or 1000 to 1 seemingly presents a greater possibility that cognitive misperception, rather than risk-love, is at work here, at least for the most extreme candidates. Does Chris Christie have a 1 in 500 chance of being the nominee? I doubt it, but he might very well have a 1 in 5000 chance (0.002%) and definitely a 1 in 50,000 chance (0.0002). Ditto with Bush, Ryan, and Daniels. Those all look like terrible, terrible bets.

But, of course, that’s not the interesting question. What we’d love to know is how the favorite-longshot bias is affecting Romney’s price and the price of the other top tier and second tier candidates. This is, of course, seemingly an imponderable, since we can never know the true odds and we don’t have millions of past performances to empirically examine like we do in horse racing. Still, anyone who’s ever stared up at a 1-4 favorite on the Saratoga board and even passingly thought to themselves “this just isn’t worth it for that return” can probably relate to someone who’s irrationally passing on Romney right now on Intrade.

And the instant you have that feeling, you have proof there’s at least some marginal value in Romney due to the favorite-longshot bias. Now, marginal value is not actual value. Romney’s true odds may be lower than 79.9 for fundamental reasons that are not being captured by the market. But so long as any bettors are passing on Romney in favor of another candidate because it’s just no fun to bet the big favorites, there’s a market distortion that can theoretically be capitalized on.


In Which A Whig Thinks About Recess Appointments

January 4, 2012

I’d sure as hell be one pathetic Whig if I didn’t write about recess appointments today. But you already knew that.

Here’s the backfill: last month, the Senate failed to invoke cloture on the nominations of Caitlin Halligan to the D.C. Court of Appeals and Richard Cordray to head the new Consumer Protection Board. Subsequent to that,  there was a lot of criticism about this use of the filibuster, as many observers pointed out that it was being used to deny confirmation to an agency head as a protest against the agency itself, which, while probably not unprecedented, seemed to be a clear strategic escalation of the use of the filibuster. Steven Benen called the tactic “extortion politics.” Jonathan Cohn likened it to antebellum nullification, echoing Tom Mann’s assessment from this past summer. That’s probably, as Seth Masket noted, a bit overheated, but there’s little doubt that it reflects a crumbling Senate norm and a shift toward what Jonathan Bernstein calls hardball (and which I wrote about here).

Numerous observers suggested and/or urged President Obama to respond by using a recess appointment to fill the vacant offices, which would circumvent the Senate entirely. The Constitution, in Article II, section 2, clause 3, says:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting commissions which shall expire at the End of their next Session.

And today, the President announced that he will do exactly that, filling the vacancy in the Consumer Protection Board with Cordray, and using similar recess appointments to fill three slots on the NLRB.

The problem and controversy can be discovered from just a plain reading of the text, which raises two puzzling issues: first, do the “vacancies that may happen” have to occur during a recess, or can a vacancy that occurs during a session also be filled? Second, what constitutes a recess? As you might imagine, how these questions are answered has a big impact on both the balance of power between Congress and the Executive, as well as Congressional-Executive relations.

The first question was resolved in the 19th century after numerous court decisions: it does not matter when the vacancy itself was created. The latter question — what constitutes a recess?— is still of much dispute, and is one of the reasons that today’s action by the President is controversial. President Obama is making an appointment during a three-day intra-session recess of the Senate; if allowed to stand, such a precedent would go beyond even the most expansive current reading of the clause, one offered by the Justice Department on behalf of the executive in the past — that the Senate must be in recess for at least three days before a valid intra-session recess appointment can be made. (The President is also apparently arguing that the Senate is not even really in session — insert Whig head explosion here — but we’ll get to that in a minute.)

Ok. There’s a lot of spurious partisan writing out there about this, so let’s talk turkey. Bear in mind I’m a whig with a general inclination toward Congress over the Executive, but I’m coming at this from a good-faith point of view.

1. There are two fundamental values in collision here. The first value is legislative control of the Executive Branch of the government. The Founders were quite clear that the Senate should play a role in the appointment and installation of Executive Branch officials. No one disputes this, nor does anyone really question the propriety of Senate confirmation in contemporary times. It’s an excellent check on the President, and a sensible way to share powers between the political branches.

The second value is smooth and continuous functioning of the government. While Congress may be out of session for long periods of time in any given year, the government of the United States operates continuously. If a vacancy exists in the Executive Branch, then there are certain functions under law which may not be able to be executed. Under the Constitution, only officers of the United States may take substantial executive action, and absent a sitting Senate, the only way to create certain officers of the United States is through a recess appointment. Again, the Founders recognized this and sensible allowed for it in the Constitution. However…

2. History and the Founders may no longer be a helpful guide. Every partisan and their radical brother spent today looking for juicy Founder quotes about recess appointments. But a lot of the Founding thought is no longer relevant, because the structure of the congressional calendar is starkly different than it was in the 19th century, in two ways. First, the recesses between sessions of Congress (inter-session recesses) have dramatically shortened. Whereas Congress would often not meet from March until December in odd-numbered years or from June to December in even-numbered years, contemporary Congresses often have inter-session adjournments of only weeks or even just days. So while the President was routinely presiding alone over the government for months on end in the 19th century, virtually necessitating recess appointments, that is very rarely the case now. In that sense, the most pressing reason to even have recess appointments at all — months on end with no Senate session — is gone.

Second, the number of intra-session recesses has grown significantly in the 20th century. During the 19th century, Congress would often sit in Washington for the duration of a session, with few or no recesses of a week or more. Due to advances in transportation technology and the almost year-round sessions, contemporary Congresses tend to include numerous recesses of substantial length, including an annual August recess that may last close to a month or longer.

This raises some interesting normative questions: does a two-week congressional recess really create a disruption in Senate availability such that the smooth and continuous functioning of the government might be in jeopardy if there is an Executive Branch or judicial vacancy? Maybe, but bear in mind that many appointments submitted to the Senate take longer than that to confirm. Even more to the point, if the recess appointment clause was intended to be used during intra-session recesses, why does it allow the appointments to stand until the end of the next session, effectively allowing a intra-session recess appointment to last up to two years? It seems almost certain that such wording was used with inter-session recess appointments in mind, such that they would last only for the duration of one (i.e. the next) session of Congress.

Now, court decisions have rendered most of the questions these facts raise legally moot. After a long list of 19th century court cases, both inter-session and intra-session recess appointment are perfectly constitutional, although they occupy very different footings. President Obama could have appointed Mr. Cordray yesterday at noon, in the brief  interlude between the first and second session of the 112th Congress, and leaned on the precedent of Teddy Roosevelt’s 160 appointments on December 7, 1903 for inter-session appointments, which seemingly require no span of time to be constitutional. But instead he chose to appoint him today — most likely because this will now allow Mr. Cordray to serve for virtually two years (the next session of Congress not ending until noon on January 3rd, 2014) — raising the question of how short a time period constitutes an intra-session recess long enough to qualify for a recess appointment. That’s tricky because…

3. There’s no solid answer to the question of what constitutes an intra-session recess. The Constitution simply doesn’t tell us what counts as a recess and what doesn’t. No number at all. No guidance at all. So all we have is our normative intuition on the political side, and court decisions on the legal side. The problem is that the court precedents tend to defy most reasonable normative evaluation. I don’t think there’s any question that an appointment can wait two weeks; lots of stuff sits vacant for two weeks while the Senate is considering a nomination. But the courts have upheld an appointment made during a Senate recesses of 11 days, and in the 2004 case challenging President Bush’s appointment of William Pryor, the Eleventh Circuit more or less endorsed appointments during recesses of that length or even shorter (the Supreme Court did not hear the case).

One potential hard deck is the 3-day period contemplated in the Constitution for either chamber to adjourn without the other chamber’s consent. That might suggest that the Founders didn’t think recesses of one or two or three days were of serious length (this, of course, assumes that the Founders thought any intra-session recess was of appointment-worthy length, but as noted, that ship has sailed), and indeed the Justice Department itself presented this theory while defending a Clinton recess appointment (attached to a longer recess) in 1993. But without further court guidance, this is an imponderable; our normative intuition says things like “when the Senate recesses overnight, that’s not recess-appointment worthy,” but again, our normative intuition might say the same thing about a two-week recess.

4. On the other hand, President Obama doesn’t seem to making an argument for intra-session appointments during recesses less than 3 days. Based on what is emerging from the White House, it seems like the President’s argument here is not that an intra-session recess appointment is valid during any recess of any length. Instead, the President seems to be making a much more troubling argument: that a two-minute pro forma session of the Senate which includes a unanimous consent order to conduct no business is not really a session of the Senate, and therefore the Senate has currently been in recess for several weeks at this point, clearly within the safe-harbor of court rulings on intra-session recess appointments.

As Stephen Smith points out in a comment on an very good Sarah Binder piece on the topic, this is an argument that might very well be a loser in the federal courts. The Senate unambiguously has control over its own agenda (via the Constitution, Article I, section 5) and the courts would be virtually a lock to not “look behind” the Senate’s own assessment of whether or not it was in session, leaving it clear cut that the chamber has been in session every third day. But set that aside. Whatever the merits of Obama’s argument in the courts, it’s certainly an affront to congressional authority; the Senate can consider whatever it wants whenever it wants, and no Presidential decree about what the Senate is considering and not considering can alter the meaning of the Constitution. The President is certainly welcome to hold his own interpretation of the Constitution, but he is not welcome to interpret the Senate rules on behalf of the Senate.

In the bigger picture, however, this raises the political specter of the pro forma sessions. Such sessions have largely come into play only in the last few years, as first Senate Democrats used them to avoid an inter-session recess in which President Bush could make appointments, and then Republicans followed suit to prevent inter-session appointments by President Obama. Most recently, the House Republicans have been using the constitutional provision that prevents either chamber from recessing without the other’s consent to keep the Senate in session. Some have suggested that this is a bridge too far, that if the Senate wants to stay in session to prevent recess appointments, fine, but when the House is forcing them to, that’s over the line. I’m sympathetic to that argument, but I think it ultimately fails. The House need not justify its own proceedings, nor explain why it remains in session. Just as the Senate rules are the prerogative of the Senate, so the House rules are the exclusive province of the House.

In any case, given that the House can prevent Senate adjournment for more than three days simply by not agreeing to such a recess, then control of either chamber may give an opposition party the ability to block recess appointments, assuming no court is going to bless recess appointments made during recesses shorter than 3 days. This may be good or bad, but it certainly is consequential: the growing backlog of Executive Branch and Judicial vacancies can be partially mitigated with recess appointments; if that safety valve is shut off, the Senate might find itself under even more intense pressure to find political or institutional ways to increase the speed of confirmations, or to reduce the number of positions requiring confirmation altogether. In this way, the President’s actions today are potentially bringing on a crisis, or at least a dilemma of sorts: the Senate may be loathe to give the President expanded recess appointment power, but at the same time unable to move traditional confirmations with the necessary speed. That’s a recipe for institutional change; Obama’s actions may be the exogenous shock that jumps starts them.

5. As usual, the partisan divide is working to the advantage of the Presidency at the expense of Congress. If you glance around at the political press releases or the blogsphere, it’s quite obvious what the alignment is over this issue; Democrats and liberals are supporting the President’s actions, and conservatives and Republicans are opposing it. The normative arguments can be filled in quite easily; Democrats are defending the need to get the agency running and decrying the GOP strategy of filibustering the Cordray nomination, while Republicans are worried sick about Presidential power grabs and are trying to defend the prerogatives of the Senate. We can’t say for sure, but it’s likely that in the converse situation, the arguments would be perfectly reversed. I’ve looked in vain for a process hawk among the Democrats or a Republican argument for a smooth-functioning government, but I’ve yet to find one. So don’t delude yourself — this is almost certainly policy preferences disguised as a normative process debate. But as I wrote yesterday, that’s not surprising.

The problem, however, is that I’m not sure how many Senators would favor each position in a vacuum. That is, if everyone was blinded to the specifics of the situation and the party/ideology of the President was unknown as well as the nomination in question, how many Senators would choose the smooth operation of the government (as manifest by the President being able to fill appointments willy-nilly for vacancies upon which the Senate has yet to act) over Senate control of nominations (as manifest by significant delays in appointments but lack of presidential workarounds). My inclination is to think that most Senators would choose the latter. And that’s worrisome, because the likely outcome of the current situation (as was the outcome under Bush) is that the ability of the President to circumvent the Senate will be enhanced.

There’s no need to be a slippery-slope alarmist here, but the trend is nevertheless worrisome. What we don’t want to end up in is a situation in which it has become the norm for the President to use recess appointments as the primary mechanism of filling the judiciary or the Executive Branch with judges/officers. Obviously, we’re still a long, long way off from that. But we shouldn’t disregard the possibility. For one, as discussed above the conditions and context are ripe for Presidents to seek to expand this authority; Senate confirmations have slowed considerably, and the past 20 years have seen an increase in the use of the filibuster in the nominations process, as the norm against such a practice has dissolved. It wouldn’t be hard for President Obama or any future White House occupant to make the political argument that recess appointments are necessary; it’s not like the President was out there on the stump today giving nuanced constitutional arguments. Instead, he just made a political argument in plain English: there’s an agency here to help people, and it can’t start helping them until it has an agency head. Therefore, I’m appointing one under my constitutional authority. Period. That’s a powerful political argument, and one that should scare a Senate institutionalist.

6. Still, the Senate has weapons of its own. While recess appointments are unilateral actions, it’s not the case that the President is playing strictly unilateral hardball here. Even if the recess appointment power was construed to allow appointment during any recess of any length, the President would still be strongly constrained in his actions. This is, after all, a separated system of shared powers, and there are lots of overlaps. Given that the Senate has the power to disregard the President’s agenda, or cut funding to his priorities, or any other of the myriad powers that overlap between the branches, an equilibrium definitely exists that is different than “the President does whatever he wants.” One tactic Congress has used in the past, and which is currently federal law for certain situations, is to deny pay to recess-appointed officers. But any tactic could be used. Of course, the same partisan and ideology cross-winds mentioned above tend to mitigate these powers, so it’s unknown how far toward the Presidency such an equilibrium would land.

How about a lawsuit that stopped the appointment, would that be a good thing for the Senate? On balance, I think it would be. I don’t think the Senate can condone a Presidential maneuver that allows the Executive to make judgments about whether or not a plainly-happening Senate session is actually a session. Having the courts slap back the President on that one (or make him walk back the argument in briefs) might be worthwhile. And it seems like a winnable case, as the 3-day adjourn consent window might just prove to be the magic bullet the courts need to make a firm ruling. On the other hand, all that would do is institutionalize the strategic pro forma session game, and do little to defuse such hardball. Perhaps a better outcome would be…

7. One possibility is that today’s action could (eventually) trigger Senate confirmation reform. There are lots of ideas floating around for improving the confirmation process in the Senate, ranging from bills to reduce the number of Executive Branch positions requiring confirmation all the way up to altering the Senate rules regarding the filibustering of Presidential nomination. And while none come without side effects (and potential unintended consequences), pressure may be growing for such action. If the alternative is a world in which recess appointments become more common as an everyday substitute for routinely filibustered nominees, the Senate may decide that it prefers strong influence in nominations over minority rights in confirmations. Again, I’m not saying we’re there yet — today is just one nomination, and by next week you probably won’t remember it — but as with so many things in the Senate right now, it certainly feels like the cords of institutional stability are growing taut, with no indication of when (or even if) they may snap.

8. As a last thought, don’t let the partisans fool you. Recess appointments have been used strategically and regularly by Presidents since the 1790’s; this isn’t something that was invented by President Obama. Or President Bush. Virtually all Presidents have routinely made recess appointments. On the other hand, today’s action by President Obama is almost certainly an unprecedented extension of the recess appointment power, and it is, while perhaps constitutional, nothing to waive away like so much nonsense. It’s true that this is just one appointment on one day, but these sorts of presidential actions tend to become the precedential basis for future actions, especially when they go unchallenged.

Update (8:35pm): Somehow I failed in all of this writing to link to any of Jon Bernstein’s various posts on the matter over the last few months. That’s an obvious oversight, and I recommend starting with his excellent post from today, which has jumping off points for his older stuff. I disagree slightly with his take (he’s somewhat more receptive to the idea that Obama’s actions today are reasonable, constitutional, and good), but I agree with the thrust of his piece, especially as it regards the possibility of this propelling institutional reform in the confirmation process.


The Difficulty of Institutional Reform

January 3, 2012

Happy New Year!

I’m not going to comment much on Iowa/caucuses today, because it’s so far from my field of competence that my thoughts probably have no marginal value, and definitely none in reference to the value of your time. I do want to, however, point you toward a few posts that I think are definitely worth reading: Nate Silver did his final prediction round-up here, Jonathan Bernstein explained how to think about Iowa here and here, Brendan Nyhan made a key point about media coverage here, and Ezra Klein had a nice distillation of everything already mentioned here. For a bit more whimsy, you might also want to try Dave Weigel’s post on the twitter cliches of Iowa coverage, which got me laughing.

I’d also refer you to Bernstein’s election day patriotism post. That stuff always gets me. As you probably know, I’m a total romantic sucker for the pageantry and symbolism and raw logistics of the democratic process, even the messy parts. But I’m also a pretty hard-nosed realist about the fragility of open societies and the difficulty of instituting and maintaining a stable democracy. It’s absolutely a blessing for modern America that such a government has been handed down to us, and it’s a triumph for human freedom every time another nation of people successfully unshackles from authoritarianism and realizes such a system.** I don’t think there’s any question that democracy is objectively the least-worst real-world system known to man. And so while I’m a huge supporter of citizens criticizing our political leaders and government institutions and electoral processes, I also think it’s important that people remember how fortunate we are to live under such an imperfect form of government. And there’s no better time for that than election day.

This also brings me to what I want to discuss today: institutional reform. And I mean that in the widest sense possible — everything from the above-mentioned toppling of dictators in favor of democracy all the way down to changing chamber rules in Congress or the partisan primary calendars. Now, there’s always a lot of talk about institutional reform, but I can’t really remember a time when it seemed so constantly at the forefront of the political agenda. Maybe I’m just a hammer seeing a lot of nails, but I feel like it has become a secondary story to just about everything: in foreign policy, you’ve got the shakeout of the U.S. leaving Iraq, plus the Arab Spring in Egypt and elsewhere, all encased within a continuing debate over whether regime change is a legitimate or successful basis for a foreign policy of the United States. Back at home, we’ve got the ever-more-simmering debates over the filibuster in the Senate, the quadrennial rancor over the primary process for presidential nominations, and, oh yes, seemingly everyone and their radical-moderate brother trying to undo the partisan tension in Washington.

In the abstract, it seems great that there are well-organized efforts to deliver institutional change to American politics; it’s almost certainly the sign of a healthy democracy (or at least a sign against a democracy in fast decay). But it’s hard to get enthused when you read the specific reform proposals of such outfits as No Labels or Americans Elect. In fact, it’s rather depressing. Take the 12 point action plan of No Lables, for example. All of their proposals tend to fall into one of three categories: ultimately useless ( i.e. having Members of Congress not sit by party during the State of the Union address; barring Members from taking pledges; off-the-record bipartisan gatherings; joint leadership committees; 5-day congressional workweeks; nonpartisan fiscal report to Congress), plausibly good but not exactly novel (i.e. end the filibuster; presidential question time; anonymous discharge petitions), and horrible ideas and/or dangerous cures and/or unconstitutional (no negative campaigns; automatic confirmation of presidential nominees absent Senate up/down action; blocking Member pay until appropriations are done).

And those are just the proposals, forget about how on Earth you’d get them implemented. And this leads to the question at hand: why is institutional change so difficult? I would suggest that, with the broadest brush, there are three answers to this question: conflicts between normative values and strategic self-interests; the wide scope of institutional reform; and biases against change. I think that most people assign greater weight to the latter (the anti-change biases), but my sense is that the first two are much more fundamental. Let’s take a closer look:

1. Conflict between normative values and strategic self-interests. In a nutshell, the idea here is that your reform proposal might be a great idea that everybody loves in a vacuum, but it’s almost certainly going to result in political outcomes that are different than they otherwise would have been. And therefore, it’s going to make political actors consider how the outcomes differ in the short-run and weigh that against the normative long-term value of the reform. And you will not get much support for your reform from short-term outcome losers.

This isn’t rocket-science, but I don’t think you can overestimate how important it is in all situations of potential institutional change. It’s almost so obvious that it goes unspoken. After all, the implicit purpose of institutional reform is to affect how fixed preferences are translated into outcomes. If the outcomes aren’t going to change, then your proposed reform isn’t good or bad, it’s just a waste of time, like the proposal to have Members sit in a bipartisan fashion at the State of the Union Address. But when the outcomes are going to change, in many cases the normative value of the reform ceases to even be a consideration among political actors or voters. Interests dominate. (And that’s probably a good thing, but it’s definitely a consequential thing). Like Bryan said, the people of Nebraska are for silver and I’m for silver, I’ll look up the arguments later.

Similarly, trying to assess the normative value of an institutional change is really hard, because of the strategic interests of the actors. Good government altruism aside, institutional change is often proposed specifically for the purpose of adjusting particular outcomes. Again, this is so obvious it’s barely mentioned. But it has an important effect: the normative value of the reform itself is difficult to gauge. Is it being proposed for pure intentions, or to shift short-term outcomes? Likewise, the motivations of the short-term winners are going to be questioned: do they really think it’s a good idea to get rid of the filibuster and have some other state besides Iowa go first int he primary process, or will those things just help them pass their current legislation and give their preferred candidate a better chance at the nomination and their home state more say in the process?

Consider something like the voting age. It would be (and was) a significant institutional change to raise or lower it. And there might very well be strong normative arguments for letting 14 year-olds vote, or for returning the constitutional maximum-minimum voting age to 21. But there’s little chance such normative arguments would play the role of anything but just that, arguments. Much more likely is that the outcome of such a move would be a prime consideration of any supporter or opponent. How would a lower or higher voting age play out? It’s not obvious, but the general intuition is that a lower age might help liberals, while a higher age might help conservatives. And you can bet dollars to donuts that one sentence would be a better predictor of opinion than almost anything else. And the normative arguments would simply flow from there.

And thus the situation almost always becomes one in which normative values cannot be trusted: they may be genuine or they may be strategic rationalizations for underlying short-term interest winners. From the point of view of an individual political actor or voter, the inability to trust the normative information creates an incentive to rely on an evaluation of the strategic outcomes. And thus, when universalized, you end up in a situation where everyone may be safer relying on their interests to evaluate a reform, rather than normative concerns. Which reduces institutional change to a process fundamentally about short-term outcomes, which are guaranteed to be in conflict.

This is one reason that reformers sometimes propose blind or random change. For instance, one popular suggestion for abolishing the filibuster is to have the abolition take place 12 years down the road, when no one knows which party will be in the majority in the Senate or who will control the Presidency. The appeal of such a suggestion is obvious: it is explicitly trying to remove the short-terms strategic interests calculation from the decision-making process. By blinding the political actors from knowledge of how the reform will affect outcomes, people are bound to put more weight on their normative judgements about the value of the reform. Proposals to randomize the primary calendar offer the same benefit: with the exception of the existing winners (like Iowa and New Hampshire), strategic support based on outcome is less likely to jeopardize the success of the reform.

Of course, the converse is also true. Without short-term winners, it’s often hard to find people who will work hard for institutional change. There are definitely people out there who just want to Do The Right Thing, but they are (1) rare, (2) hard to identify, and (3) not usually backed with a ton of money or resources or hard-working volunteers. Now, I’m not trying to discredit reform or reformers here. But it’s simply true that even the normatively best reformers are usually sponsored and midwifed by the sweat of those who stood to benefit from the short-term changes to the outcomes.

2. The wide scope of institutional change. None of what was said above, of course, is either groundbreaking or limited to institutional change. It’s just as plausibly applicable to policymaking as it is to the electoral and institutional structures which provide the rules for policymaking. And as I’ve written about before, one of the fundamental blind spots of democracy is the difficulty of dealing with issues that entail long-term benefits but short-term costs.

But institutional reform is particularly tricky because any individual change has the ability to affect a whole array of policy outcomes.  And therefore, those who perceive the short-term outcomes to be against them can be quite diverse indeed. This is often carried through the reality of varying intensity of preference among political actors. Consider the filibuster: when Senators contemplate whether or not to abolish it, they are not just thinking about whether their party is currently in the majority or whether they want the current policy agenda to pass, but instead they are thinking about the individual policies most dear to them that they do not want to change.

In effect, changes to current institutional arrangements do not just have the ability to create short-term losers, they have the ability to transform everyone into a short-term loser at the same time. This partially explains why serious filibuster reform has failed to get a majority vote in the Senate the few times it has successfully been brought to the floor. Most Senators don’t want to reform the system, regardless of who the short-term winners will be, because they worry (perhaps correctly) that they will be made a short-term loser because reform will endanger the outcomes they care most about.

3. Biases against change. This is perhaps the most commonly-cited reason that institutional change is difficulty. There are at least two flavors. First, there’s the institutional structure itself: most institutional reforms are going to require supermajority support at some point or another, or at least will run into multiple veto-players along the way. A bare majority is rarely good enough for serious institutional reform. In one sense, it’s odd that we even call this a bias. Because it actually makes strong normative sense. It’s would be a strange world indeed where the a bare majority could always adjust the rules of the game willy-nilly. And that’s as true for meetings in a church basement as it is for amending a national constitution. So part of the bias is simply a different bias we have, one that favors majoritarianism.

Second, there seems to be a cognitive bias in most people against extreme negative outcomes. And therefore, people will usually take mildly worse average results to avoid uncertainty that will yield better average results but also high variance that may occasionally result in strongly negative outcomes. As discussed above, institutional reform is resides in the world of uncertainty; not only are there unintended consequences to any institutional change, but information about those consequences is very difficult to trust. Therefore, actors are likely to judge the status quo more favorably than it might deserve. Marginally improving things is great, but unless the status quo is highly untenable, individual actors often prefer to maintain it rather than choose an alternative that might results in strongly negative results.

Of course, all of this leaves the $64k question: how does institutional change actually happen? That’s best left to another post. Maybe next week.


**Please don’t mistake me for a neo-conservative here. I’m not interested in using war to build democracies. In fact, I’m not really interested in war at all. Or in trying to build democracies through destabilization of non-democratic regimes. I simply mean that we should cheer without reservation when it happens, or modestly help when asked.


GOP Primary Candidate Venn Diagaram #8: Ron Paul

December 31, 2011

Other Candidate Venn Diagrams

Newt Gingrich , 12/19/11

Jon Huntsman, Jr., 12/20/11

Willard Mitt Romney, 12/21/11

Michele Bachmann, 12/22/11

Rick Perry, 12/23/11

Herman Cain, 12/25/11

Rick Santorum, 12/28/11

1 Comment

GOP Primary Candidate Venn Diagram #7: Rick Santorum

December 28, 2011

Other Candidate Venn Diagrams

Newt Gingrich , 12/19/11

Jon Huntsman, Jr., 12/20/11

Willard Mitt Romney, 12/21/11

Michele Bachmann, 12/22/11

Rick Perry, 12/23/11

Herman Cain, 12/25/11

Ron Paul, 12/31/11

1 Comment

And that, as they say, is what makes a horse race

December 27, 2011

I’m reasonably confident (i.e. I’ll lay you 30-1 or 40-1, i.e. I think there’s a 97%+ chance)  that Mitt Romney is going to be the 2012 GOP nominee for President. Now, I could be wildly wrong in my estimation. And regardless of whether Romney wins or not, we’ll never know for sure. Unless you assign a 100% or 0% chance of something occurring, any observable single-trial result will plausibly conform to your estimation.

So leave that aside.What I want to talk about here is why the race appears so much tighter than that. And the reason is simple: virtually everyone involved has an incentive to portray the race as still wide open. Let’s take a look:

1. The media. This is the most obviously biased actor. Uncertainty is the press’ best friend in elections. You can’t sell advertising during debates that no one wants to watch, and no one wants to watch a debate for a race that is over. Ditto for election night coverage in individual primary states. No one is going to watch the returns if there is only one competitive candidate. So political news ratings/sales will be higher if the horse-race continues until late spring or (god help us) to the convention (which it won’t). Therefore, the press has every reason to play up the competitiveness of the race, even after everyone else has more or less conceded it is over.

2. The Democrats. President Obama and other political opponents obviously have an interest in the GOP primary actually being drawn out, because it would sap the collective resources of the candidates. But Democrats also have an incentive to portray the race as competitive even if it is not, for at least three reasons. First, it ties the reasonable and stronger candidates (like Romney) to the unreasonable and unelectable candidates. If GOP voters can’t choose between Mitt Romney and Ron Paul, then it might reason that Romney is similar to Paul, or that GOP voters think they are both reasonable candidates, or both. Second, it fosters the belief that GOP voters don’t really like their best candidates, or that the party is caught in some sort of civil war. Either of those beliefs might turn off moderate voters. Finally, there’s the plausible meta-possibility that pretending an election is close may actually make it closer, or at least draw it out (but more on this later.)

3. Iowa and New Hampshire. If the race were over and everyone knew it, then there would be a lot of downsides for the early primary states. Candidates wouldn’t be visiting constantly and making promises, local politicians wouldn’t have the chance to appear with candidates and make endorsements, and local media wouldn’t be able to host debates, sell advertising, and make more money. I mean, you don’t see President Obama prancing around Iowa and New Hampshire non-stop for the Democratic nomination, do you? One of the advantages of going first in the sequential primaries is to have leverage in choose between competitive candidates. But a second reason is to extract promises from whoever ends up winning the nomination, and that’s a whole lot easier if the race appears competitive.

4. Later Primary States. Same logic applies here as above. Many of the benefits of holding a primary are only conferred if the primary is competitive. But again, that threshold is met not by the race being undecided, but by the appearance of the race being possibly undecided.

5. Pollsters. There was a long (and wonderful) nerdfight earlier this year on the internet over the relative importance of polling and fundamentals 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 throws the lion’s lot with polling needs to believe that the race is still at least somewhat competitive, because Romney doesn’t have anything near a majority in the national polls, and can be found to be losing in state polls in Iowa. If the race is over right now, then the polls are rendered very blunt instruments of analysis.

6. The non-Romney candidates. The basic link here is resources. If the race is over and everyone knows it, you will not be receiving much in the way of donations, volunteers, endorsements, or anything else that can help you win. That’s probably also true if you have less than a 2% chance and everyone knows it. But what if you have a 2% chance and everyone thinks you have a 25% chance? Now that’s a situation you might want to create. Sure, you’re still a longshot. But at least you will have a compelling answer on the phone when someone wants to know why they should give you $2000.

7. Romney. At first glance, this seems ridiculous. And on one level, it is: if Romney has a 85% chance of winning, he might be better off convincing everyone that he has a 100% chance of winning, which would dry up his opponents fundraising and give him that last 15%, which would plausibly allow him to turn his attention to the general election and begin his pivot.

But what if Romney does indeed have a 98% or 100% chance of winning the nomination right now, he knows it, but everyone else (see above) is pretending it’s not true? He can’t just go out and say it or act on it in any way, because he could conceivably hurt himself. No voters want to hear it, everyone else would be denying it, and he would sound arrogant. So at the bare minimum, Romney has to play along with the competitiveness thing for now.

But he also has to consider resources. The primaries are an excellent opportunity to mobilize volunteers in various states, gather data like phone numbers, expand your fundraising base, and get people excited. A continued primary season aids this; by the time you get to the last primaries, it’s not really possibly to mobilize and activate a large cadre of volunteers. Now, at some point (rather early, I would say) the benefits of turning to the general election outweigh the benefits of being able to highly mobilize resources in sequential primary states. But that doesn’t happen, I don’t think, until after all the other actors stop pretending the primaries aren’t over. And so at least until then, Mitt has the incentives, just as they do, to publicly see this thing as a race.

8. Political Junkies. You really think my wife would put up with me talking and writing about this endlessly if I admitted it was over?


GOP Primary Candidate Venn Diagram #6: Herman Cain

December 25, 2011

Other Candidate Venn Diagrams

Newt Gingrich , 12/19/11

Jon Huntsman, Jr., 12/20/11

Willard Mitt Romney, 12/21/11

Michele Bachmann, 12/22/11

Rick Perry, 12/23/11

Rick Santorum, 12/28/11

Ron Paul, 12/31/11


On Ron Paul + Linkin’ Logs

December 23, 2011

A quick word on Ron Paul, then some links and my schedule next week.

Given all the stuff that’s come out over the past few days — and it’s just way too much to link to, just get on the internet or twitter and open a few doors — I don’t think any libertarian in good conscience can continue to support Paul as a candidate in any capacity. I certainly can’t. There’s no reasonable doubt left that Paul willfully lent his name to some mixture of very ugly segregationist thought crossed with the conspiratorial ideology of an anti-government militia man. Now, people can change (i.e. Bobby Byrd) and you can associate with ugliness for the greater good (i.e. northern Democrats during the 20th c.), and those sorts of rationalizations are fine as far as they go. But I’m not running a party and Ron Paul’s not a serious candidate. So I’m done with him. I was probably going to vote for Gary Johnson in the general anyway. So that’s fine.

But that doesn’t mean there’s not room for regret. All this makes me very sad for what could have been. For all the grave-dancing going on around the Internet right now by liberals and conservatives alike, I’m not afraid to say that the discrediting of Paul comes with some very serious negatives for the Republican party and for America. He was more or less the only person on the debate stage this year who cared one bit about civil liberties or the prospect of reversing the unsustainable American empire. And for voicing that, I’m grateful to him. To the degree that his positions on those issues are marginalized, and to the degree that Romney and Gingrich and whoever else is left do not have to grapple with them, it’s our loss.

I thought Jonathan Bernstein had a nice take on why different people support Paul, and what the revelation of these newsletters means for those people. I definitely fall into the camp that thought of him not as a serious candidate, but as a positive force in the party and a protest vote against what I believe is a conservative ideology gone off the rails. Needless to say, his economics were beyond kooky and many of his positions too extreme for my pragmatic libertarianism, but I admired his foreign policy honesty and loved his civil liberties stances. It’s the endless frustration of a thinking libertarian to have to deal with racists and conspiracy theorists and plain old crackpots. How we have now gone 10 years down the post-9/11 road and still haven’t been able to find a libertarian politician who can credibly fight for the mantle in either party makes me shudder that it might not be possible. And so we’ll keep waiting. For who, I do not know.

But I do know that it will never be Ron Paul.

Anyway, here are a few links from my reading this week:

I haven’t really written on the payroll tax battle per se, and that’s because there are just a million good takes things to read. I suggest starting with Sullivan’s roundup, and branching out from there.

Here’s my old grad school friend Tom Pepinksy on exogenous variation in comparative politics.

Polls is magic, says Roger Simon. You are a moron, says Seth Masket. John Sides agrees.

Here’s a libertarian cause that is uniting the conservatives and liberals: stopping SOPA.

Matt Yglesias asks why we subsidize college at all, rather than just make transfer payments to the poor. Good point.

Kevin Drum looks at the disaster that was the LA school district trying to get rid of junk food in the lunch room.

Blogging will be spotty over the next week — we’re headed up to northern New York for Christmas — but I’ll definitely post the remaining entries in the GOP Candidate Venn Diagrams series, and probably a few other items. Happy Holidays to all and safe travels.

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GOP Primary Candidate Venn Diagram #5: Rick Perry

December 23, 2011

Other Candidate Venn Diagrams

Newt Gingrich , 12/19/11

Jon Huntsman, Jr., 12/20/11

Willard Mitt Romney, 12/21/11

Michele Bachmann, 12/22/11

Herman Cain, 12/25/11

Rick Santorum, 12/28/11

Ron Paul, 12/31/11

1 Comment

GOP Primary Candidate Venn Diagram #4: Michele Bachmann

December 22, 2011

Other Candidate Venn Diagrams

Newt Gingrich , 12/19/11

Jon Huntsman, Jr., 12/20/11

Willard Mitt Romney, 12/21/11

Rick Perry, 12/23/11

Herman Cain, 12/25/11

Rick Santorum, 12/28/11

Ron Paul, 12/31/11


North vs. South (side of the Capitol, that is)

December 21, 2011

“The Republicans? They’re just the opposition. The Senate is the enemy.”

-variously attributed (usually to former Speaker Tip O’neil)

There’s really nothing quite like a good inter-chamber standoff on the Hill. Most of the time, I think, inter-chamber conflict is overstated; many of the disputes are partisan rather than chamber, and the chamber leaders tend to have good bargaining relationships. But when things break down, they can really break down. And that’s when you can start seeing some real fireworks, as staffers speak their minds and/or defend their respective institutions.

Now, the current politics of the payroll tax — with the House Democrats and most of the Senate pitted against most of the House Republicans —  isn’t a strictly House vs. Senate issue. A classic inter-chamber fight would have the same party in control of both House and Senate, mitigating the partisan dimension.  And we’re nowhere near the inter-chamber acrimony of the early 90’s. But many of the underlying structural and institutional factors that create classic chamber disputes are visible here, and thus it’s worth reviewing what exactly those factors are. To wit: why do two legislatures, democratically-elected by the same nation, regularly not see eye-to-eye on public policy?

Let’s break the factors into three categories: structural, institutional, and social-cultural.

Structural Factors

1. Different Member time horizons. Representatives face re-election every two years; Senators every six. As the Founders well-knew when they intentionally created this arrangement, this would put the Representatives much closer to the short-term passions of the voters, in two ways: first, new Representatives would be elected in response to temporary popular passions, while those same passions would pass over Senators not up for election; second, existing Representatives would need to more closely monitor, relative to Senators, the temporary popular passions of the people as they considered how to beset represent their constituents. Representatives are, on average, more attentive than Senators to short-term constituent positions and concerns. They tend to go home more often, they are less likely to reside in Washington, and the often dedicate a larger percentage of staff to constituent relations.

2. Different electoral cycles. This follows from the time horizons, but isn’t always appreciated. All of the Representatives are up for election next year, but only 1/3 of the Senate seats will be contested. Neither of those facts are products of the length of the term; we could elect half of the membership of the House each year, and we could elect all Senators every six years. There are two upshots to the existing arrangement. The first is compositional: only 1/3 of the Senate is composed of people elected in 2010, but the entire House was elected then, including a sizeable number of freshmen. The second aspect is prospective:  every Representative will stand election next fall, and waiting for each of them will be an opponent who is both cognizant  — and constitutive  — of the prevailing popular passions.  Not every Senator will face that test. And the entire Senate will never face that test at the same time.

3. Different constituencies. This is more or less self-explanatory, but there are a couple of sub-points here. First, there’s the Madisonian idea of larger constituencies producing more moderate Members, due to localized extremism that is washed out in aggregation. But there’s also the question of district construction in the House — i.e. gerrymandering — that is not a factor in the Senate. House districts drawn to protect incumbents may end up producing more ideologically extreme Members on both sides, while still tending to wash out the vote at the statewide Senate level.

The Founders institutional solutions for their normative desires didn’t always work out, but these, for the most part, did. The famous analogy is the Senate as  the “cooling saucer” for the “hot tea” produced in the House, which is allegedly how Washington explained the chambers to Jefferson upon his return from France, having missed the Constitutional Convention. As Madison wrote in his convention notes, “the use of the Senate is to consist in its proceedings with more coolness, with more system and with more wisdom, than the popular branch.” One intriguing aspect of this that is relevant right now is that the “Senate as saucer” theory implies House action and Senate resistance, which naturally fits with the inertia of the federal legislative process. But Madison doesn’t contemplate the opposite: Senate demands for action and House resistance. What happens when the hot tea has the inertia of inaction on its side?

Institutional Factors

1. Majoritarianism vs. consensus. The Rules of the House and the Rules of the Senate strongly influence policy outcomes in each chamber. Most people are now familiar with the key difference: the House is structured to allow a majority to work its will; the Senate is structured as to require supermajority consensus for positive action. This goes beyond the issue of the filibuster in the Senate. For example, House rules allow the majority to easily alter the rules, which in turn makes controlling the amendment process quite trivial. In the Senate, on the other hand, special rules cannot be written by the majority, meaning that the amendment process is usually negotiated by unanimous consent, which gives the minority much more leverage over the substance of the deliberations.

2. Leadership power. While it’s true that the power of the leadership ebbs and flows over time in the House, in general the backbench Representatives have less individual institutional power in the House than in the Senate. Part of this is simply a numbers game: less Senators means greater opportunity for less senior Members to hold powerful committee slots. But it’s also a product of the rules (for example, consider how important unanimous consent agreements are), the structural features of the chamber (i.e. staggered time-horizons) and the chamber culture. The party caucuses in the House usually have an easier time keeping their backbenchers in line, and they can usually afford to lose a few. In recent decades, this has grown more stark, as leadership power has increased in the House while decentralization has perhaps individual power in the Senate.

Remember, these factors are independent of the structural factors. Even if both chambers were composed of Members chosen by identical electoral systems, these factors would create a situation in which the partisan majority in the House could routinely pass its legislative agenda in a pretty clean form, while the Senate would need to accommodate wider points of view, if it could pass the legislative agenda at all.

Social-Cultural Factors

1. Citizen perception. It may be the case that citizens have different preferences for Representatives and Senators. That is, an individual voter might choose one candidate for House, but would not choose the same candidate for the Senate. I don’t have any empirical evidence for this (though it probably exists), but there’s an easy theoretical circumstantial case to be made: the Senate has a set of responsibilities that the House does not have — judicial and executive branch nominations; treaty ratification — and voters might weigh these responsibilities when assessing candidates. If this is the case, then you might find that, independent of structural and institutional factors, Representatives and Senators elected by identical constituencies might not agree on policy, if those policy disagreements correlate with voter choice discrepancies for the respective offices.

2. Chamber patriotism. There’s an old joke on the House side of the Capitol that involves a Representative winning election to the Senate. It varies in its telling, but the punch line is always  and now the average IQ of both chambers has increased.  It’s a joke that can be retold often: historically, about 30-40% of Senators in any given Congress had previously served in the House. Of course, as I wrote in this blog post, the joke is hardly ever told on the North side of the Capitol; the number of Senators who go on to serve in the House is very small.  The last Representative to have previously served in the Senate was Claude Pepper, who served in the Senate from 1936 until 1951, and in the House from 1963 until 1989.

What independent effect might this have? It’s just speculation, but my guess is that in a situation where you have two aggregate groups that are ostensibly equals in terms of power, but are structurally designed such that most individuals would prefer to be in one rather than the other and that virtually all individuals who change groups go one direction, you are bound to occasionally end up with the dual emotions/feelings of superiority and jealousy. And those two feelings can be powerful players in political outcomes, independent of the structural and institutional factors that gave rise to them.


GOP Primary Candidate Venn Diagram #3: Willard Mitt Romney

December 21, 2011

Other Candidate Venn Diagrams

Newt Gingrich, 12/19/11

Jon Huntsman, Jr., 12/20/11

Michele Bachmann, 12/22/11

Rick Perry, 12/23/11

Herman Cain, 12/25/11

Rick Santorum, 12/28/11

Ron Paul, 12/31/11


Some Quick-hit House Floor Notes

December 20, 2011

A few interesting things on the House floor today:

1. The House adopted a special rule today (H.Res.502; here is the committee report from the Rules Committee) to take up the Senate amendment to the payroll tax bill and to disagree with the amendment and propose a conference. Last week, I brought the full-court geekery explaining special rule layover waivers and the special rule process in general. H.Res.502 is a nice compliment to that discussion: section 5 of the rule specifically waives the chamber rule requiring a two-thirds vote to consider a special rule on the same legislative day it is reported from the Rules Committee from now until January 15th, which is two days before the second session of the 112th Congress is scheduled to start.

Since the House was originally scheduled to close the 1st session of the 112th this week and is unlikely to take up major legislation other than the payroll tax and related items, the waiver more or less gives the House flexibility to act quickly on such deals between now and the start of the second session. As noted last week, the chamber rules allow same day consideration in the last days of a session, but that provision is often ineffective since (as is the current situation) the the session adjournment date is rarely known in advance.

2. I thought Jordan Ragusa’s post today regarding the House move to reject the Senate amendments and propose a conference was quite good (although I mildly disagree that the conferees matter much in this situation; they are almost certainly just proxies for the chamber leaders). Steve Benen was a bit annoyed this morning about the procedural method that the House was using to take up the issue, but, as Jordan points out, it wasn’t an unusual procedural action. Is the politics frustrating? Sure. But are the tactics some sort of convoluted invention? Not at all.

3. Representative Edwards (D-MD) raised a question of privileges of the House and offered a resolution (H.Res.504) disapproving of comments Representative West (R-FL) made earlier this week about the Democratic Party. Such a motion is privileged for consideration but only requires immediate action by the chair on the matter if it is offered by the majority leader or minority leader. When offered by anyone else, the chair can postpone ruling on whether the resolution qualifies for consideration under the chamber rules for two days. The chair did postpone, but only until after the debate on H.Res.501. Upon taking up the question of privileges again, the chair ruled that it did qualify, and the resolution was read in full by the clerk. Debate on the resolution then proceeded under the one-hour rule. Representative Price (R-GA), however, immediately moved to table the resolution, and the motion to table was agreed to, which kills the resolution.

4. A lively colloquy was held between Minority Leader Hoyer (D-MD) and Majority Leader Cantor (R-VA). A colloquy is nothing more than a back and forth discussion between two or more Members, accomplished procedurally in the House by a Member gaining the floor for some period of time and then yielding to the other Member as necessary for discussion. The floor leaders regularly have a colloquy at the end of a workweek to discuss the upcoming schedule, but today was different because the colloquy occurred in the middle of a series of votes, which meant that most of the House membership was in attendance for it. This led to some cheering and mild booing as the leaders discussed the upcoming schedule.

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GOP Primary Candidate Venn Diagram #2: Jon Huntsman Jr.

December 20, 2011

Other Candidate Venn Diagrams

Newt Gingrich , 12/19/11

Mitt Romney, 12/21/11

Michele Bachmann, 12/22/11

Rick Perry, 12/23/11

Herman Cain, 12/25/11

Rick Santorum, 12/28/11

Ron Paul, 12/31/11


GOP Primary Candidate Venn Diagram #1: Newt Gingrich

December 19, 2011

Other Candidate Venn Diagrams

Jon Huntsman, 12/20/11

Mitt Romney, 12/21/11

Michele Bachmann, 12/22/11

Rick Perry, 12/23/11

Herman Cain, 12/25/11

Rick Santorum, 12/28/11

Ron Paul, 12/31/11


Link’in Park

December 16, 2011

John Sides and friends on whether or not GOP primary voters care about electability.

Seth Masket explains why all the cultural-divide-predicts-election stories are worthless. Jordan Ragusa follows up.

This Nate Silver forecast post for Iowa is a good read for thinking about how to forecast, although a bit out of date in those fast-changin’ Hawkeye polls.

Ta-Nehisi Coates shoots down all your fantasies about how you would behave if you were a slave or a poor black kid. He then reacts to some Megan McCardle comments here.

Andrew Sullivan gives his GOP primary endorsement to Ron Paul. It’s kind of a left-handed endorsement but — hey —  I’m left-handed and I agree with more of it than I don’t!

Meanwhile, some idiots are arguing that being left-handed doesn’t make you smarter. yeah, right.

Jon Bernstein on why there ain’t gonna be a new candidate in the GOP race. And here with a great reminder of why democracy isn’t perfect, but it’s still the best.

What does Santa’s workload profile look like?

Matt Yglesias had a couple of nice posts (here and here) on online piracy. And he models a Skyrim shock to the economy here.

Ezra Klein offers some preliminary thoughts on the Ryan-Wyden Medicare plan.  A wider roundup from Sullivan here. I expect we’ll be hearing a ton about this in the coming weeks.

Glenn Greenwald is as depressed as I am that Obama is going to sign the NDAA that includes indefinite detention. Balko mocks POTUS and Congress for their behavior on Bill of Rights Day.

How drunk can you get at your office Christmas party?

Stephen Griffin is starting a series of posts about war powers, based on his forthcoming book.

Randy Bachman describes how the first chord of A Hard Day’s Night is actually played.

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Tie Goes to the…

December 15, 2011

Josh Krashaar wrote today about the possibility of a tied electoral college, 269 to 269, which would hand the election to the House of Representatives, since neither candidate would have a majority.

Way back in October 2004, I wrote a piece which raises a little-known fact about such House-thrown elections: the 12th amendment puts the top three electoral vote recipients on the ballot in the House. This was obviously intended to manage the (then) more likely scenario of no one getting a majority because three or more candidates won votes, but it would hold true in a tie scenario. Which means that electors in the electoral college — particularly those aligned with the party that did not control the most state delegations — would have incentives to strategically vote not for their assigned candidate, but for a third candidate, to create a three way race. This could create wonderfully crazy situations.

Anyway, the full article appears below. Enjoy.


Interested in becoming president this year? If so, hope for an electoral college tie. With an unlikely, but plausible, perfect tie — 269 electoral votes for both George W. Bush and John Kerry — anyone meeting the Constitutional qualifications could end up president. Here’s how.

Most people know the electoral college, and not popular vote, decides presidential elections. Many people also know that if no one gets a majority of electoral college votes the Constitution directs the House of Representatives to choose the President. This has happened twice (not counting 1876, a technically different situation) — in the strange tie of 1800 and the 4-way election of 1824. The contemporary prospects for a House election are slim. Only an electoral tie — or the longshot possibility of a third party winning electors — can produce it. However, a tie is plausible this year: if all states vote the same as 2000 except New Hampshire and Nevada, the electoral vote would be 269 to 269.

An electoral college tie would produce overwhelming media attention on the possibility of “faithless electors“, who disregard the vote return in his/her state and pick whichever candidate he/she wishes. In 2000, such a move by three electors would have produced a Gore victory. Earlier this month, a Republican elector, Richie Rob, made rumblings that he might not elect Bush if the President wins West Virginia.

A more intriguing, and potentially more consequential, possibility is an elector “shedding” a vote to a 3rd candidate. In an election thrown to the House, the 12th amendment specifies to choose from the top three electoral vote recipients. In a tie, only Bush and Kerry will have electoral votes, unless some elector decides to shed his vote, making the outcome 269-268-1. Why would an elector do this?

It’s simple. Shedding a vote would still send the election to the House. And currently, the Republicans would handily win a vote between Bush and Kerry. Democratic electors thus have an incentive to get a third candidate on the House ballot — particularly a centrist who could draw moderate Republicans into a coalition with the House Democrats to defeat Bush. To succeed, it would have to be a prominent moderate Republican, and it would have to be someone willing to attempt a revolt in the Republican party. It would almost have to be John McCain.

While McCain might reject this and throw his support behind Bush, he also might seize the opportunity, much like Aaron Burr did in 1800. It would be his chance to reshape the GOP. He has never personally liked Bush. And lest we forget, it could make him president. Certainly there are House GOP members who would prefer a moderate Republican like McCain over Bush.

Bush Republicans would obviously try to prevent such a revolt. McCain, however, would not need many GOP defectors to make it work. The 12th amendment happens to also specify that the House vote is by state delegations, not simple majority. To win, you must get the vote of 26 state delegations. Along strict partisan lines, there are currently 30 GOP delegations, 16 Democratic delegations (including Vermont’s independent but left leaning Bernie Sanders), and 4 deadlocked delegations.

Imagine a three-way House choice between Bush, Kerry, and McCain. McCain could prevent Bush from gaining the required 26 states by deadlocking 5 states. Assuming full Democratic support for McCain, defection of less than a dozen key GOP members could deny Bush victory. After a first ballot impasse, it’s anybody’s game, but McCain, as the moderate of the three, would be a strong contender to win a politically brokered deal.

But Bush Republicans might act even earlier. Think back to the original “shedding” of an elector to McCain. Although a tie vote would be known immediately after the election in early November, the electors do not meet to cast votes until December, giving them time to consider their options. The obvious Bush Republican counter-attack would be to encourage multiple Republican electors to shed votes. Multiple electors shed toward either a left-winger (say, Howard Dean) or a right-winger (say, Tom DeLay), could keep a moderate, agreeable third candidate such as McCain out of the contest, making the House vote between Bush, Kerry, and a radical. The House GOP would hold together, and Bush would win handily.

But why would the Democratic electors allow this? They could plan to shed more electors towards McCain. A race to the bottom could then ensue, such that any radical combination of electoral votes, even scenarios where Bush or Kerry get few or no votes, could occur. Depending on what degree electors are aware of the possibilities and to what degree they coordinate their actions, almost any three candidate could end up in the House.

While farfetched, the idea of the perfect electoral tie and electoral shedding opens the frightening possibility of an American election in true disarray — one in which anyone, announced candidate or not, could end up President. Even you.

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Fasten your wonk belts: let’s talk rule layover waivers in the House

December 15, 2011

Last night, it became clear that the omnibus appropriations bill might not make it out of conference, apparently due to political issues related to to the payroll tax cut extension. In order to prepare for this possibility, late in the evening on Wednesday, three new pieces of legislation — including a new omnibus — were introduced in the House.  At 11:40pm, the House adjourned. At 12:37am, the House Rules Committee added the three newly-introduced pieces of legislation to its website calendar of expected activity for the week, but took no official action on them.

With the possibility of a government shutdown looming on Friday night, several observers, cognizant of the chamber rules, remarked on the speed at which the House would be able to take up the new bills if the conference report did indeed fall apart. Here’s CQ ($):

Despite late-night hurried efforts, they missed the Wednesday filing deadline by about a half hour, making it unclear when the House will vote on the package. The chamber’s rules require that a full calendar day intervene between the publication of a bill text and a vote, but the current stopgap continuing resolution that funds most of the federal government (PL 112-55) expires Friday.

I’m not trying to pick on CQ — a lot of people said similar things — but while that paragraph gets the gist of things, it’s not really even close to correct. First off, the continuing resolution funds the government through Friday, so a funding gap can be averted with action taken anytime prior to Friday evening at midnight, me. Second, while there are definitely chamber rules that require bills to be available for a period of time prior to action, it’s (1) not a one-day intervening provision, (2) not a “calendar day” issue, and (3) not a gap between the publication of text and a vote.

Ok. There’s just a ton to talk about here. Let’s do it Q&A style.

Q: Bottom line: how quickly can you can get a brand-new bill you just wrote onto the House floor for consideration?

A: The most straightforward answer is this: assuming you want to structure the consideration of the bill and you don’t have a 2/3 supermajority supporting you, then you need to let at least one special rule lie over for one legislative day. That can technically be accomplished in just a few minutes, but in usual practice it means that if you generate something today, you can’t consider it until tomorrow.

Q: What the hell did you just say?

A: Ok. Let’s start from the beginning…

Q: How do you get something onto the floor of the House?

A: In order to be brought up on the floor, a measure usually has to be “privileged.” Under the normal chamber rules, only certain measures are privileged for floor consideration as certain times. In practice, there are two methods commonly used to achieve this privilege for something that is otherwise not privileged at the moment. The first is to suspend the rules. But that requires a 2/3 majority, and thus is usually only available for non-controversial legislation. The other method is for the House to adopt a special rule that grants privilege to your measure.

Q: But how do you get the special rule onto the floor?

A: Special Rules are House Resolutions reported from the Rules Committee. Under the general chamber Rules, such resolutions are automatically privileged. And so the Rules Committee — which is closely aligned with the leadership in the modern House — has the gate-keeping power to determine what measured will be made privileged for consideration.

Q: So the Rules Committee decides what comes to the floor?

A: Not exactly. Ultimately, the full membership of the chamber is in control of the rules. Change to the rules — no matter how temporary or minimal — must be approved by the chamber. Therefore, resolutions from the Rules Committee proposing special rules are adopted by the House by majority vote. In practice, the majority party virtually always holds together to support the rule. In some Congressses, not a single rule fails on the floor. When a rule is taken down on the floor, it’s a pretty clear sign that there is a major disagreement in the majority party.

Q: So why can’t they just write a special rule, immediately pass it on the floor, and then take up the newly privileged bill?

A: Because the chamber rules prohibit consideration of a special rule on the same legislative day it was reported from the Rules Committee. All special rules must lie over one legislative day. There are three exceptions to this: first, if it’s the last three days of a session; second, the one-day layover can be waived by a 2/3 vote on the floor; and third, it doesn’t apply if the special rule’s only purpose is to waive the three-day availability requirement for committee reports and conference reports.

Q: Wait, there’s a 3-day availability requirement?

A: Yes. Under chamber rules, measures reported by committee (and conference reports reported by conference committees) may not be considered on the floor until the text of the committee/conference report has been available for three calendar days. Similarly, unreported bills and resolutions may not be considered on the floor unless the text has been available for three calendar days.

Q: So how can they possibly consider the new omnibus prior to the Friday night deadline?

A: A special rule can be written that waives the three-day requirement.

Q: So special rules can just waive any rule of the House?

A: More or less. The only exceptions are that a special rule cannot waive the minority’s right  to offer a motion to recommit a bill, and cannot waive the point of order against an unfunded mandate. But remember, a majority of the House has to agree to a special rule.

Q: So are these waivers common?

A: Yes, very much so. Virtually all controversial legislation moves through the House under a special rule. And most of those special rules waive all possible points of order against the bill: timing limitations such as the 3-day availability, content limitations such as the restriction on authorization legislation in appropriations bills, and amendment limitations, most importantly the restriction that amendments be germane. It’s the main reason that the majority doesn’t really have to sweat all of these requirements — they can all be waived by special rule.

Q: Wait, so the special rule also structures the amendment process for the bill?

A: Yup. At least most of the time. This is perhaps the chief substantive function of the rule. A rule might be “open” — allowing any and all germane amendments — but in the modern practice, rules are much more likely to be “closed” (no amendments allowed)  or “structured” (allowing only certain amendments pre-approved by the rule.)

Q: How do you get an amendment into the rule?

A: When the Rules Committee is considering a special rule, Members may submit proposed amendments to the underlying bill, and then come and testify at the Rules Committee hearing on the special rule. The Rules Committee then decides which amendments to the bill to allow into the rule.

Q: So what does a rule look like?

A: As an example, here’s the complete text of H.Res.54, which provided for the consideration of H.359:

Resolved, That at any time after the adoption of this resolution the Speaker may, pursuant to clause 2(b) of rule XVIII, declare the House resolved into the Committee of the Whole House on the state of the Union for consideration of the bill (H.R. 359) to reduce Federal spending and the deficit by terminating taxpayer financing of presidential election campaigns and party conventions. The first reading of the bill shall be dispensed with. All points of order against consideration of the bill are waived. General debate shall be confined to the bill and shall not exceed one hour equally divided among and controlled by the chair and ranking minority member of the Committee on Ways and Means and the chair and ranking minority member of the Committee on House Administration. After general debate the bill shall be considered for amendment under the five-minute rule for a period not to exceed five hours. The bill shall be considered as read. All points of order against provisions in the bill are waived. No amendment to the bill shall be in order except those printed in the portion of the Congressional Record designated for that purpose in clause 8 of rule XVIII and except pro forma amendments for the purpose of debate. Each amendment so printed may be offered only by the Member who caused it to be printed or a designee and shall be considered as read. At the conclusion of consideration of the bill for amendment the Committee shall rise and report the bill to the House with such amendments as may have been adopted. The previous question shall be considered as ordered on the bill and amendments thereto to final passage without intervening motion except one motion to recommit with or without instructions.

Note that the rule (1) provides for H.359 to be brought up on the floor; (2) structures debate; (3) waives all points of order against the bill; (4) makes in order any amendment that was pre-printed in the Congressional Record; (5) provides for five hours of total time for amending; and (6) makes provisions for a final passage vote to occur. A special rule is almost always accompanied by a short report explaining its provisions and listing votes taken in the committee; you can read the report for H.Res.54 here.

Q: So all of this supersedes the chamber rules?

A: Yes, assuming the special rule was validly adopted by the House. Much like a unanimous consent order in the Senate, the special rule governs proceedings as if it was the chamber rules for the duration for which it is in force.

Q: So what rules structure the debate on the special rule?

A: The chamber rules. Privileged resolutions from the Rules Committee are debated under the Hour rule in the House. That means that the Member that calls up the special rule (usually the chair of the Rules committee is the floor manager for a special rule) is given one hour for debate, half of which is customarily yielded to the minority. After that hour of debate, the floor manager moves the previous question, and assuming that it is ordered by the House, the rule is then voted upon.

Q: Back to the new omnibus bill. Walk through the whole thing again.

A: The Rules Committee will draft a rule, and perhaps hold a hearing on it for amendments. They will report the rule, and then on the next legislative day, the rule will be privileged for consideration. The House will consider the rule, which will waive the three-day availability requirement for the new omnibus bill and structure the debate and amendment process for the bill. The House will then vote on the rule, and if it passes the bill will be privileged for consideration and can be brought up immediately.

Q: So if they report the special rule out of committee today, this can happen tomorrow?

A: In all likelihood, yes. But that’s not necessarily the case. Chamber rules require that special rules from the Rules Committee lie over for one legislative day, which is different than a calendar day. A new legislative day begins when the House meets after an adjournment, and ends when the House adjourns. Usually, this lines up with the calendar day — the House adjourns sometime in the evening, and then meets again the next morning.

But it doesn’t have to be that way. The House could choose to adjourn in the middle of the afternoon for just a matter of minutes, and then upon return from the adjournment a new legislative day would have begun. Likewise, the House could recess overnight, and when the recess ended the next calendar day, a new legislative day would not have been created.

Q: So why doesn’t the majority just always adjourn for two minutes as a strategy?

A: There’s a pretty strong norm against it. The one-day layover rule exists so that you can’t surprise people with stuff on the floor. And that’s a sensible rule for a professionalized legislature. To allow the majority to instantly bring up anything at any time is potentially problematic. So using strategic adjournments is generally frowned-upon. It would definitely fall into the category of hardball.

Q: So what’s the significance of midnight in regard to the special rule?

A: Technically, nothing. Take last night, for example. The House adjourned at 11:40pm. At that point, even if the Rules Committee completed work on a special rule prior to midnight, it would not qualify to be reported to the floor on the legislative day that had been created on Wednesday morning. Conversely, if the House had not adjourned, then the Rules Committee could have taken as long as it wanted to report out a special rule, even if it happened after midnight. This happens upon occasion — the House is kept in session very late into the night in order to allow the Rules Committee to report a special rule out. After that, the House adjourns, and even if the adjournment was at 5am and the House meets again at 9am, the special rule will have laid over the requisite one legislative day.

Q: Are there other ways of bypassing the one-day layover rule for special rules?

A: Yes. The most common is to write a special rule changing that rule — waiving the special rule layover rule!

Q: Why would you do that? Wouldn’t that special rule need to lie for one day?

A: Yes, it would. But consider the following circumstance: you know you want to do something tomorrow, but you don’t have the bill ready to be introduced. So what you do is write a special rule today that, in effect, says “special rules do not have to lie over one day, but can be considered immediately.” Then, the next day you can pass that rule, and then you can immediately bring the real rule to the floor, pass that, and then you can bring the bill to the floor.

Q: Does that really happen?

A:Yes, with some regularity. It happened back on July 29, when H.Res.382 was passed. Here’s the full text:

Resolved, That the requirement of clause 6(a) of rule XIII for a two-thirds vote to consider a report from the Committee on Rules on the same day it is presented to the House is waived with respect to any resolution reported through the legislative day of August 2, 2011.

Note that it simply waivers the 2/3 requirement, since (as mentioned above) any privileged resolution from the Rules Committee can be adopted same-day if it gets 2/3 vote. The rule was passed during the debt ceiling negotiations, so that if things came down to the wire on August 2, a rule and a bill could be moved quickly.

Q: You mentioned that the layover rule and the availability rules don’t apply at the end of the session.

A: That’s right. The current chamber rules waive the one-day layover for special rules during the last three days of a session and waive the availability rule for bills and conference reports during the last six days of session. Since the House often does not pass an end-of-session adjournment resolution until right before it happens, those last days are often unknowns. To combat this, the House will occasionally pass a special rule toward the end of a session waiving the one-day layover or the three-day availability for the remainder of the session.

Q: All of this sounds nothing like the Senate.

A: That’s right, because it’s not anything like the Senate. The Senate can really only adopt the equivalent of a special rule by unanimous consent, and that is one of the key functional differences between the chambers: the majority in the House can more of less do what it wants, because it can change the rules at will. The minority protections in the Senate prevent changes to the rules by a simple majority, and therefore things like structuring debate or limiting amendment can only be accomplished by unanimous consent or complicated strategic maneuvering.


On Supercommittees and Blooming

December 14, 2011

Matt Yglesias is backing a proposal by Senator Lieberman that would allow any legislation that meets the supercommittee charged standard (i.e. achieves $1.5 trillion in additional deficit reduction over 10 years, has bipartisan support) to receive the expedited consideration that was arranged for the supercommittee legislation (i.e. no filibusters, no amendments). The idea is to allow a thousand supercommittees to bloom. Here’s Lieberman (via Brian Buetler):

The Budget Control Act said that if the Super Committee reached an agreement it would come to congress and for good reasons it would be considered on an expedited basis, it would not be subject to a filibuster, it wouldn’t even be subject to amendments — it would be an up or down vote,” Lieberman told reporters at a breakfast round table hosted by the Christian Science Monitor. “The proposal I’m introducing today would extend that process for 90 days into next year…but I’ve done it a little differently since the Super Committee is gone. I’ve said that if any six members of one caucus, six members of the other caucus in the Senate; [or] 15 in the [both caucuses] in the House…submit legislation that is qualified under the bill, which means that it would achieve at least $1.5 trillion of additional debt reduction over the next 10 years, and of course it’s bipartisan, then it would have the benefit of those expedited procedures.

I suppose the goal of Lieberman’s proposal is to have some “gang of 12” produce a moderate bill that would capture significant votes from both parties in an up/down vote but that might lose votes from both wings. That, I suppose, could potentially be effective if those wings would have blocked a cloture vote on the same bill. I don’t think it’s necessarily a bad idea on its face. The problem, as I see is, is that the bipartisan support requirement of 6 Senators from each caucus results in a potential asymmetry for the ramming through of partisan bills.

If you make the (not unreasonable) assumptions that all Democrats are more liberal than any Republican (and vice-versa), then the upshot of Lieberman’s proposal is that any Democratic ideas for deficit reduction will require 59 votes in the Senate (53 Democrats plus 6 Republicans) while GOP ideas for deficit reduction require only 53 votes (47 Republicans plus 6 Democrats). In effect, you are asking both parties, “Can you pick off 6 votes from the other side?” It’s just that when the Democrats pick off six votes, they are almost at the cloture threshold. When the GOP does it, they barely have a majority. That strikes me as a large concession on the part of the liberals.

Now, each side also has a backstop — the House for the GOP, the President for the Democrats —  and I don’t think the proposal is going anywhere, so I don’t want to make too much of it. But having any six Senators from each side support a bill is very different than having the supercommittee — which was chosen by the leadership — support a bill. And while I think it would be possible under the Lieberman plan for a moderate bipartisan bill to get through the Senate, I think it is much more likely that the result would be a (GOP + conservative Dems) bill that got the votes to pass.

And so it should not be all that surprising that the legislation (S. 1985) currently has four co-sponsors —  Senators Corker, Enzi, Kirk, and Murkowski — and all of them are Republicans.

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Hardball and HARDBALL

December 13, 2011

In the wake of the Senate’s failure to invoke cloture on the nominations of Caitlin Halligan to the D.C. Court of Appeals and Richard Cordray to head the new Consumer Protection Board, there has been a lot of criticism about the filibuster. A number of writers are very concerned about the use of the filibuster to deny confirmation to an agency head as a protest against the agency itself. Steven Benen called it “extortion politics.” Jonathan Cohn likens it to antebellum nullification, echoing Tom Mann’s assessment from this past summer. I’m not sure I agree with the use of the term “nullification,” but I see where they are coming from. It’s definitely an institutional development.

Personally, I like the more neutral and wider formulation that Jon Bernstein uses (via Mark Tushnet): hardball (see here and here and here). The idea of hardball is pretty straightforward: an institution like the Senate is governed by rules and standing orders and precedents, but it is also governed by norms. When political actors abandon the norms and insist (as they have every right) on the literal enforcement of the rules, short-term strategic advantage (for an individual or party) can often be gained. A popular example of such a norm was the past practice of not filibustering judicial nominations purely on partisan or ideological grounds. But it can be applied across any set of norms, and is by no means limited to the Senate, or even politics for that matter.

There’s nothing extra-legal or inherently wrong with hardball. Quite to the contrary, it’s every Senators right to take full advantage of the rules and demand that they be followed. The problem, however, is that the short-term advantages an individual or faction can derive from hardball often create undesirable situations when universalized. As more and more individuals (or both parties) abandon a given norm in favor of the strict rules, the comparative advantage recedes and the resulting equilibrium may create an institutional context that nobody prefers to the old system of norms. Multiply this across a whole range of different norms, and you have a potentially serious problem.

A good analogy is college basketball. By the early 80’s, two norms had completely broken down in favor of the strict rules: late-game fouling to stop the clock to put the other team on the line for a 1-and-1, and stalling with the ball when holding a lead late in the game. Both of these strategies are wise, but when universalized and maximized they began to destroy college basketball, especially when set together in concert: teams with leads began stalling earlier and earlier (sometimes with 5 or more minutes to go in the second half), and in response teams that were losing began fouling earlier and earlier.

The final minutes of college basketball games were no longer resembling basketball games at all. Even worse, inferior teams began to realize that they could build their entire strategy around these concepts. Hold the ball for minutes at a time to reduce the number of possessions (and therefore increase the variance/luck of the outcome), and intentionally foul to produce 1-and-1’s. The solution, luckily, was relatively simple: change the rules. A 45-second shot clock was introduced for the ’85-86 season, and later the “double bonus” was added so that continuous fouling would result in 2 shots, not  1-and-1. It hasn’t completely solved things (and never will) — teams still have incentive to foul and incentive to use up the shot clock — but it has severely reduced the problem.

As you might have guessed, though, it’s not exactly easy to change the rules in the Senate.

All of this is context swirling around the main point I want to make here, which is that while hardball may be on the rise in the Senate, we’re nowhere near anyone playing absolute hardball with the Senate rules. The system is still largely held together by norms. Think about the defeat of the motions to invoke cloture on Halligan and Cordray. Both of those cloture votes were scheduled by unanimous consent. In fact, just check out the order passed by unanimous consent last Wednesday night:

I ask unanimous consent that when the Senate completes its business today, it adjourn until 9:30 a.m., on Thursday, December 8, 2011; that following the prayer and pledge, the Journal of proceedings be approved to date, the morning hour be deemed expired, and the time for the two leaders be reserved for their use later in the day; that following any leader remarks, the Senate proceed to executive session to consider Calendar No. 413, the nomination of Richard Cordray to be Director of the Consumer Financial Protection Bureau, with the time until 10:30 a.m. equally divided and controlled between the two leaders or their designees; and that the cloture vote on the Cordray nomination occur at 10:30 a.m.; finally, that if cloture is not invoked, the Senate resume legislative session and resume consideration of the motion to proceed to S. 1944.

There’s a UC in there for (1) adjournment, (2) approval of the journal, (3) the expiration of morning hour, (4) proceeding to executive session, (5) debate structure and limits on the nomination prior to the cloture vote, (6) the timing of the cloture vote, and (7) the return to legislative session if the cloture vote fails. That’s a window into just how much is done in the Senate by unanimous consent. And remember, that’s just one UC agreement. There are dozens of things that are routinely dispensed with by UC: the first and second reading of bills, the reading of amendments, the live quorum calls prior to cloture votes, the ending of strategic quorum calls, and so on. And this isn’t unusual: the Senate floor is more or less run by unanimous consent. Every day. Even when it’s being locked up by a filibuster.

And therefore, if any individual Senator wanted to really gum up the works on any given day, it’s certainly not hard. You can just go down to the floor and sit at your desk and object to everything.  Floor time is already scarce, and having to read the journal and hold morning hour and read all bills and all amendments and hold a live quorum call prior to all cloture votes would only make it more so. There are incredible stories of Howard Metzenbaum doing just this a generation ago: sitting at his desk in the Senate and objecting to every single UC until whatever concern he had was mollified. Now that’s hardball.  Now again, the point here is not that people aren’t playing hardball with nominations, they are. The point is that there’s a lot of hardball left to be played before the norms completely break down. Which, of course, raises a key question: why don’t Senators play absolute hardball?

There are a few reasons. First, individual Senators need help in accomplishing their own goals. The norms aren’t simply held in place by tradition; there are strong ambition incentives that bind people to them. The Senate is a repeated game, and while absolute hardball may get you a short-term victory, it’s likely to be a long-term disaster. While Senate leaders and the party caucuses aren’t all-powerful, they do control enough goodies and have enough discretion that they can harness the ambitions of individual Senators to keep them in line. A Senator with no long term goals and an interest in jamming up the floor would be dangerous indeed. But luckily for the Senate, most Senators have policy and/or political goals of their own that they would like the advance. And so looming over any individual who is considering all-out hardball is the threat of losing all support for their own current and future goals.  And thus the lack of rouge lone wolf ultra-objectors.

Second, individuals and minority parties need to worry about the majority changing the rules. If you locked down the Senate floor by announcing that you were going to object to every single unanimous consent request from here on forward, my guess is that the rules would change rather quickly in some way (perhaps as simply as by putting in a new rule that allowed “unanimous consent” unless two objections were heard!). Or they’d just expel you. But this is a key point: Senators and parties playing hardball in the modern age aren’t upset by the current system; they see the current system as benefiting them. They aren’t out to change the rules, they’re simply out to exploit the rules to maximum benefit. And therefore they need to walk a tightrope line. Yes, the minority could demand all post-cloture rights and use up the 30 hours of debate and never agree to schedule a cloture vote by UC and just demand “regular order” at all times. But it would ultimately backfire.

On the other hand, thinking about the future, the Senator or group of Senators who might want to  play absolute hardball are the person or persons who want to radically amend the current system of rules. That person/persons will not live in fear of the rules being changed, but instead will welcome it. Some future group of Senators, perhaps only a handful, will take to the floor, Metzenbaum-style, and simply object to everything until they are mollified. But unlike Metzenbaum, they will not be seeking leverage over public policy; they will be seeking to change the rules themselves. And if they can prove that they don’t care about being punished by the leadership or marginalized by the rest of the chamber, they will succeed. Because the Senate will only have three choices: sit in complete gridlock; change the rules to mollify the objectors; or change the rules to get around the objectors. The first is not tenable, and the latter two achieve the same end for the hardballers.

There’s a strange sort of symmetry to all of this: the setting aside of norms in favor of hardball is both the cause of much consternation about the Senate, but also a potential solution to it. Those upset by the exploitation of the rules may come to see the exploitation of the rules as the way out of the hardball spiral. I have no crystal ball into the future of the Senate, nor do I think we are particularly close to the snapping point over the norms/rules. But the steam seems to be building a bit, and the release valves that currently exist — most importantly landslide elections — may not be enough to thwart a growing sense among some that the rules need to change, and that absolute hardball is the way to change them.


In this world but not of this world

December 12, 2011

Mitt Romney, from Saturday night’s GOP primary debate:

We don’t need– we don’t need folks who are lifetime– lifetime Washington people to– to– to get this country out of the mess it’s in. We need people from outside Washington.

You hear this a lot, the idea that coming in as an outsider to shake up the Washington establishment is a good way to advance policy goals or solve political problems. Whatever the merits of it — and it’s pretty clear that there are advantages to be an insider and advantages to being an outsider, but not obvious that the latter outweigh the former — I think it tends to obscure a pretty basic institutional reality in DC: the President, regardless of whether he’s spent his life in the Senate or his life farming in rural Montana, is functionally an outsider during the time he is President.

Now, of course the President can be a DC insider in the sense that he/she could have spent a long career in the Senate, have political and bureaucratic connections all over town, know all the lobbyist and journalists, and be a master of the Washington political game. Sure. What I mean is that the presidency itself creates an institutional situation in which President has fully unique goals and strategies, and that those goals and strategies are not only different than what observers typically would describe as the goals and strategies of “lifetime Washington people,”  but in most respects are actually in conflict with them. There’s a lot that could be said about this, but two important aspects are (1) the President has a completely different time horizon than most of the rest of Washington; and (2) the President’s needs to win in ways that Members of Congress do not.

The time horizon is obvious, but sometimes under-appreciated. Presidents have at most eight years to accomplish any objectives, while Members of Congress, senior executive branch officials, and private sector DC political actors may very well expect to be around for decades. Consequently, the president almost always seems more in a hurry than Congress to Get Big Things Done. And from this, of course, flows one of the basic political differences between Members and Presidents: Members are often more naturally risk-averse. The micro-result is that presidents tend to be frustrated by the long and slow congressional policy-making process, and the macro-result is that DC often appears to be in the situation in which a President is prodding a recalcitrant Congress to take up his policy proposals.

There’s more to it than that, though. In the long run, the basic bargaining outlook for the President and a Member of Congress differ. The President’s short and known time horizon suggests that he should accumulate as much political capital as he can, but also that he should leave office with the tank on empty: if he can put to work every last chit and favor and piece of patronage he has in order to call in every last vote or favor he needs, that’s a solid utility maximizing strategy. Similarly, he doesn’t have to worry too much about burning bridges, especially as time goes on. In other words, the short time horizon not only incentivizes the President to work quickly, but it also suggests a slash-and-burn strategy, at least in comparison with Members or bureaucrats, whose long-term incentives suggest maintaining capital, using it shrewdly, and avoiding the creation of permanent enemies.

The second aspect I brought up — that the President needs to win in ways Members do not — is something that often drives people batty when they watch C-SPAN. It’s not at all uncommon to see a contentious vote taking place on the floor of the House or Senate, and for the Members to be having friendly, casual conversations with one another, even if they voting on opposite sides of the issue. Beyond the basic civility of a legislature and the need for maintaining long-term friendships, there’s a good institutional reason for this: Members of Congress do not have to win in order to keep their jobs; they simply have to vote the right way. As David Mayhew put it in The Electoral Connection, if Members of Congress had to win on the floor in order to get re-elected, they would tear each other to shreds. But they don’t: in the typical situation, the job of a Member is to well-represent his constituents, and since no individual Member can control the outcome in Congress, voters (quite sensibly) mostly take into account how a Member votes, not if the Member’s side of the vote carried the day.

This is mostly not true for the President. While position-taking is of some use to a President (especially in situations of divided government), results are far more important. For a President to go to the voters and say that he stood for the right things  is a weak argument indeed. And the consequence of this is often revealed, once again, in the political temperament of the President. No one in Congress likes to lose, but no President can really afford to lose. And so while all Presidents strive to be good Neustadtian bargainers, most also cannot resist the temptation to lash out on occasion, and to take risky actions in the hopes of delivering victories.

When you combine the need to win with the short time horizon, the sum total is an institutional actor who is quite seriously incongruous with the other political actors in and around the government. As Neustadt wrote, no one else sees what the President sees. And so  it’s not surprising that Presidents tend to create bunker-like mentalities within the EOP and especially the White House staff. Nor should we be surprised that that the White House often has rocky relations with its own congressional party. Or that the President finds Washington or the pace of congressional action too slow or the tactics of the existing DC political establishment too risk-averse.

The President may be the center of political power in Washington, but as an institutional actor in the federal government, he’s mostly a lonely outsider.

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Put Your Hands Together

December 12, 2011

From the transcript of Saturday night’s GOP debate:

DIANE SAWYER: That is true. And it’s 24 days now and counting until the voting begins in the caucuses. And– and it’s at the time for closing arguments, so let us introduce the presidential candidates from the Republican party for the United States of America here at the debate tonight.

Former Senator Rick Santorum of Pennsylvania, Governor Rick Perry of Texas, former Governor Mitt Romney of Massachusetts (AUDIENCE WHOOP), former Speaker of the House Newt Gingrich of Georgia (AUDIENCE WHOOP), Texas Congressman Ron Paul, (APPLAUSE) and Congresswoman from Minnesota, Michele Bachmann. (APPLAUSE) Thank you all.

I think it’s pretty obvious that the “whoop” factor has been underestimated as an explanatory variable for primary success thus far this cycle.

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Reading Week

December 10, 2011

David Post’s guide for students on exam-taking mistakes.

Newt Gingrich is a populist technocrat, says Conor Friedersdorf. And then he demolishes him here. Lots of people are saying Gingrich can or can’t win the nomination. Call me a beltway insider, but I say “no chance.” And I basically agree with Ezra’s reasoning here.

President Obama gave a speech this week. He paralleled his presidency and outlook to Teddy Roosevelt. I thought Jonathan Chait’s roundup and critique was interesting.

A libertarian reminder that entrenched corporate power is partially a product of the left.

Matt Yglesias on why you should give money, not canned goods, to food charities.

Freeman Dyson’s review of Daniel Kahneman’s new book “Thinking, Fast and Slow” is excellent.

Greg Koger wonders why the President doesn’t use the pardon power to greater ends. Suzy Khimm provides an answer.

John sides on demographics and being careful with the independent vote.

Nate Silver on why Cain fell.

Ryan Avent looking through the Economist in 1931.

There’s a bunch of talk about brokered conventions. Rhodes Cook says possible. Josh Putnam thinks not. Nate Sliver sees it as possible. Jon Bernstein is dismissive at first, and then thoroughly convincing later.

Senate nominations are losing cloture votes. RIP, Gang of 14 says Bernstein, and advises recess appointments. Jonathan Cohn calls it nullification.

The baby boomers control Christmas.

I liked this article on how doctors die.

Just about the best example you’ll find of a professional class extracting unnecessary licensing from the government in order to stifle competition.

It takes a village to make a cheeseburger.

Paul Krugman trys to minimize Hayek’s economic contributions. A stiff response here.

A lot of people forwarded me that “Gingrich broke the law by saying hed appoint Bolton” link. Evidently, it’s not true.

I’m a sucker for posts about Animal Farm. See also here.

Tyler Cowen piece on the effects of the Moneyball revolution.

Ta-Nehisi Coates interviews Eric Foner about the civil war. And wraps up the “Is the Civil War Tragic?” debate here.

The science of temper tantrums.

What do we do when the legislature wants more presidential power than the president does? Good question.

Thinking about how #OWS will affect the Democratic Convention next year, and comparing it to Chicago ’68. I also liked this #OWS commentary by Will Wilkinson.

A nice visual illustration of the correlation/causation distinction.

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Making Payroll

December 9, 2011

Three quick thoughts on the payroll tax:

1. Here’s President Obama, Wednesday:

I think it’s fair to say that if the payroll tax cut is attached to a whole bunch of extraneous issues not related to making sure that the American people’s taxes don’t go up on January 1st, then it’s not something that I’m going to accept.  And I don’t expect to have to veto it because I expect they’re going to have enough sense over on Capitol Hill to do the people’s business, and not try to load it up with a bunch of politics.

As I’ve written before,  I don’t think a veto threat is particularly credible for the President under the current political dynamics of Congress. With the Senate controlled by the Democrats and everyone is now attuned to the idea that 41 Senators can stop legislation, it’s hard to imagine the President vetoing legislation that got a supermajority in a Democrat-controlled chamber. And if he can’t veto it, then the veto threats are empty, and veto bargaining should be theoretically just cheap talk.

2. I didn’t think I’d ever live see the Democrats so forcefully arguing for a reduction in the payroll tax. Twenty years ago, I’m pretty sure the modal liberal response to such an idea would have been, “well that’s a backdoor into gutting social security.” And even though the payroll tax holiday has not affected the social security trust fund, I’m not sure that should alleviate such liberal concerns: some portion of the political support for social security is based on the (mostly correct) public perception that it’s a social insurance program for workers paid for by those same workers, not a redistribution program transferring wealth from the rich to the poor.

This has been both good and bad for social security: it has allowed it to escape the wrath of public objections to “welfare” programs, but it has also produced a hesitancy among supporters for doing things like raising the cap on the payroll tax, which has left it as pretty-much the most regressive federal tax. But make no mistake: a payroll tax holiday is essentially no different than making social security a redistribution program. On the one hand, that’s good if you think (as I do) that the U.S. could a little more progressivity in its tax structure. But it’s not great if you like the program and think support might slip among the middle class when viewed as a wealth transfer program.

3. I honestly don’t see how the payroll tax could return to it’s former 7.65% (6.2% +1.45%) anytime soon. Since we all now know that for 47% of Americans the payroll taxes of SS/Medicare are more or less the sum total of their federal taxes, the 2% cut from December 2010 was the equivalent of a 26% decrease in taxes. Even worse, to restore it would mean a 35% increase in current tax burden. Even though the payroll tax cut was a temporary stimulus measure, I’m pretty sure the Republicans aren’t interested in raising taxes on anyone anytime soon. And I have a hard time believing the Democrats will ever sign on to what amounts to a 35% increase in total federal tax burden on the poorest half of Americans. But hey, I’ve underestimated them before.

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Filibusters and Cloture

December 8, 2011

Following the failure of the Senate to invoke cloture on the Halligan nomination yesterday and the Cordray nomination today, Steve Benen was a bit annoyed by a Politico piece that equivocates over which party is responsible for the rise in Senate obstruction over the last decades. Here’s Benen:

The Senate keeps an updated table, charting cloture votes by Congress over the last nine decades, using three metrics: (1) cloture motions filed (when the majority begins to end a filibuster); (2) votes on cloture (when the majority tries to end a filibuster); and (3) the number of times cloture was invoked (when the majority succeeds in ending a filibuster). By all three measures, obstructionism soared as Republican abused the rules like no party in American history.

Now, I’m not defending Politico here or saying that obstruction hasn’t increased over time — I think it has, and I think there’s some good evidence for it, especially in the case of nominations (which are the easiest to study, as it turns out, because there are no amendments and thus filibusters tend to be direct opposition, not strategic bargaining chips to win concessions). And I’m not going to wade into the debate over who or what party is responsible.

But proving that obstructionism is on the rise — or figuring out when it began or how much it has increased — is not as simple as Benen describes. Using cloture actions as a proxy for filibusters or obstructionism is a less than desirable metric, and also is open to easy political manipulation. Regardless of how many filibusters actually exist, the majority leader has the discretion (and often the strategic incentives) to produce very few or a whole lot of cloture votes.

Here’s a Venn diagram that will be helpful as I explain why. The entire box is the policy/nominations agenda, the largest circles are cloture motions filed and filibusters, respectively. The medium-sized nested circle is cloture votes taken, and the smaller nested circle is cloture motions invoked.

What we want to know is something like this: in any given Congress, what percentage of the large box (i.e. the total policy/nomination agenda) does the filibuster circle take up? And has that percentage been growing over time? What we know, for sure, is the absolute value of (1) cloture motions filed; (2) cloture votes taken; and (3) how often cloture is/isn’t invoked on those votes.

This leaves a bunch of problems:

1) Cloture motions are both under-inclusive and over-inclusive of filibusters. This is represented by areas A and B on the venn diagram. Area A includes times when a filibuster is occurring but the majority doesn’t file for cloture. This happens all the time: the majority informs the minority that they are thinking about bringing something to the floor, the minority says they will not give unanimous consent, and the majority just discards the idea and never brings it to the floor. Similarly, the majority might bring something to the floor, fail to get UC to move on it, and then just give up.  Area A also includes the situation in which a UC is reached that includes a 60-vote threshold for final passage. That’s obviously a filibuster, but there’s no cloture motion filed.

Area B is the opposite situation: a cloture motion filed on something that is not a filibuster. This occurs only occasionally, but it does happen: the majority leader thinks some floor action may be contentious, so he immediately files for cloture upon calling up a bill/nomination. It turns out there’s no filibuster, a UC agreement is reached for debate, and a final passage majority vote occurs with no cloture vote ever taken. But the converse happens all the time: no cloture motion is filed, a UC is worked out, and the bill gets a final passage vote. Whether or not there was a filibuster in either situation, or both, is unknown. But only one has a cloture motion associated with it. Similarly, the majority leader might occasionally pre-emptively file for cloture on a bill and then never take it up, because a different bill became the vehicle for the legislative action.

Now, none of this would be a huge problems if areas A and B could be precisely known or measured. But they can’t be. Even more to the point, the majority leader has almost complete control over the size of area A and area B. If he runs into a situation in which there’s a bill/nomination he would like to take up, but he knows that it will be filibustered and cannot pass, he then has the option of choosing whether to not take it up (area A), or going through the process of bringing it up, filing, and holding a cloture vote. That decision can be largely political, based on how the majority party thinks a failed cloture vote will play publicly. So depending on the political situation and temperament of the majority leader, an identical number of filibusters can be associated with a large number of cloture motions, or a small number. That is, to say, it’s not impossible that the observed increase in cloture actions over the last few decades is entirely the result of the majority leader taking a formerly private fight public. And while it’s unlikely that explains the entire rise in cloture actions, it’s almost certainly part of the equation.

One final point here: Area C, where there is a filibuster and cloture is filed, also contains a problem: more than one cloture motion can be filed on the same bill, and often is, in order to stack up potential cloture votes over a period of days. That means that any individual filibuster can have multiple cloture motions associated with it, again at the majority leader’s discretion.

2) The absolute number of cloture votes has the same problems, and another one. It seems pretty solid to think that a failed cloture vote (i.e. cloture not invoked) is evidence of a filibuster, as in Area D of the Venn diagram. But that’s not exactly true: if a cloture vote does not get even a bare majority of support (i.e. 50 or 51 votes), that’s good (but not airtight) evidence that it wasn’t a filibuster standing in the way of the bill/nomination, it was the preferences of the Senate, and is illustrated in teh diagram as Area E. This is not the case on many cloture votes, but it happens more often than you might imagine.

Still, there’s a bigger problem with trying to correlate total cloture votes (or failed cloture votes) with filibusters: any filibuster can be subject to multiple cloture votes. It seems silly to say that if there were 12 cloture votes on a single bill and all of them failed, that there were somehow 12 filibusters, rather that one. And once again, this puts the majority leader in the driver’s seat; if he’s stubborn and/or just wants to emphasize minority obstruction, he can pump up the number of failed cloture votes simply by holding cloture votes over and over again on the same measure. Which means, once again, that the political situation and the bargaining disposition of the majority leader is going to affect the number of cloture votes.

3) The absolute number of times cloture is invoked isn’t as good a measure as it sounds. For all the reasons already discussed, plus a few more. Area F is the standard case: the minority filibustered and the filibuster was broken by the majority getting to 60 votes. But the majority can get 60+ votes in situations when there really isn’t a filibuster (area G), or a situation in which a filibuster could have easily been defused without a cloture motion. For example, cloture can be used as a shortcut in many situations in which a UC was plausibly available. Say there are only a handful of objectors to a bill/nomination and both the majority and minority leadership are ready to move the bill. One option is to try to mollify the objectors, get a UC agreement to structure the debate, and go straight to final passage, which may get as many as 95+ votes. But the other options is to just file a cloture motion, do something else until it ripens, and then pick back up on it for the cloture vote.

This is especially attractive if the objectors have non-germane amendments they are trying to get into the mix. But the main point is this: there are occasionally cloture votes that pass by very large numbers, which often indicates that a UC might have been available and that the cloture vote was a strategic choice, not a necessity in response to filibuster. It also highlights the difference between a handful of objectors and a full-on minority party objection that has the support of he minority leadership. Both are technically filibusters and both are potential institutional problems, but they are very different things as far as the strategic options available to the majority are concerned.

4) The absolute value of the various cloture actions don’t control for the size of the policy agenda. This is perhaps the most important point. Even if we knew there was a perfect 1:1 correlation of cloture motions to filibusters, we still wouldn’t be able to say anything concrete about the use of the filibuster across Congersses, because saying “there were only 10 filibusters then but there are 15 now” doesn’t mean anything unless you know for sure there is a common denominator. If there were 30 things on the agenda “then” and 100 “now,” well, the filibuster rate — the percentage of the policy agenda subject to a supermajority threshold in the Senate — has actually gone down.

Now, the point in saying all of this isn’t to say that minority obstruction or use of the filibuster has not gone up over the past few Congresses. The point is that it’s a lot harder to judge than you might think, and it’s not at all clear that using metrics related to cloture are a good way to go about it. As described above, the majority leader has a lot of latitude in his strategic choices, and those choices can make cloture filings and votes go up or down, regardless of the number of underlying filibusters. And, also as mentioned, the absolute number of filibusters, even if it could be determined from the number of cloture votes, is not particularly interesting absent a sense of the size of the legislative agenda.

What I’ve said here isn’t a particularly new idea in political science. There are a number of scholars who have attempted to find alternative ways of measuring filibusters for quite some time. The best place to start if you are interested being Gregory Koger’s Filibustering, which uses news coverage to generate an independent measure of the number of filibusters and provides all the bibliographic references needed to locate others who have made similar attempts in the past. It’s not easy to count up filibusters, there’s definitely no perfect method. But methods like Koger’s are vastly superior to relying on cloture actions or other procedural count-ups in the Senate.

Update: Jon Bernstein has some related thoughts regarding the big picture of what’s going on in the Senate, and I definitely recommend reading it. I don’t think he disagrees with what I wrote (if I’m reading him correctly), and I more or less agree with him when he says:

I think that there’s a bottom line here that’s easy to overlook: the institutionalization of the 60 vote Senate. It’s not really a question, in other words, of whether any particular piece of legislation or nomination was attacked by filibuster; it’s that increasingly beginning in 1993, and overwhelmingly since 2009, minority parties have insisted that the majority produces 60 votes for everything.

It’s definitely my sense that minority obstruction has increased in the Senate; It wasn’t my intention to give off the impression that I think otherwise: it seems true on its face, and pretty much all research seems to confirm it. I’m just wary of using cloture actions as the measure; they purport to provide far too sure of an answer given how problematic the data can be.


Through the Looking Glass

December 7, 2011

As far as cold-war era nuclear showdown movies go, 1984’s made-for-TV Countdown to Looking Glass is mostly forgettable but, like most movies of its ilk, occasionally bone-chilling. Constructed in the “crisis seen through the lens of newscast” genre, it it similar to Special Bulletin and Without Warning. As an obvious product of the Cold War, it now feels quite a bit dated. On the other hand, the causes of the portrayed crisis resonate mildly with contemporary global politics: terrorism, banking collapse brought on by sovereign defaults, and middle east nations undergoing regime change.

One bonus of Countdown is that it features 3rd-term House Member Newt Gingrich (D-GA), playing himself in two TV interviews. Below is the first interview, on day three of the crisis and after American forces land in Saudi Arabia at the request of the King, deployed in order to quell domestic uprisings spurred on by the Soviet-led coup in Oman, and potentially defend the peninsula from the growing crisis over the closure of the strait of Hormuz :


While keeping in mind that this is a fictional interview from a script in a movie, I found two things interesting:

1) Gingrich’s claim that “this is the biggest crisis facing the Western alliance since either the Bay of Pigs invasion or the blockade of Berlin”  struck me as strange, in part because I don’t think of the Bay of Pigs as much of a “crisis” or as something that involved the Western Alliance in anything but the most general sense. But mostly because the Cuban missile crisis, which Gingrich didn’t mention, seems like the obvious natural analogy to the situation. Since this seems like an almost impossible oversight, it makes me wonder why either Gingrich or the movie producers chose not to mention it.

2) Gingrich’s use of perhaps-dubious broad historical context is on beautiful display. He notes that the Soviet desire for the Arabian oil fields follows several hundred years of the Russian czars trying to overtake that part of the world, and that the British had successfully fended them off in the past, but now it is up to us. But I don’t think the connection quite works: it seems like a reasonable position that we should defend the Saudis because the oil field are of strategic value, but what does the czarist/British tilt in the 19th century have to do with anything?

Here’s the second interview, on day eight of the crisis, after the USS Nimitiz has arrived near the strait and a Dutch oil tanker has been destroyed trying to run the blockade:


Again, I’d first remind you that this is a fictional interview. But two points:

1) I don’t get Gingrich’s response to the question. I mean, I understand the principle: there are things worth fighting for, even if it means horrible war. But if no “thing” is worth nuclear war, how can slavery be less palatable than a nuclear war that may end up destroying the world. Is the idea here that freedom is not “a thing,” and thus certain ideals are worth risking nuclear war? That doesn’t seem like much of a guiding principle. But, you know, whatever.

2) And yes: Churchill! Gingrich is nothing if not a would-be statesman in waiting, in his own mind. The first sentence is also classic Gingrich — Tragically (Tragically!), you’ve asked the right question.

Finally, one more general point about the movie. I found it rather unnerving that not a single mention seems to be made of Congress’s role in the crisis. The entire film is centered around the President’s military and diplomatic responses. The news reports cover public protests, mass evacuations, presidential speeches, DoD communications, and State Department maneuvers. But not a word about the legislature. And here we are interviewing a Member of Congress, and not one question about congressional authority over the matter. And not a word from Gingrich either.

In the last scene of the film, the news anchor grimly reports that the President’s Emergency Airborne Command Post — code-named Looking Glass — has taken off from Andrews AFB and will join a second plane in the sky, which is carrying members…of the strategic air command! No word is given on where Congressman Gingrich or any other Members of Congress have been or will be taken. Bone-chilling indeed.

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Talking about the filibuster

December 6, 2011

Over at his blog, John Bernstein makes a good point about how reporters need to be careful when using the term “filibuster” to describe a discrete event in the Senate:

What you don’t want is, as the WaPo’s Felicia Sonmez put it in an otherwise very nice story, that “Republicans on Tuesday filibustered the nomination.” Why not? Because they’ve been filibustering it all along, not just on Tuesday — and because they would have been filibustering even if they had failed to sustain it in the cloture vote. That is, a filibuster that fails to stop something is still a filibuster (after all, we all call what Strom Thurman did in 1957 a filibuster, even though eventually he lost and the bill passed). Politico’s Scott Wong also had it wrong with similar wording. The Hill’s Josiah Ryan had the somewhat better “The Senate voted to sustain a filibuster,” but unfortunately the headline was the terrible “Senate GOP votes to defeat…”, which takes the filibuster out entirely and suggests that a majority voted against Halligan. The AP had “blocked…failed to break a filibuster,” which is probably the best of the lot.

I think this is quite right. What I’m more torn about is Bernstein’s preferred language:

But I’d highly recommend “defeated by filibuster.” Or, if you want to be even more accurate and convey more information: “defeated by minority filibuster.” It’s concise, and includes the two crucial facts: that the nomination was in fact defeated, and that the means of defeat was a filibuster.

The problem I see with “defeated by filibuster” is twofold. First, it doesn’t tell you how the filibuster won; it could be the case that a cloture vote was defeated (which is what actually happened today). But it could also be a number of other things. The Majority Leader could have pulled the bill/nomination from the floor upon the realization that the votes for cloture weren’t there. Or the leadership could have sought unanimous consent to proceed to the bill/nomination, and abandoned it when there was objection. Or the leadership could have never attempted to bring the bill/nomination to the floor in the first place, because in private discussions they were told that there would be objection to the UC request. All of those things, I think, would fit under the concept of “defeated by filibuster.”

Second, “defeated by filibuster” isn’t technically correct in reference to what happened on the nomination today. Cloture was not invoked, and under regular order that would still leave the nomination as the pending business of the Senate. The leadership is perfectly free to continue the debate on a bill/nomination in which cloture is not invoked. Now, you might say, wait a second Matt, the cloture vote came up under a UC agreement and everyone knows that the cloture vote was the actual vote in this case and that its defeat means the defeat of the nomination for all intents and purposes. And in this case, I agree. But that same argument could be used to justify any description of what happened, including Felicia’s “filibustered the nomination” language. After all, it’s just as easy to argue that everyone knows what that means, too.

I guess my point is that I think the best language is the language that is most precise. I suppose my preferred language for what happened today would be something like  “the Republican minority defeated a motion to invoke cloture and end debate” on the nomination. The objection, of course, is that such a phrase is mealy and maybe muddles the water more than it clears it, because it throws in the concepts of “motion,” “invoke,” and “cloture,” none of which may be familiar to some readers. I guess it could be simplified to “the Republican minority defeated a vote to end debate” and that would work too.

Of course, the lack of the word filibuster might bother some people, but I’m just as well to be done with it; as described above, the use of that word can mean any number of things, and doesn’t really tell you much about what actually happened. If the goal is to concisely and accurately describe what happened and make sure the reader realizes that the will of the majority was thwarted, I’m comfortable with my suggestion. I’m willing, however, to be convinced otherwise.

Looking at the bigger picture, part of the problem here is that it’s actually not that easy to define what is and what isn’t a filibuster. The very concept of a filibuster is something like the concept of evolution: it’s a way of describing a process, not something that exists on its own. There’s no “motion to filibuster”; it’s not part of the rules, but rather a consequence of the rules. Just as evolution describes the process of repeated natural selection, filibuster —in the broadest sense — describes the strategic and tactical process of not allowing majority final-passage votes to occur, either by making it too costly time-wise for the majority to expend the necessary floor time to move the bill under regular order, or by making it utterly impossible to do so by holding together a coalition large enough to block repeated cloture votes, or both.

The key to thinking about the filibuster analytically is to set aside the narrow notion of unlimited debate, and start from the concept of  limited floor time and the much-wider consequences that flow from it. The goal of not allowing a majority final-passage vote is accomplished by a variety of visible tactics — including objecting to unanimous consent requests on motions to proceed or on limitations to debate, introducing large numbers of amendments to a bill, and of course defeating cloture motions. But it also includes the mere relaying of private information that any of those things will happen if the bill is called up.


Once upon a time, today was very important

December 5, 2011

Today is the first Monday in December. Prior to the passage of the 20th amendment in 1933, the start date of each Congress was controlled by Article 1, section 4 of the Constitution, which says that the Congress:

shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.

As I’ve written about at length before, this accidentally created a highly consequential (and somewhat ridiculous) situation in which the congressional elections and the sessions of Congress were very serious out of sync. For example, if the old calendar was in place right now and no special session had been generated by law or by Presidential call, today would be the first day of the 112th Congress. Yes, that’s right. Today would be the first meeting of the Congress elected in November 2010. And yes, the second session of the 112th Congress would not, under normal conditions, happen until next December, after the 2012 elections had been.

A more direct reason today was so important is that in the early days of the union, Speakership contests in the House were quite common, due to lack of party control over backbencher voter and the persistent existence of small factions of 3rd and 4th party Members of the House holding the balance of power. Whereas today the organization of the House on the first day of Congress is largely pro forma, it was often an unknown and fluid situation in the pre-civil war union. These could be protracted battles: on a number of occasions, the House failed to organize for a month or more.  Charles Stewart has done some excellent work in this area if you are interested in reading more.

One of the longest Speakership battles actually occurred 152 year ago today, December 5, 1859, the first day of  the 35th Congress. The Republicans for the first time had the plurality of seats (113), but still not a majority (there were 234 total seats, 118 for a majority). Neither did the Democrats (96), who also had the problem that a large number of the few remaining northern Democrats had declared themselves as anti-LeCompton or Independent Democrats and were not going to necessarily align with the southerners. The balance of power sat with the the American party (9 seats) and the Opposition Party (16 seats), both reflections of the breakdown of the Whigs in south and north.

A two-month deadlock ensued over the election of the Speaker; the Democrats could not coordinate on a viable candidate, each wing finding candidates from the other unacceptable. Neither could a majority be mustered to pass a rule allowing for election by plurality. One of  the original Republican candidates, John Sherman, probably could have gotten over the top except for one problem: he, along with about half of the Republican Members, had endorsed The Impending Crisis of the South, which I’ve written about before. This made him too radical for the minor party voters to touch him, and the Republicans eventually substituted William Pennington of New Jersey, who proved able to win the necessary votes, but less capable of effectively leading the 35th Congress under what eventually became crisis conditions in 1860.

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How a Bill Becomes a Law

December 5, 2011

The House of Representatives is scheduled to take up Senate Concurrent Resolution 32 today, a concurrent resolution to authorize the Clerk of the House to make technical corrections in the enrollment of H.R. 470. That makes this a good time to talk about everything that happens between Congress approving a bill and the President signing it.  I’ll go Q&A style on this one.

Q: What’s enrollment?

A:  Under Article I, section 7 of the Constitution, all bills must be passed by both the House and Senate and then presented to the President prior to becoming law. Enrollment is the congressional process that both physically prepares the legislation for presentment to the President, as well as verifies and certifies that the legislation has indeed passed both chambers, and done so in identical form.

Q: What regulates the process?

A: The Constitution is silent. Federal law (in the surprisingly fascinating Title I of the U.S. Code) provides the basic structure for engrossment and enrollment. Much of the detail is filled in by chamber rules and precedents of the House and Senate.

Q:Wait, what’s engrossment?

A: After a bill is passed by one chamber, 1 U.S.C. 106 requires that it be printed and signed by the corresponding chamber official, either the Clerk of the House or the Secretary of the Senate. Official copies of the bill are printed on either blue paper (House) or white paper (Senate), verified as accurate by the Clerk or Secretary, and then signed as an attestation to the accuracy. The signed version of the bill is the document that is physically transmitted to the other chamber for further consideration. The physical transfer of the papers is called “messaging.”

Q: Back to enrollment. Where does that fit in?

A: After both chambers have passed a bill in identical form, the papers are sent to the chamber that originated the bill, and enrolling clerks under either the Clerk/Secretary prepare the final version, which is called the enrolled version. The clerks again verify the accuracy of the bill as passed by the chambers, and the clerk/secretary of the originating chambers certifies it by signing the bill. The enrolled bill is then signed by the Speaker of the House and the presiding officer of the Senate, or a designee authorized under chamber rules or orders.

Q: How does the bill physically get to the President?

A: This is presentment. In the past, Congress had a joint committee on presentment. In modern times, the responsibility lies with the Clerk of the House or the Secretary of the Senate, depending which chamber had responsibility for enrollment, which turns on where the legislation originated. The materials are physically delivered to the White House (or, in some cases, to the President at a different location) and timestamped to verify the date on which the constitutional clock begins for the President to act on the measure. The Clerk/Secretary then report their actions back to the chamber.

Q: What can go wrong in engrossment and/or enrollment?

A: Any number of mistakes are plausible. The most important is an error that results in an engrossed/enrolled bill that doesn’t reflect the intent or actions of a chamber. On the intent side, this might occur if a chamber inadvertently takes a final vote on incorrect or incomplete text. Conversely, a chamber might vote on the intended text, but the engrossed or enrolled bill might contain different text.  A second class of errors are technical ones, often errors made in drafting the original legislation, which then flowed through the legislative process. This could include wrong section numbers or table of contents mistakes. Third, errors could occur in the actual printing  at GPO. Finally, at the enrolling phase, there is also the issue of non-identical texts being voted on in the second chamber.

Q: How are engrossment problems rectified?

A: During engrossment, typographical errors in GPO printing may be “star printed” to fix the problem without further House or Senate action. If the problem is technical or substantive in nature, then the question turns on who has possession of the papers. If the papers have not been transmitted to the other chamber, then the chamber can authorize (via unanimous consent) its own officials to changes. If the papers have already been transmitted across the Capitol, however, then the chamber must adopt a resolution requesting the return of the engrossed bill or resolution.

Q: What if a problem is discovered during enrollment?

A: It can only be corrected by concurrent resolution of the two chambers. That is what is going on with S.Con.Res.32 today. But like engrossment, it depends on where the bill is in the process. If the bill has not yet been signed by the Speaker or the presiding officer, a concurrent resolution can just direct the Clerk or Secretary to make necessary changes. If it has already been signed but not sent to the President, a concurrent resolution will also do the job, but must rescind the signatures as well, ultimately requiring re-enrollment. If the papers have already been delivered to the President but not signed into law, a concurrent resolution can request the return of the bill to Congress. If the President has already signed the bill into law, then a new law must be passed to make changes.

Q: What if a bill is enrolled but both chambers didn’t actually agree to the same text?

A: In theory, a federal court could strike down either an entire law or the portion of the law that was not properly enacted. In practice, the courts have tended to decline to do so. Under the 1892 Supreme Court decision in Marshall Field & Co. v. Clark (143 U.S. 649), the Court adopted a rule of not “looking behind” the enrollment process. That is, the courts will not seek to verify whether the legislation, as signed by the Speaker and Presiding Officer of the Senate, was properly enrolled. The became an issue in the 109th Congress, with P.L. 109-171. An error in Senate engrossment led to text being enrolled that was not the intent of either chamber. During the enrollment, the text was changed to what was the intention of both chambers, but no concurrent resolution was adopted to do so; in effect, text was enrolled that neither chamber has actually agreed upon in its final form. Several lawsuits were brought against the law on these grounds, but none were successful.

Q: When does the clock start on the President’s 10-day window to sign or veto a bill?

A: By custom, it starts when the bill gets to the White House. But this creates problems: what if the President is going abroad for two weeks — can Congress hold legislation and the present it to the White House then, in an attempt to circumvent a veto? It’s not clear. In the past, Presidents have informally negotiated with Congress to delay presentment in such situations, or to deem presentment to have taken place upon the President’s return.

Q: So does Congress have the perogative to not enroll/present bills passed by both chambers?

A: This is a tricky question, especially since the presentment is the job of one chamber, not both. In theory, it shouldn’t seem like Congress would ever want to permanently abandon presentment, since they are the ones trying to make the law. (One can think of wild hypotheticals such as the leader of a chamber vehemently opposing a bill and thus refusing to sign the enrolled copy, or a Congress that changed its mind about legislation post-enrollment, but they don’t seem realistic and probably have relatively simply remedies).

Q: What about delays in enrollment/presentment?

A: Yes. There are certain circumstances where delay in presentment might be in the institutional or political interest of Congress. First is in the case of pocket vetos. If Congress is worried that the President might pocket veto a law while they were adjourned in August or between sessions (to avoid an override attempt or a veto message), they might hold a presentment until there were less than 10 days until they returned from adjournment. (Of course, the constitutionality of the pocket veto in non sine a die adjournment situations is hotly contested and a muddled area of Court rulings).

Q: When else?

A: Politically, there are a few situations in which delay might be profitable. The first is if a veto is expected. In those cases, the congressional leadership might like some extra time to begin building both a public case in favor of the bill (to put pressure on the President) and an internal whipping operation to solidify congressional support for an override. This was apparently the case in 1991, when Congress held a unemployment benefits bill for eight days, while leaders gathered support for overriding an expected veto. Another situation would be in the timing of multiple bills. If Congress passed bill A, which the President likes, but not yet bill B, on which they fear he will veto, they might hold bill A while bill B passes, and then send bill B to the White House first, keeping bill A in reserve as leverage in the hopes the President will sign bill B. Finally, congressional leaders may have political incentives to delay signing an enrolled bill if they wish to publicly promote the bill in a “signing ceremony,” which might benefit from advantageous, but delayed, scheduling.

Q: How long can Congress delay enrollment and presentment?

A: It’s not clear. The Constitution is silent on the matter, and so it is likely that the only controlling rules would be either federal law or chamber rules. Chamber rules do not specify a time limit on the clerical tasks related to enrollment. Presentment, however, is supposed to occur “forthwith” after the enrolled bill is signed. This raises a second issue, which is that strategic delays in enrollment and presentment are difficult to distinguish from one another, given that any delay might be occurring before or after signatures had been affixed. In any case, it is unlikely that enrollment and presentment would be seen as anything but an internal congressional issue, and therefore delays could only be remedied by floor action in one or both chambers.

As a general matter, enrollment might be expected to take at least some amount of time, simply because the bill needs to be printed, reviewed, and signed. Depending on length, the typical bill can be enrolled in a relatively short time — in most Congresses the average time between second-chamber passage of a bill and presentment is only a handful of days. And in the case of many bills, same-day presentment has bee accomplished. On the other hand, H.R. 1757 in the 105th Congress had a 176 day delay between second-chamber passage and presentment. 


Reading Week

December 3, 2011

Some stuff I enjoyed reading from this week:

1. I consider myself a very pragmatic libertarian. But some things cannot be compromised. Like the rule of law and habeas corpus. So do me a favor and read Conor Friedersdorf’s coverage before, then during, and finally after the Senate debate on indefinite detention of U.S. citizens. Also on this, Glenn Greenwald slaps the Obama administration. As I’ve said in the past, I will not vote for candidates  who support this crap. Obama. Romney. Forget it. And I don’t buy the argument that there are more important issues on which to base your vote.

2. Seth Masket reviews Herman Cain’s foreign policy acumen. Here’s a more serious post from him on Newt’s chances.

3. Tom Pepinksy sits through jury duty selection and ponders issues of compliance.

4. John Bernstein reminds everyone that Herman Cain wasn’t done in because poor staff provided him with bad spin. He also makes a good point about Barney Frank that also has wider applications for thinking about what elected officials hold what jobs.

5. Brendan Nyhan on how journalists should approach candidate claims.

6. Suzy Khimm has a nice visual on the decline of congressional hearings. She ties it to a decrease in oversight, which is certainly a factor, but it’s related to a much wider set of institutional changes in the House and Senate, none of which are great news.

7. Scott Page is running a free online class on thinking with models.

8. I still think Nate Silver is wrong to be so poll-driven in his assessment of the GOP primary, but this is a nice point about why the world might be different now, although I see other, more directly plausible implications of it than primary elections.

9. Erik Voten on Google search as a predictor of political behavior, with links to some interesting reserach.

10. Pretty much everyone has already linked to this excellent Jonathan Chait article on how liberals think about liberal presidents.

11. Newt Gingrich is not as bad as you think on civil liberties. He’s worse. And here’s a Elias Isquith column on Gingrich. And Bernstein again, pointing out how Newt tends to strip-mine his political relationships.

12. I continue to believe that Mitt is a huge buy at 50% on Intrade. Huge. But if this becomes a real race, then the South will play a bigger role, I think, than has currently been discussed, and thinking like this might have some merit. Might.

13. Donald Trump will be hosting a debate. A presidential debate. WTF I’ve found the live-tweeting aspect of the 2012 GOP primaries to be one of the best media breakthroughs of my lifetime, both on the serious side and the humor side. But a Trump-moderated debate might actually crash Twitter. I can’t wait.

13. It’s nonsense, but do read Tom Edsall’s NYT piece on Obama abandoning the white working class. Just so you are fully back-filled for the various commentary, which you might want to start here.

14. The National Review’s Ramesh Ponnuru endorses Romney. Ramesh is not one of my favorite conservatives, but I think this is the modal argument you are going to be hearing from smart, sane conservatives who want to win.

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Friday Congress Blogging: Unanimous Consent

December 2, 2011

This post is a rerun of something I wrote quite some time ago on a different blog. But I get asked about it so often that I thought it was worth running again here. Here’s the question:

If the Senate has unlimited debate, how come they just said that there would be 4 hours of debate on bill X?

The answer is that the Senate has adopted temporary rules by unanimous consent. That is, every single Senator — even those that might oppose the legislation in question — has agreed to give up some of their individual rights (namely the right to unlimited debate) during the consideration of the bill.

This, of course, raises some questions:

1) Why adopt temporary rules to consider a bill?
2) How does unanimous consent work?
3) Can you reneg on your consent after you give it?
4) Why would a Senator opposed to a bill ever grant his consent to limit debate?

We can take these one at a time.

Why adopt temporary rules to consider a bill?

Mainly because the standing rules of the Senate — the rules that would be in force without a unanimous consent agreement for temporary rules — are an extraordinarily difficult means by which to pass a bill. The following are two key features of the standing rules in this regard:

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. 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.

These two features — unlimited debate and no restrictions on amendment germaneness — form the essential conditions under which bills are debated in the Senate under the standing rules. When combined with the a third pillar of reality in the Senate — the general scarcity of floor time available during a session of Congress — it becomes imperative that the majority leadership finds ways to consider bills under conditions that limit debate and amendments.*** They do this by reaching unanimous consent agreements among all Senators.

How does unanimous consent work?

Fundamentally, it works on the principle that “if no one objects, then there cannot be a violation of Senate rules.” Parliamentary procedure in most legislatures requires that formal objections be lodged against rules violations. Absent such objections, it is not the job of the chair to enforce the rules. Thus, at any time, the person controlling the floor may ask for unanimous consent to do something that they otherwise could not do under the written standing rules.

This happens dozens of times a day on a casual basis; the Senate simply could not be run with any efficiency under the existing rules. So Senators will often be heard saying, “I ask unanimous consent to dispense with the reading of the journal” or “I ask unanimous consent to dispense with the current quorum call” or “I ask unanimous consent to skip the reading of the amendment.” All of these are things that could not be done if even a single Senator objected. And they are all things that would take a significant amount of time if they had to be done as stated in the rules. So instead, by unanimous consent, they are waved. And things proceed quickly.

Any Senator who wants to play hardball can go sit in their desk all day and just object to all verbal unanimous consent requests. It would bring the Senate to a grinding halt (although it wouldn’t win the Senator many friends or future allies). This has happened on occasion. Senator Metzenbaum used the tactic in the 1970s on several occasions, and quickly was mollified by the leadership.

Unanimous consent agreements for the consideration of a bill are slightly different. Often called “time agreements,” they will often be printed and placed in the Congressional Record. They might cover all aspects of debate on a bill, specifying the amount of time for debate, what amendments are allowed, the amount of time for debate on each amendment, and a specific time at which a final vote will be taken. Or they may only specify one of those things. They may be done piecemeal as events develop during a floor debate. You may see quorum call after quorum call occur during a floor debate as leaders attempt to hammer out a time agreement. It is entirely based on what the leadership can arrange with both the rank and file of their party and the minority. Here’s an example of a full agreement:

Ordered, That when the Senate proceeds to the consideration of bill X, , debate on any amendment in the first degree shall be limited to 1 hour, to be equally divided and controlled by the mover of such and the manager of the bill, and debate on any amendment in the second degree, debatable motion, appeal, or point of order which is submitted or on which the Chair entertains debate shall be limited to 30 minutes, to be equally divided and controlled by the mover of such and the manager of the bill:

Provided, That in the event the manager of the bill is in favor of any such amendment or motion, the time in opposition thereto shall be controlled by the Minority Leader or his designee;

Provided Further, That no amendment that is not germane to the provisions of the said bill shall be received.

Ordered Further, That on the question of final passage of the said bill, debate shall be limited to 6 hours, to be equally divided and controlled by the Majority Leader and the Minority Leader, or their designees: Provided, That the said Senators, or either of them, may, from the time under their control on the passage of the said bill, allot additional time to any Senator during the consideration of any amendment, debatable motion, appeal, or point of order.

A UC agreement might even specify that 60 votes are required for passage of the bill — this is a way to avoid a filibuster and cloture vote without having to actually go through the time consuming process of cloture. Similarly, even when the Senate is seeking cloture on a bill, consent agreements are usually reached on things like the timing of the cloture vote (which by the rules can only be taken at specific times).

Unanimous consent agreements are usually worked out informally. Obviously, if any Senator objects, they fall apart. So it is incumbent on the leadership to accommodate all Senators in the process.

Can you reneg on your consent after you give it?

No. Once an agreement is reached, the only way to overturn it is by a subsequent unanimous consent agreement. So not only can 1 Senator not back out of a unanimous consent agreement that has been reached on the floor, but 99 Senators cannot back out of an agreement if there is 1 Senator who objects to changing it.

Why would a Senator opposed to a bill ever grant his consent to limit debate?

Because it allows them leverage over the issue at hand as well as other issues. There are many, many bills that the leadership would like to pass, but can only afford to bring up if they know they won’t have to spend weeks on it and fight through a cloture vote. Therefore, it is in leadership’s interest to modify and compromise with both their own rank and file and the minority party. This generally takes two forms: individual Senators can get concession on the contents of the bill at hand, either by consenting only to the consideration of a substitute compromise bill or requiring specific amendments be allowed or not allowed; similarly, Senators can gain favor on other bills that they are interested in — basically a logroll in which they allow the leaderships bill to come up under unanimous consent in exchange for either concessions on another bill or promises to bring their bill up on the floor.

If you think about this for a few minutes, you begin to realize (a) how important informal negotiation is in the Senate, (b) how much leverage individual Senators have, and (c) how powerful the leadership’s incentive is to try compromise instead of filibuster-breaking. When any individual Senator can derail the entire chamber by objecting to unanimous consent requests for things like the reading of bills and the ending of quorum calls, or more likely just objecting to time agreements, it becomes paramount for the leadership not to ram things through when playing nice is at all possible. Of course, there are limitations to individual power: Senators who continually object to agreements (or sit on the floor and object to trivial things, as mentioned above) can be frozen out politically and legislatively, which tends to keep people largely in line.


**One might ask: why not just change the Senate standing rules? Two quick answers: first, it takes a super-supermajority (2/3 of all Senators) to get cloture on a debate to change the rules. Second, individual Senators perceive the current arrangement of the rules as beneficial, since the unanimous consent system gives them leverage over all bills, and particularly over all bills that are important to them. There’s no doubt that the majority leadership would love to change the rules while they are the majority. But the can’t, because of the supermajority requirement, and they are wary of it because they might someday not be in the majority.

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Good, Bad, Ugly. Well, at least the latter two.

December 1, 2011

Two institutional items from yesterday:

1. It’s baaa-ack. House Budget Committee Chairman Ryan and Ranking Member Van Hollen introduced a bill yesterday (H.R. 3521) to give the President a  line-item veto over appropriations legislation. Since the statutory line item veto legislation (P.L. 104-30) enacted in 1996 was ruled unconstitutional by the Supreme Court in 1998, the Ryan/Van Hollen bill is technically a process known as “expedited rescission.” It doesn’t directly give the President the power to veto parts of a bill; instead, it allows the President to propose line-item rescissions to any spending bill for 45 days after the bill becomes law, with the proposed rescissions getting fast-track authority for an up-down vote in Congress. The President would also have authority to not obligate the funds while the rescissions were adjudicated. Two versions of expedited rescission are plausible: one in which both chambers of Congress must approve the rescissions for them to go into effect, another in which they go into effect automatically unless one (or both) chambers disapprove. The new bill is of the former variety.

Expedited rescission seems constitutional on its face, but just as bad an idea as the traditional line-item veto. The main problem is still the same: there’s a major political power transfer from Congress to the President, without any guarantee that the result will be budgetary savings. It just fundamentally changes the veto-bargaining. With the power to cancel pieces of a bill, the President gains significant leverage over each individual Member, all of whom must live in fear of the White House slashing their favorite appropriations. This leverage could (and would) be used by the White House across all policy areas, spending or otherwise, as the President used threats of appropriations cuts to buy up votes for his position on any bill being considered, be it a bill to cut spending, increase spending, or make social policy. A related secondary problem is that congressional leaders might have a harder time cutting deals on appropriations bills, given that they wouldn’t be able to credibly commit to language with the possibility of Presidential rescissions looming in the future.

In the 90’s, the Supreme Court was able to save Congress from itself on the matter. This time, that out would not be available. In fact, once this power is given to the President, the ratcheting-up problem (in which Congress can give the President increased power by majority, but can only rescind it over veto by 2/3 supermajority) means  it’s probably not coming back. Some people might mollify themselves that expedited rescission still leaves the power in the hands of Congress and doesn’t give away the whole store to the President. Maybe so, but it still gives away a lot of it. How much support will Members be able to muster to reject an up/down vote on a spending item that the President is publicly saying must go? Perhaps some. But probably not enough to make Members feel secure in the face of White House pressure and threats.

2. Allowed vs. Required. There was an excellent debate on the Senate floor yesterday over Senate Amendment 1126 to S. 1867, the FY12 Defense Authorization Act, which followed a similar debate on SA 1107 (which failed 38-60 on Tuesday). Here’s the text of SA 1126:

On page 360, between lines 21 and 22, insert the following:

(e) Applicability to Citizens.–The authority described in this section for the Armed Forces of the United States to detain a person does not include the authority to detain a citizen of the United States without trial until the end of the hostilities.

You can imagine the liberty vs. security debate that ensued, and I recommend watching some of it on C-SPAN. (The primary debaters were Sens. Kirk, Lee, Graham, Levin, and Durbin). There’s also lots of good commentary out there, and I’d start with this Slate piece, mostly because it has just a ton of links in it.

One thing that struck me from the debate is that a lot of the arguments implicitly gave the Supreme Court more authority than it actually has within the Constitutional system. For example, much of the argument against the amendment relied on the idea that the Supreme Court had upheld the constitutionality of indefinite detention for enemy combatants, while the proponents of the law tended to attack this argument by either (a) denying that the court had extended that logic to U.S. citizens on U.S. soil or (b) implicitly arguing that the Court was misreading the plain text of the 4th, 5th, and 6th amendments. In any case, much of the back and forth concerned how to interpret the Court’s ruling in Hamdi v. Rumself and other relevant decision.

This largely puts the horse before the cart. When the Supreme Court upholds a statute as constitutional, they are merely ruling on its permissibility under the Constitution, not on its wisdom and certainly not that it is required under the Constitution. The wisdom of individual pieces of legislation — and the Court often says as much in its decisions — is not its concern.A statute struck down by the Court might be the greatest or most well-intended idea since sliced bread, and a statute upheld may be the worst injustice known to man or borne of bad motivations. It’s nice when that’s not the case, and bad laws are struck down (see line-item veto, above) and good ones upheld (ex. 1964 Civil Rights Act), but it’s just as often the case that unwise policies are constitutional (see Korematsu v. United States) and well-intentioned laws are not (see  Lopez v. United States).

But while the wisdom of laws is not the Court concern, it is precisely Congress’s concern. And this is where yesterday’s debate was somewhat lacking. The proponents of the amendment argued at length that the non-amended policy in the bill was unconstitutional and the opponents of the amendment argued that it was constitutional, but precious little time was spent on the issue of whether indefinite detention of U.S. citizens, whether constitutional or not, was good policy. News flash: the Courts did not set up the military tribunal system. The Courts did not write the statues granting presidential authority in the war on terror. And the Courts do not write the laws regarding indefinite detention. Congress does. It’s simple but often lost: if Congress wants to give the President the power to indefinitely detain U.S. Citizens, then can write a law that is subject to Court review of its constitutionality. But if Congress wants to repeal such a law, or not write one in the first place, they have absolute sovereign authority to do so, and no Court has the power to change that.

Now, there was a strand of the debate yesterday that seemed to take issue with this, on the following theory: Congress has the responsibility to do whatever it can to protect the country, and therefore must give the President every bit of power that it allowed under the Constitution. Therefore, whatever the outer-limits of what the Court allows is what we should do. In other words, the wisest policy is simply the maximum security policy allowed under the Bill of Rights. I reject this argument on both policy and principle grounds. On policy grounds, it’s a strawman: no one is honestly proposing that Congress do everything it (practically) can for national security. That would involve massive increases in the number of federal agents, things like cameras on tons of public street corners, massive restrictions on entry visas, and so forth. There are obviously trade-offs being made in the security debate, and therefore, because we are not simply interested in doing the maximum possible bar none, the wisdom of any individual policy is worthy of consideration.

But more importantly, I reject the argument on principle, because it makes life too easy on Congress. The Supreme Court should not be a crutch on which to lean policy positions.** Nor is the constitutionality of a policy position under the Bill of Rights the end of discussion about liberty concerns within a policy. To understand policymaking that way would let Congress off the hook for the responsibility for its own choices.  Now, I don’t want to sound like some weak-kneed liberal here. I’m not. But I do think that there is room for discussion of the constitution in a debate about the wisdom of a policy that is, on the legal merits, utterly constitutional. That may sound odd, and I certainly don’t want to reduce it to some sort of “spirit of the Founders intent” nonsense, but I think it’s both necessary and practical. I’m not arguing for sovereign congressional interpretation of the Constitution, but I am arguing for the idea that policies can be constitutional in a legal sense and at the same time be unwise precisely because they seem antithetical to the spirit of the constitution.


**One place this will undoubtedly turn up is in next year’s SCOTUS decision about the health care mandate. There are two unknown truths about the mandate: it’s either a good idea or a bad idea, and it’s either constitutional or unconstitutional. But knowing one tells you nothing about the other. Just as it’s not constitutional simply because it’s a good idea, it’s not a good idea simply because it’s constitutional. Unfortunately, in the wake of the decision, I think a lot of the wisdom of the policy is going to be read into its determined constitutionality, regardless of which way the decision goes.

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